Natick Public Schools – BSEA # 11-3131



<br /> Natick Public Schools – BSEA # 11-3131<br />

COMMONWEALTH OF MASSACHUSETTS

Division of Administrative Law Appeals

Bureau of Special Education Appeals

In Re: Natick Public Schools

BSEA # 11-3131

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 February 15 and 16, 2011 in Natick, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:

Student’s Mother

Student’s Father

Suzanne Flax Private Speech-Language Pathologist

Karen Janowski Private Assistive Technology Consultant

Steven Imber Private Educational Consultant

Nancy Nichols School Psychologist, Natick Public Schools (Natick)

Jennifer Digiacomo Teacher, Natick’s Brown Elementary School

Lynne Reulbach Health Teacher, Natick’s Wilson Middle School (MS)

Aviva Costello Special Education Teacher, Natick’s Wilson MS

Rose Scampini Special Education Teacher, Natick’s Wilson MS

Marie Norton Technology and Media Literacy Teacher, Natick’s Wilson MS

Lynn Bird Speech-Language Pathologist, Natick’s Wilson MS

Gina Dalan Natick Public Schools

Anna Nolin Principal, Natick’s Wilson MS

Lauren Gilbert Assistant Superintendent for Student Services, Natick

Laurie Martucci Attorney for Parents and Student

Alisia St. Florian Attorney for Natick

The official record of the hearing consists of documents submitted by the Parents and marked as exhibits P-1 through P-48; documents submitted by Natick and marked as exhibits S-1 through S-26; and approximately two days of recorded oral testimony and argument. As agreed by the parties, written closing arguments were due on March 4, 2011, and the record closed on that date.

A. ISSUES

The issues to be decided in this case are the following:

1. Were the IEPs proposed by Natick for the 2008-2009 school year (including the summer of 2009) reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment?

More specifically, Parents make the following claims regarding these IEPs:

· Student was improperly denied the opportunity to be placed within an inclusion classroom for social studies and science.

· Student was denied appropriate support for her participation within the health and technology literacy class.

· The IEPs did not include measurable goals and objectives.

2. Did Natick commit procedural violations during the 2008-2009 school year (including the summer of 2009)?

More specifically, Parents make the following claims of procedural violation:

· Natick predetermined Student’s placement.

· Natick failed to arrange for Parents to observe the ACCESS Program.

· Natick failed to include a regular education teacher at IEP Team meetings.

· Natick failed to allow Parents to fully participate as partners in the IEP Team process.

3. If one or more of the IEPs were not appropriate or if Natick committed a procedural violation, are Parents entitled to relief; and if so, what relief is appropriate?

Parents seek the following relief for substantive and procedural violations:

· Reimbursement for out-of-pocket expenses for additional services.

· Reimbursement for evaluations conducted by Ms. Janowski and Dr. Imber.

· Payment of past and prospective transportation costs.

B. FACTUAL BACKGROUND

1. Introduction

Beginning in September 2009 and continuing through the present, Parents have enrolled their daughter at the Christa McAuliffe Regional Charter Public Middle School (McAuliffe), which is a public charter school located in Framingham, MA.1 Parents do not bring any claims against McAuliffe. Prior to September 2009, Student was enrolled in the Natick Public Schools (Natick) and all claims are against Natick.

Parents take the position that Natick denied Student her substantive and procedural rights during her last year at Natick, which was the 2008-2009 school year when Student was in 5 th grade. During that school year, Student attended a substantially separate educational program (called ACCESS) for all of her academic subjects, including social studies and science, and was included with her typical peers in all other classes and activities.

2. Student Profile

Student is a fourteen-year-old young woman who lives with her Parents in Natick, MA.

Student is a delightful girl who has a positive attitude, determination, strong work ethic and motivation to do well in school. She also has many good social skills, and she has no behavioral difficulties. She tends to be quiet and reserved but participates to a greater extent as she becomes more comfortable with the setting. Testimony of Imber, Costello, Scampini, Nichols; exhibits P-15, S-16.

Student also has substantial cognitive limitations with respect to her comprehension, reasoning and memory, with test scores in the low 70s (or below) on the sections of the Wechsler Intelligence Scale for Children-IV that pertain to her comprehension, reasoning and memory. These learning limitations impair Student’s ability to understand what she hears and reads. Student also has significant auditory processing deficits, placing her within the bottom 4 th percentile compared to her age-normed peers. This deficit limits her ability to access instruction and discussions in a regular education classroom. Testimony of Imber, Costello, Scampini, Nichols; exhibits P-15, S-16.

3. Educational History

Beginning when she turned three years old, Student was provided an individualized education program (IEP) by Natick under the Individuals with Disabilities Education Act (IDEA) and state special education law. Natick continued to provide Student with special education services until she enrolled at McAuliffe in September 2009 for her 6 th grade. Student’s more recent educational history at Natick is summarized as follows.

During the 2007-2008 school year when Student was in 4 th grade, she attended Natick’s ACCESS program at the Brown Elementary School. The ACCESS program provided her with a substantially separate classroom for English language arts and math. As was the case with other 4 th grade ACCESS students, Student was included in a regular education classroom for social studies and science. Student was supported in the classroom with a 1:1 aide. She also participated in other classes and activities (for example, physical education, recess, and lunch) with typical students. Parents were told that their daughter was making progress and that she was doing well, including in her inclusion social studies and science classes. Student’s 4 th grade teacher (Ms. Digiacomo) testified that Student was at the lower end of the 4 th grade ACCESS students regarding academic ability. Testimony of Father, Digiacomo.

Parents had been concerned generally about their daughter’s academic progress since kindergarten, and these concerns continued from that time into 4 th grade. During 4 th grade and through the present, Parents privately obtained speech-language services from Susan Flax because of their concerns regarding Student’s language development. Parents were also concerned about their daughter’s progress in math during this school year and hired a math tutor. Testimony of Father, Flax.

An independent educational evaluation was conducted by Susan Grant, MEd on April 17, 2008. In her written report, Ms. Grant concluded that Student’s “severe learning disabilities, most pronounced in the language area, are consistent with her borderline range on cognitive tests.” The report continued: “This evaluator feels strongly that [Student] will continue to make slow, steady progress ….” Ms. Grant then recommended that for 5 th grade, Student receive all of her academic instruction, including social studies and science, within a self-contained program that is designed for students with significant learning disabilities and no behavior difficulties. Ms. Grant shared her views regarding Student at a Team meeting. Testimony of Father; exhibit S-16.

The instant dispute pertains to Student’s 5 th grade which was the 2008-2009 school year. There are four IEPs that pertain to the disputed 5 th grade year. The first of these IEPs was discussed during a Team meeting on May 20, 2008, which was near the end of Student’s 4 th grade. At that meeting, the Team discussed Student’s transition from 4 th grade at the Brown Elementary School into the 5 th grade at the Wilson Middle School. Student’s services and placement for 5 th grade were discussed, including a continuation of the 4 th grade ACCESS program into 5 th grade. For 5 th grade, ACCESS students typically receive English language arts, math, social studies and science instruction within a substantially-separate classroom although the ACCESS program allows students to participate in any 5 th grade inclusion classes to the extent appropriate. The Natick members of the Team determined that Student should be placed within the ACCESS substantially separate classroom for 5 th grade social studies and science. Father testified that there was “no negotiation” during the meeting, but rather the Natick Team members informed Parents what services and placement would occur for 5 th grade. Similarly, Mother testified that she felt that during the Team meeting, it was a “done deal” with respect to Student’s services and placement for 5 th grade. Testimony of Father, Mother, Costello, Scampini.

The service delivery grid for the proposed IEP that was developed as a result of the May 20 th meeting called for a discontinuation of inclusion support services that were provided for 4 th grade social studies and science and, instead, provided that Student would receive special education instruction in a substantially separate setting for 5 th grade social studies and science. The IEP service delivery grid also continued to indicate that Student would receive special education instruction in a substantially separate setting for math and English language arts. Pursuant to this IEP, Student would be included in a regular education 5 th grade health, technology and media literacy class without any direct special education services. Student would also participate with typical children in other classes and activities, such as gym, recess and lunch, without any direct special education services. In addition, Student would receive counseling from a psychologist for 45 minutes, once per month and speech-language services for 45 minutes, once per week during 5 th grade. Summer services for 2009 included speech-language services and special education instruction for one month. The IEP placement page called for placement in a substantially separate classroom. Exhibits P-1, S-9.

In May 2008, Parents were provided a tour of the proposed classroom where Student would be placed for 5 th grade. This provided Parents with an opportunity to see the facilities but not the “proposed placement in action.” Testimony of Father; exhibit P-1 (August 5, 2008 letter from Parents to Natick).

Soon after the May 20 th IEP Team meeting, Parents learned that there was a substantially separate program at the Wilson Middle School for 5 th grade, other than the ACCESS program to which their daughter had been assigned. They asked Natick for permission to observe this other program (referred to as the LEAPP program) but were not allowed to do so. The LEAPP program was for the purpose of educating children with learning disabilities who have average to high-average cognitive abilities, and Natick had determined that this program would not be appropriate for Student, given her cognitive limitations. Testimony of Father, Mother, Gilbert.

In August 2008, Parents partially accepted and partially rejected the IEP. Parents specifically rejected the following: (1) Parents requested that Parents’ letter of August 5, 2008 to Natick be referenced within the parental input part of the IEP (the August 5 th letter, which is attached to the IEP, makes a number of general complaints regarding Natick and its educational services for Student but the letter does not reference the issue of inclusion in 5 th grade social studies and science, the lack of special education or related services for health, technology and media literacy, or the alleged lack of measurable goals and objectives); (2) Parents requested that a communication folder be initiated for purposes of communication between home and school; (3) Parents requested a revision of Goal # 1, by adding the following Benchmark # 4: “[Student] will answer wh-questions on short paragraphs using visualization techniques in 4 out of 5 opportunities”; (4) Parents requested use of the Reading Milestones program and the Edmark Program; (5) Parents requested use of the Saxon Math program; and (6) Parents pointed out that the “Non participation justification still does not match page 12.” Parents otherwise accepted the IEP. Parents did not accept the placement page of the IEP. Testimony of Father; exhibits P-1, S-9.

Student entered the 5 th grade in the fall of 2008. IEP Team discussions continued at an IEP meeting on September 4, 2008. During this meeting, Student’s social studies and science classes were discussed, with Parents taking the position that their daughter could and should be educated in an inclusion setting with supports and modifications. Natick Team members disagreed, taking the position that because of the increased rigor and higher expectations of social studies and science in the 5 th grade (as compared to 4 th grade), Student should be educated within a substantially-separate classroom for these subjects. Testimony of Father.

On the basis of the September 4 th Team meeting, an amended IEP was proposed for 5 th grade. The service delivery grid for this IEP continued to propose that Student be taught by special education staff in a substantially separate classroom for social studies, science, math and English language arts. Counseling from the psychologist and speech-language services were changed from direct services in the previous IEP to consultation services in this IEP. These services from a psychologist and speech-language pathologist were provided within the context of Natick’s Wildcat Café, which provides an opportunity for students to develop social skills within a small group of special needs students. Student participated twice each week in the Wildcat Cafe. Summer services were also proposed. No other special education or related services were proposed in this IEP. The IEP placement page called for placement in a substantially separate classroom. Testimony of Bird, exhibit P-2, S-7.

On September 8, 2008, Parents refused the placement, and partially accepted and partially rejected the IEP. Parents’ partial rejection of the IEP consisted of a note from Parents that explained: “I am still waiting for the ‘Wildcat Café’ program description ….” and “I am apprehensive on the language processing goal…” The IEP was otherwise accepted by Parents. Exhibits P-2, S-7.

By letter of November 10, 2008 to Natick, Parents’ attorney expressed concerns regarding the appropriateness of Student’s services and placement, and requested that the IEP Team reconvene as soon as possible. Testimony of Father; exhibit P-7,

The IEP Team reconvened and continued discussions of Student’s 5 th grade at an IEP meeting on November 17, 2008. Parents expressed concerns about Student’s educational program, including whether she could access the health, technology and media literacy class without special education services or supports. Parents remained dissatisfied as to the explanation for their daughter needing to be in a substantially separate classroom for social studies and science. No regular education teacher attended this meeting. The IEP proposed as a result of this meeting included substantially the same services and placement as the previous IEP. Testimony of Father; exhibits P-3, S-3.

On December 14, 2008, Parents refused the placement, and partially accepted and partially rejected the IEP that was proposed from the November 17 th meeting. Parents’ partial rejection of the IEP was the above-referenced note from Parents that explained: “I am still waiting for the ‘Wildcat Café’ program description ….” and “I am apprehensive on the language processing goal…” Parents also attached their above-referenced letter of August 5, 2008 to Natick. The IEP was otherwise accepted by Parents. Exhibit S-3.

Because of their continuing concerns regarding the appropriateness of their daughter’s education by Natick, Parents contacted Steven Imber, PhD, in late November or early December 2008. Dr. Imber is a private educational consultant. They met with Dr. Imber in early December 2008 and on April 13, 2009, Dr. Imber conducted a comprehensive psychoeducational evaluation of Student that consisted of administering six test instruments (KeyMath, Peabody Picture Vocabulary-3 rd ed., Stieglitz Informal Reading Inventory, Test of Written Language-4 th ed., and Woodcock Johnson III tests of achievement), reviewing IEPs, progress reports and previous evaluations, and interviewing Parents.

In his report and testimony, Dr. Imber faulted Natick’s decision not to include her in social studies and science. With respect to the remainder of the IEP, Dr. Imber found Natick’s educational program and structure for Student in 5 th grade to be appropriate, except that Dr. Imber testified that the instruction should have been more intensive because Student was not making effective progress in a number of areas. Specifically, Dr. Imber testified that Student should have received 1:1 instruction from special education staff. He also testified that the Wildcat Café appeared to be a good program for Student, but that regular education students should have been added to the group at some point in time. Testimony of Imber; exhibit P-15.

Dr. Imber’s written report was shared with Natick, and on June 11 and 18, 2009, the IEP Team met with Dr. Imber to review his report and recommendations. The Natick members of the Team did not adopt Dr. Imber’s recommendations referenced above. A regular education teacher did not participate in the Team meetings. On the basis of these meetings, an amended IEP was proposed for the last part of 5 th grade (from June 18, 2009 through the end of the school year), the summer of 2009, and for 6 th grade. The services and placement in this IEP were substantially the same as the previous IEP. On June 20, 2009, Parents rejected the IEP in full and refused the placement. Testimony of Father; exhibits P-4, S-1.

During the June 18 th Team meeting, Father raised the question of whether an assistive technology evaluation should be done. When Natick declined to do this evaluation, Parents privately hired Karen Janowski, an assistive technology consultant, to evaluate their daughter. Ms. Janowski assessed Student on July 31 and August 7, 2009 and issued a report dated September 3, 2009. The report made a number of recommendations as to how assistive technology could be used to enhance Student’s education. Testimony of Father, Janowski; exhibit P-41.

Natick teachers and staff testified that Student made academic and social progress during 5 th grade. They explained that the progress was evidenced in learning specific skills in math, making gains in reading skills (for example, in spelling) and improving her reading comprehension. Her academic gains were characterized as modest but nevertheless as “good progress” within the context of her learning deficits. Ms. Bird testified that Student also made social progress within the classroom as well as in the Wildcat Café. For example, at the beginning of the school year in the Wildcat Cafe, Student was very quiet and needed prompting even to give a one-word answer, but by the end of the school year, she would talk about an activity—for example, where she went and what she did. Testimony of Costello, Bird, Scampini.

For the summer of 2009, Parents declined to access the services proposed by Natick. Instead, Parents privately obtained speech-language services and tutoring for their daughter. Testimony of Father.

In July 2009, Parents approached the McAuliffe School and inquired about their daughter attending McAuliffe for the next academic year (6 th grade). Testimony of Father.

On August 28, 2009, Parents enrolled their daughter in McAuliffe and notified Natick that their daughter would not be attending Natick’s proposed 6 th grade placement. In September 2009, Student transferred to McAuliffe where she attended 6 th grade. Testimony of Father.

Student has continued to attend McAuliffe through the present, where she is placed in inclusion classes for English language arts, math, science and social studies. Parents believe that at McAuliffe, their daughter is making effective progress, and is continuing to derive social and academic benefits from her educational program.

C. DISCUSSION

1. FAPE Standard

It is not disputed that Student is an individual with a disability, falling within the purview of the IDEA2 and the Massachusetts special education statute.3

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.”4 Student’s right to FAPE is assured through the development and implementation of an individualized education program or IEP,5 which must be custom-tailored to address Student’s “unique” educational needs.6 FAPE includes a least restrictive environment standard, which is discussed separately below in part C 3.

As a general rule, FAPE mandates proposed special education and related services that are “reasonably calculated to enable [Student] to receive educational benefits.”7 More specifically, the Supreme Court has referenced a FAPE standard that a student has the right to “meaningful access” to his or her education.8 In addition, Massachusetts regulatory standards require that Student’s IEP Team “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.”9

In the instant dispute, Parents have the burden of persuasion on all issues.10

2. Natick’s Defense that Parents Accepted IEPs for 5 th Grade

The general and well-settled rule is that acceptance of an IEP precludes a Hearing Officer from considering its appropriateness.11 Thus, Parents cannot, on the one hand, accept the IEPs, thereby indicating that they agree with the 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 goals and objectives and the types and amounts of services reflected within the IEP were not reasonably calculated to provide Student with FAPE in the least restrictive environment.12

There are exceptions to this rule. For example, Massachusetts special education regulations utilize the term “consent” for purposes of a parent’s acceptance of an IEP.13 And, the First Circuit has referenced the regulatory definition of “consent” as applying to a parent’s acceptance of an IEP.14 State and federal regulations under the IDEA define a parent’s “consent”.15 In order to be effective, a parent’s acceptance of an IEP therefore must meet the standards contained within these definitions of consent.

Parents have made no claim that their consent was ineffective, nor am I aware of anything within the instant dispute that would support making an exception to the general rule. At all times from October 2007 through the hearing in this dispute in February 2011, Parents were represented by counsel. Their attorney attended all IEP Team meetings during this time period, except for the September 2008 IEP Team meeting when the attorney was unable to attend but was able to review with Parents the IEP proposed by Natick as a result of this meeting. Testimony of Father.

I therefore will consider to what extent Parents accepted the IEP services and placement that they now claim to be inappropriate.

As described more fully above in part B 3 above, Parents accepted in part and rejected in part each of the first three of four IEPs covering the 2008-2009 school year. Parents rejected in full the fourth IEP. Parents also did not accept the placement in the first IEP and refused the placement for each of the remaining three IEPs.

With respect to the first three of the four IEPs for the 2008-2009 school year (5 th grade), the parts that Parents rejected do not pertain to any of the issues in dispute—in other words, Parents accepted all of the portions of the first three IEPs that they now dispute. For example, the proposed services within these IEPs that provided for Student to be taught 5 th grade social studies and science by a special educator in a substantially separate classroom were accepted by Parents; the lack of any special education or related services for Student’s health, technology and media literacy class was accepted by Parents; and Parents accepted the goals and objectives within these IEPs except that they requested that a specific benchmark be added to Goal # 1 in the IEP developed at the May 20, 2008 Team meeting, and this benchmark was added into the next IEP which covered the period from 9/04/08 to 9/04/09 and was included in the subsequent IEP which was for the period 11/17/08 to 11/17/09.

I note, in particular, the Parents’ rejection of the placement, and the relevance of this rejection to the issues in dispute. The placement page for each IEP indicated placement within a substantially-separate classroom, which for purposes of these IEPs was the ACCESS program.

An important difference between the ACCESS programs for 4 th and 5 th grades is that 4 th grade ACCESS students generally receive inclusion social studies and science, while 5 th grade ACCESS students generally attend a substantially separate classroom for social studies and science. However, placement into the 5 th grade ACCESS program does not preclude Student from attending regular education classes. The undisputed testimony was that a 5 th grade ACCESS student can be placed, whenever appropriate, within any inclusion class, including social studies and science. Testimony of Scampini, Costello.

When an ACCESS student is placed in a regular education classroom with special education supports, this is reflected in the “B” section of the service delivery grid (special education and related services in general education classroom) where any special education services are listed for inclusion classes; and when an ACCESS student is placed in substantially separate classroom taught by special education staff, this is reflected within the “C” section of the service delivery grid (special education and related services in other settings) where the special education services are listed for each substantially separate class. For each of the first three IEPs for 5 th grade, Parents fully accepted the services portions of the IEPs that reflected Student’s placement within a substantially separate classroom for social studies and science and that indicated that she would receive no special education or related services for the health, technology, and media literacy class. Parents do not argue to the contrary. See Parents’ closing argument.

The three partially-accepted IEPs cover the period from the beginning of 5 th grade through June 15, 2008. The fourth IEP was fully rejected on June 20, 2009. As a result, Parents cannot now dispute the appropriateness of the accepted portions of the IEPs for the 2008-2009 school year through June 20, 2009. Because the appropriateness of the summer services have not been disputed by Parents, the only period of time for which their substantive claims may be considered is from their June 20, 2009 rejection through the end of the school year, which presumably is a period of one or two weeks, or less.

Parents have the right to dispute the appropriateness of those portions of the IEP that were rejected, but as discussed above, none of the rejected portions of the three IEPs pertain to Parents’ claims that the IEPs were not appropriate. Parents also have the right to complain that accepted portions of the IEPs were not properly implemented,16 but they have not included this claim within their hearing request.

Accordingly, Parents’ substantive claims regarding the appropriateness of the IEPs for 5 th grade (the 2008-2009 school year) will be considered only with respect to the time period from June 20, 2009 until the end of the school year.

I will next consider Parents’ substantive educational claims, below, and then will address Parents’ procedural claims. However, with respect to the substantive educational claims, even were I to find in favor of Parents, I would decline to award compensation or reimbursement. By June 20, 2009 when the IEP was rejected, it would, as a practical matter, have likely been too late to include Student into regular education social studies and science, to add supportive services to the health, technology and media literacy class, to change the services being provided through the Wildcat Café, or to conduct additional assessments for purposes of affecting 5 th grade. And, any change in services or changes to goals and objectives would likely have been inconsequential.

3. Least Restrictive Environment Claim

Parents’ least restrictive environment claim is the central substantive issue in dispute and the focus of much of the testimony at hearing. This issue pertains to whether Natick’s proposed IEPs for the 2008-2009 school year appropriately placed Student within a substantially-separate classroom for her social studies and science classes or, alternatively, whether Natick should have placed her within an inclusion classroom for these subjects, with additional services and supports, and modifications to the curriculum.

Pursuant to state and federal FAPE standards, Natick had an obligation to provide services to Student in the least restrictive environment.17 The phrase “least restrictive environment” or “LRE” means that, to the maximum extent appropriate, a student must be educated with other students who do not have a disability, and that “removal . . . from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services, cannot be achieved satisfactorily.”18 Similarly under state statute, BSEA Hearing Officers are directed to order an educational placement and services that assure FAPE, with “a presumption . . . to direct such placement to the regular educational environment.”19

Numerous courts have recognized that with this statutory provision, Congress created a strong preference in favor of mainstreaming or, in more current usage, a strong preference for “inclusion” (“inclusion” refers to the student being included within regular education classes or activities, often with modifications, supplemental services or supports).20 “Mainstreaming may not be ignored, even to fulfill substantive educational criteria.”21 At the same time, the First Circuit has cautioned that the guarantee of least restrictive placement may not be used to cure an otherwise inappropriate placement,22 and the Supreme Court has similarly stated on several occasions that LRE principles may not result in a placement that does not meet the educational needs of the particular student.23

The apparent tension between the strong preference for inclusion and the requirement that schools provide individualized programs tailored to the specific needs of each disabled student is best resolved through the LRE statutory language itself—that is, the LRE language requires “the school’s proper use of ‘supplementary aids and services,’ which may enable the school to educate a child with disabilities for a majority of the time within a regular classroom, while at the same time addressing that child’s unique educational needs.”24 Removing a child from the mainstream setting becomes permissible when “any marginal benefits received from mainstreaming are far outweighed by the benefits gained from services which could not feasibly be provided in the non-segregated setting ….”25

With these LRE standards in mind, together with the FAPE standards discussed earlier in this Decision in part C 1, I consider whether it would have been appropriate (and possible), through supplementary aids and services as well as curriculum modifications and other supports, to address appropriately Student’s unique educational needs within inclusion social studies and science classes during the 2008-2009 school year.

Relevant to the question of whether Natick should have proposed an inclusion classroom for social studies and science are Student’s educational strengths and deficits. Student’s educational strengths, as articulated by Dr. Imber, include the following: (1) she is a social person, with maturity regarding a number of social skills, (2) she is motivated to do well in school, (3) she is conscientious regarding her school work, (4) she has no behavioral difficulties and is described as a “model student” in this regard, and (5) she has two parents who strongly support her academically. In addition, she has a relative strength in spelling and decoding. Testimony of Imber; exhibit P-15.

Student’s educational limitations are principally with respect to cognitive deficits and rate of auditory processing. It is not disputed that Student has substantial cognitive deficits, with testing generally within the low 70s (or below) on the sections of the Wechsler Intelligence Scale for Children-IV that pertain to her comprehension, reasoning and memory. More specifically, her most recent scores from March 2008 include a score of 73 in verbal comprehension, a 75 in perceptual reasoning, and a 68 in working memory.26 Testimony of Imber, Scampini, Bird, Nichols; exhibits P-15, S-16.

Student’s cognitive deficits substantially limit her ability to understand what she hears and reads. In both listening and reading comprehension, her most recent educational evaluation (conducted in April 2009 during her 5 th grade by Parents’ educational expert) and the testimony of those who have evaluated or worked with Student indicated that she was functioning at the 1 st grade level or lower while in 5 th grade. Within the 5 th grade ACCESS program, which is designed for students with cognitive deficits, Student’s reading comprehension was among the lowest in the class. These limitations substantially curtail her ability to understand instruction and participate in academic discussions at grade level. Testimony of Imber, Scampini, Bird, Nichols; exhibit P-15.

Student’s cognitive deficits also substantially limit her ability to analyze or explain an issue—for example, she may be able to make a statement regarding a topic and the statement may sound coherent and appropriate, but if asked, she may not be able to explain her reasoning. The cognitive limitations also negatively impact her ability to understand what she reads. These deficits impose further obstacles on Student’s inclusion in academic courses taught at grade level. Testimony of Imber, Scampini, Bird, Nichols; exhibit P-15.

In addition, Student has substantial auditory processing deficits that place limitations on her listening comprehension and further compound her cognitive deficits that impact this area of comprehension. Dr. Imber testified and wrote in his report that on the basis of testing in March 2008 on the TAPS-3, Student performed “substantially below” her peers, receiving a standardized score of 77 and falling within the lowest 4 th percentile compared to her age-normed peers. This deficit substantially implicates Student’s ability to process (and thereby understand) language if it is spoken at a typical instructional pace in a regular education classroom. Testimony of Imber, Costello; exhibit P-15.

At the time that Natick developed its IEPs for Student’s 5 th grade, the IEP Team relied upon an educational evaluation conducted by Susan Grant, MEd on April 17, 2008. Ms. Grant, who was an educational consultant independent of Natick, had been selected by Parents to evaluate Student and make educational recommendations. Parents and Natick split the cost of the evaluation. Student’s learning deficits were summarized by Ms. Grant, who concluded in her evaluation report of April 17, 2008 that Student’s “severe learning disabilities, most pronounced in the language area, are consistent with her borderline range on cognitive tests.” Exhibit S-16 (p. 10).

In Ms. Grant’s written evaluation report, she made it clear that she understood that Student had been included within regular education social studies and science for 4 th grade but recommended that this be changed for 5 th grade so that Student would attend a substantially-separate 5 th grade classroom for social studies and science. Exhibit S-16, pages 3, 10. Parents provided no opposing expert view to Natick until Dr. Imber participated in the June 11, 2009 IEP Team meeting, near the end of the 5 th grade school year, as discussed in part B 3, above.

Parents retained educational, speech-language, and assistive technology experts who testified and took positions different than that of Ms. Grant. These experts opined that Student can and should be appropriately placed within an inclusion classroom for social studies and science if appropriate supports, services, and modifications or accommodations are provided. This would include an aide who would either be dedicated to working with Student or who could possibly work with Student and one or two other children at the same time. The aide would support and prompt Student within the classroom. Student would be provided with the following additional support: pre-teaching of material and vocabulary, review of materials, breaking down the material into relatively small chunks, visual supports, modified pace of instruction, a substantially modified curriculum, and decreased expectations regarding content. There would also be a number of assistive technology supports, including a conversion of text to speech, and Student would be using a different text book—that is, a book that would focus on the same concepts as the texts used by her typical peers but the concepts would be simplified and the text would be written at her comprehension level. Testimony of Imber, Flax, Janowski.

I will review the evidence for purposes of determining whether Student, with the benefit of all of these recommended support, services, accommodations and modifications, would likely have been appropriately educated within an inclusion classroom for science and social studies for 5 th grade.

It is not disputed that Student was successfully included within social studies and science for 4 th grade. Parents argue that this, by itself, presents a strong argument for continuing this model into 5 th grade. However, the unrebutted testimony was that the manner of teaching and the expectations for students were substantially different between 4 th and 5 th grade for these subjects. Fourth grade social studies and science is an “exposure model”, with an emphasis on experiential, hands-on learning, with no expectations regarding amount of material digested by a student and with no homework. There were no formal assessments in 4 th grade regarding social studies and science, thereby making it not possible to know what Student learned. Testimony of Digiacomo, Gilbert.

In contrast, in 5 th grade (which marks the beginning of middle school in Natick), the content and instruction in social studies and science classes are more complex, more conceptual and more rigorous than in elementary school. Specifically, 5 th grade social studies and science require higher thinking skills, including synthesizing and manipulating information, making inferences, and drawing conclusions. The students in the class are expected to utilize primary resource material, and to read and retain information from the textbooks, which are written at a 5 th grade level. Testimony of Digiacomo, Nolin, Gilbert. I find that Student’s participation in an inclusion class for 4 th grade social studies and science has little relevance to her being able to participate meaningfully in an inclusion classroom for 5 th grade social studies and science.

Parents also point to Student’s inclusion in 5 th grade health and technology literacy in support of their claim that Student could have participated effectively in inclusion social studies and science. However, the unrebutted evidence was that 5 th grade health and technology literacy class is not at the same level of intellectual rigor as social studies and science. Technology, in particular, utilizes rote instruction for purposes of developing skills. The level of instruction, expectations for students and general difficulty of the material are far different than that found within 5 th grade social studies and science. Testimony of Norton, Reulbach, Nolin, Gilbert.

The testimony of the Natick teachers and educators was persuasive that, even with the substantial amount of pre-teaching and other support, including the assistance of an aide, recommended by Parents’ witnesses, inclusion could not have been successful. Student’s cognitive deficits, her substantial weakness in oral comprehension, and her auditory processing deficits would likely severely compromise her ability to process, understand and participate meaningfully in what was said by the teacher and the other students in the inclusion classroom for social studies and science. In support of her opinion that Student could not have been successful within an inclusion social studies or science class for 5 th grade, Ms. Costello (who was Student’s 5 th grade special education teacher and who taught her social studies and science) testified that in order for Student to access the curriculum even in the substantially-separate social studies and science classroom during her 5 th grade, (1) the pace of instruction was slowed, (2) pre-teaching, repetition, and review were used, (3) the curriculum was modified, and (4) the entry point of instruction was adjusted to Student’s particular level. Instruction was provided within a small classroom. Ms. Costello testified that even with these supports, services and modifications, Student’s academic progress was modest. Testimony of Costello, Scampini.

In addition, the Natick witnesses were persuasive that had Student been placed within an inclusion social studies and science class, Student would not have been meaningfully included within the classroom learning process experienced by the regular education students. Had Natick modified the curriculum to such an extent that Student could have accessed it, then likely it would have been modified so that, in effect, she would have been learning her own individual replacement curriculum rather than a modified version of the 5 th grade curriculum being taught within the inclusion classroom. Moreover, even with an essentially different curriculum, the pace of instruction in the classroom (which could not be modified) would likely make the instruction substantially inaccessible to Student. All of this would likely result in effectively separating Student educationally from her peers in the classroom, rather than providing her with a meaningful inclusion experience. Testimony of Scampini, Nichols, Costello.

Parents counter with Dr. Imber’s opinion that, potentially, Student may have made greater academic progress in an inclusion classroom than in a substantially-separate classroom for these subjects. However, Dr. Imber conceded that it could not be predicted with any degree of certainty what academic benefit Student would have received from being in an inclusion social studies and science class for 5 th grade. Dr. Imber testified that one would only know by trying it out and collecting data for a period of time—he recommended two quarters—to determine what Student was learning. Similarly, Parents’ assistive technology consultant (Ms. Janowski) testified that she could not predict whether additional assistive technology for Student would likely allow her to participate effectively in the mainstream, but she opined that Student should be given this opportunity because she may be successful. Testimony of Imber, Flax, Janowski.

I also note that Dr. Imber supported his recommendations for inclusion, in part, on the basis of his experience with Student during 6 th and 7 th grades at McAuliffe where she has been included with typical peers for social studies and science. However, the McAuliffe classes (approximately 12 or 13 students) are substantially smaller than regular education classes in the Natick 5 th grade (approximately 22 students), and Dr. Imber conceded that the size of the class is an important consideration for purposes of Student’s accessing the curriculum. Also, McAuliffe classes are more project-based than the inclusion classrooms at Natick for 5 th grade, again allowing for easier access by Student. Testimony of Imber, Nolin.

Parents also rely upon Dr. Imber’s expert opinion that even if there were no demonstrable academic benefit, the inclusion classroom would be “worth doing” because of the likely social benefits from learning with typical peers in social studies and science. No doubt, Student has gained and will continue to gain important benefits from learning with typical peers. As noted above, Student is a social person with many mature social skills, and she can learn much, including social skills, from her peers.

Nevertheless, as discussed above, there was persuasive evidence that had Student been placed into 5 th grade social studies and science, she would not likely have been able to access the curriculum in a meaningful manner, and, importantly, would not have been able to participate within the classroom in a meaningful manner. Inability to participate meaningfully in conversations with her peers regarding the subject matter being taught, together with her reliance on an aide in the classroom, may well have isolated Student socially from her typical peers, and it is possible that the experience would damage her self esteem. Testimony of Imber, Nichols, Scampini.

Ms. Janowski testified that the assistive technology recommended in her report would have helped Student to be able to participate in an inclusion class for social studies and science. However, the Natick witnesses were persuasive that many of her recommendations had already been implemented within the 5 th grade classroom and the accommodations would not allow Student meaningful access to a regular education 5 th grade science and social studies curriculum because the accommodations cannot make up for her cognitive and processing deficits that preclude her from understanding what is being taught and participating effectively in this learning environment. Testimony of Janowski, Costello.

Ms. Flax’s testimony also supported Student’s inclusion in social studies and science. Ms. Flax has the advantage of knowing Student through providing her with speech-language services since 4 th grade. Ms. Flax also has worked both with families and school districts, has provided services in the classroom from kindergarten through 6 th grade, has developed educational programs, and has experience with the successful inclusion of one or more children who have an educational profile similar to that of Student.

Ms. Flax testified that with appropriate accommodations and supports (including a tutor), Student could have participated successfully in a 5 th grade inclusion class for social studies and science. Ms. Flax took the position that Student would likely have learned as much in the social studies and science inclusion classes as she learned within the substantially separate classrooms if inclusion had been done appropriately. I found her to be a candid, credible witness with appropriate expertise and experience to provide probative testimony regarding this issue.

In reviewing the evidence, I find that both parties provided credible expert testimony in support of their positions. Their differences stem, in part, from inconsistent points of view. One perspective appears to be that if inclusion may be possible for someone with Student’s educational profile, it should at least be attempted even if the results are uncertain, as compared to another perspective that inclusion should not be attempted if there is a substantial likelihood that it would not allow Student a meaningful opportunity to access the curriculum and make academic progress, and if Student may be socially harmed in the process. There may also be philosophical differences regarding the relative importance of an inclusion experience, particularly from a social perspective. One perspective is that even when a student can understand only limited amounts of what is taught and is not able to participate meaningfully in the classroom discussions, there are important social benefits to be gained, while the other perspective emphasizes the strong possibility of social isolation and damage to self-esteem, particularly where Student is dependent upon an aide.

It is essential to note that this dispute does not involve prospective educational services for Student where there might be an opportunity to try certain inclusion supports and models, monitor and collect data as suggested by Dr. Imber, and then make informed decisions regarding what should be continued, changed or abandoned. Rather, the dispute involves looking back at the appropriateness of IEPs that were proposed approximately two years ago to determine whether Natick’s decisions for 5 th grade were appropriate.

When reviewing Natick’s proposed IEPs for the 2008-2009 school year, I am mindful that the appropriateness of each IEP must not be “ judged exclusively in hindsight. An IEP is a snapshot, not a retrospective.”27 Thus, the “IEP must take into account what was, and was not, objectively reasonable when the snapshot was taken, that is, at the time the IEP was promulgated.”28 This standard does not preclude the admission and consideration of evidence acquired after the creation of the IEP, but this evidence may only be used to evaluate the reasonableness of Natick’s decisions at the time they were made.29

The opinions and recommendations of Parents’ three experts were offered to Natick essentially after the fact—that is, Natick did not have the benefit of their opinions and recommendations at a time when Student’s IEPs for 5 th grade were being proposed, thus limiting their probative value. For example, Ms. Janowski’s evaluation occurred well after Student’s 5 th grade year and could not have been considered by the Natick IEP Team; Dr. Imber shared his opinions with the IEP Team near the end of 5 th grade on June 11, 2009 when the Team was focused on preparing an IEP for the summer and 6 th grade and it was too late to make any meaningful changes for 5 th grade; Dr. Imber’s opinions regarding inclusion of Student are based, in part, upon Student’s apparent success at McAuliffe for 6 th and 7 th grades; and Ms. Flax apparently shared her views with Natick for the first time at the hearing in the instant dispute. Testimony of Imber, Flax, Janowski.

I find that on the basis of the information that was available (or reasonably should have been available) to Natick when it proposed the 5 th grade IEPs, the Natick members of the IEP Team were justified in placing Student in a substantially separate classroom for social studies and science. Natick reasonably relied upon the information and knowledge available to the Team at that time, which included the experience of its teachers who had taught Student in 4 th grade, the experience and reports from teachers and staff with Student during 5 th grade (where Student was making only modest progress in special education social studies and science with accommodations beyond what would be possible within a regular education classroom), the level of difficulty and rigor of the social studies and science inclusion classes for 5 th grade, Student’s cognitive and auditory processing deficits which may be appropriately characterized as “severe”, and Ms. Grant’s independent evaluation recommending a substantially separate classroom for all academic classes, including social studies and science. All of this information and knowledge reasonably supported Natick’s determination that Student would not likely have been able to understand and participate effectively in the classroom instruction and discussions, would not likely have been able to meaningfully access the curriculum, may have been socially isolated as a result, and would not likely have been able to make effective progress in the 5 th grade inclusion classes for social studies and science even with all of the supports, services, accommodations and modifications recommended by Parents and their experts.

For these reasons, I find that Natick prevailed on the issue of whether, in order for Student to receive FAPE in the least restrictive environment, she should have been placed within a substantially separate classroom for social studies and science for 5 th grade.

4. Health, Technology and Media Literacy

For 5 th grade, all special education students are included within a regular education health, technology and media literacy class. Supports, accommodations and modifications are provided for special education students as needed in order for them to participate meaningfully in the curriculum. For this purpose, the regular education teachers consult as needed with the special education teachers who are working with the students who have IEPs. Testimony of Norton, Reulbach, Nolin, Gilbert.

Parents take the position that Natick should have provided Student with additional special education services or supports in this classroom.

However, Parents put forth no credible evidence that their daughter was not able to gain meaningful access to the curriculum or make effective progress in these classes.

Accordingly, Parents failed to satisfy their burden of persuasion on this issue.

5. Wildcat Cafe

Natick’s Wildcat Café provided an opportunity for Student to develop social skills within a small group of special needs students. Testimony of Bird

Parents claim that this program was deficient because it did not include regular education students and that it should not have been reduced on her IEP to once per cycle.

Parents are correct that the service was listed as occurring once per cycle on Student’s IEP. However, Student participated twice each week in the Wildcat Café. Testimony of Bird, exhibit P-2, S-7.

Parents rely on Dr. Imber’s testimony. He commended the Wildcat Café as a good program for Student, but he also recommended that regular education students participate in the program at some point in time during the school year. Testimony of Imber.

However, the undisputed evidence was that Student made social progress within the Wildcat Café, which was the purpose of this educational service. For example, at the beginning of the school year in the Wildcat Cafe, Student was very quiet and needed prompting even to give a one-word answer, but by the end of the school year, she would talk about an activity—for example, where she went and what she did. Testimony of Costello, Bird, Scampini.

Dr. Imber’s recommendation that regular education students be included may well have improved the Wildcat Café, but the evidence was persuasive that the Wildcat Café, even without the inclusion of regular education students, was appropriate for Student and provided her with meaningful benefit, consistent with its responsibilities to provide Student with FAPE. Natick had no legal obligation to improve these services.

For these reasons, I find no merit in Parents’ claim regarding the Wildcat Café.

6. Assistive Technology Evaluation

During the June 18, 2009 Team meeting, Father raised the question of whether an assistive technology evaluation should be done. When Natick declined to do this evaluation, Parents privately hired Karen Janowski, an assistive technology consultant, to evaluate their daughter. Ms. Janowski assessed Student on July 31 and August 7, 2009 and issued a report dated September 3, 2009. Testimony of Father, Janowski; exhibit P-41.

Ms. Janowski’s evaluation is comprehensive and provides many observations and recommendations as to how assistive technology may enhance Student’s education, including to assist her to participate in inclusion classes for social studies and science.

Parents’ inquiry regarding an assistive technology evaluation came very close to the end of Student’s 5 th grade year and only a few months before Student was enrolled at McAuliffe, thereby ending Natick’s responsibility to provide educational services to Student. Arguably, Natick should have done an assistive technology evaluation of its own, but there was no evidentiary basis for me to determine when that could or should have occurred and what , if anything, would have been gained by such an evaluation, in light of the Natick’s uncontested position that many of Ms. Janowski’s recommendations were being implemented in 5 th grade. Testimony of Costello.

I conclude that Parents have not sustained their burden of establishing any educational harm as a result of any responsibility that Natick may have had to conduct its own assistive technology evaluation. I therefore find for Natick on this issue.

7. Measurable Goals and Objectives

Parents claim that the IEPs for 5 th grade included goals and objectives that were not sufficiently measurable. Natick provided testimony in support of its position that the IEP goals and objectives were measurable. Testimony of Costello. Parents put forth no credible evidence on this issue and therefore failed to satisfy their burden of persuasion on this issue.

8. Parent Participation.

Parents claim that “Natick violated the procedural requirements of the IDEA by repeatedly failing to treat the Parents as partners on the IEP team, significantly impeding the parents’ opportunity to participate in the decision-making process.” This aspect of the dispute was an important, and continuing, complaint by Parents against Natick. See Parents’ closing argument, page 10.

The IDEA seeks to insure the “full participation” of Parents in the resolution of substantive disagreements relative to their child’s special education and related services.30 The Supreme Court has further explained:

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 (“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.31

Through the IEP Team process, Parents must have the opportunity for meaningful participation in the formulation of Student’s IEPs.32 This participation of parents ensures that those persons who know Student best are allowed to contribute in a meaningful way to the development of her services and placement.33

Parents’ concerns, as described within their closing argument, include the following: (1) Parents’ feeling “confused and concerned” about Student’s proposed program during the September 4, 2008 Team meeting, (2) Natick’s alleged failure to consider Student’s inclusion within social studies and science for 5 th grade, (3) Natick’s decision not to allow Parents’ expert to observe the ACCESS program at the Kennedy Middle School, and (4) other areas of disagreement.

I do not find Parents’ arguments to be persuasive. My review of the evidence, including listening to CD recordings of three Team meetings (exhibits P-3 A, P-4 A1, P-4 A2), leaves no doubt that Parents fully and meaningfully participated in many communications and discussions, including IEP Team meetings, with respect to their many concerns and questions about their daughter’s education. No doubt some of the discussions and meetings became difficult as the positions of the parties hardened and their differences could not be bridged.

When Parents strongly and persistently pressed their views, Natick Team members were under no obligation to agree with Parents simply because Parents were also members of the IEP Team. Natick’s responsibility was to meaningfully discuss and consider Parents’ views as equal participants on the IEP Team and to ensure that Parents were given the opportunity to contribute meaningfully to the IEP development process. Natick was not required to negotiate with Parents to achieve a resolution that was acceptable to them in part or in whole if by doing so, Natick believed that the result would not provide an appropriate education to Student. Ultimately, as Natick correctly pointed out in its closing argument, it had an affirmative responsibility to propose what it believed would likely provide Student with FAPE in the least restrictive environment.

I also note that because Natick never proposed the ACCESS program at the Kennedy Middle School (Natick proposed the ACCESS program at the Wilson Middle School), Natick had no obligation to allow Parents’ expert to observe this program. It is not disputed that Natick allowed Parents’ expert to observe the ACCESS program at the Wilson Middle School. See Parents’ closing argument, page 11.

For these reasons, I find no merit in Parents’ claim regarding their meaningful participation in the development of Natick’s services and placement for Student.

9. Predetermination Claim

An additional but related claim by Parents is that Natick predetermined Student’s placement at the ACCESS program at the Wilson Middle School for the 2008-2009 school year.

“[P]redetermination occurs when an educational agency has made its determination prior to the IEP meeting, including when it presents one placement option at the meeting and is unwilling to consider other alternatives. In such case, regardless of the discussions that may occur at the meeting, the School District’s actions would violate the IDEA’s procedural requirement that parents have the opportunity to participate in meetings with respect to the identification, evaluation, and educational placement of the child.”34

It is not disputed that an IEP Team meeting occurred on May 20, 2008, during which Natick members of the Team proposed that Student be placed in the ACCESS program and that all of Student’s core academic courses (including social studies and science) be taught within this program. Exhibits P-1, S-9. Subsequent to this meeting, Parents learned that there was another self-contained program within the Wilson Middle School, and they take the position that Natick predetermined Student’s placement in the ACCESS program by not at least considering the alternative placement at Wilson.

The other program at Wilson was the LEAPP program. There was no probative evidence that this program would have been appropriate for Student. To the contrary, the evidence was that LEAPP was designed to educate children with learning disabilities who have average to high-average cognitive abilities, and would not be appropriate for Student, given her cognitive limitations. Testimony of Gilbert.

An IEP Team must consider a program identified by Parents, but the Team is under no obligation to raise on its own initiative, and then consider, a program that the Team does not believe is appropriate for the student.35

Parents further take the position, correctly, that IEP services must be determined by the Team prior to the Team’s determination of placement.36 However, this does not preclude the Team from determining the IEP services and placement within the same meeting. There is no evidentiary basis for a finding that the Team determined Student’s placement prior to its determination of appropriate services.

For these reasons, Parents have not sustained their burden of persuasion regarding their claim of predetermination.

10. Regular Education Teacher at IEP Team Meeting

Parents claim that with respect to all IEP Team meetings subsequent to the September 4, 2008 meeting, Natick failed to include on the Team a regular education teacher, and Parents did not at any time waive this requirement.

The IDEA requires that a “regular education teacher of the child, as a member of the IEP Team, shall, to the extent appropriate, participate in the development of the IEP of the child, including the determination of appropriate positive behavioral interventions and supports.”37

“[T]he requirement that at least one regular education teacher be included on an IEP team, if the student may be participating in a regular classroom, is mandatory-not discretionary.”38

Natick concedes that a regular education teacher did not participate in the IEP Team meetings on November 17, 2008, June 11, 2009 and June 18, 2009. See Natick’s closing argument, page 9.

For these reasons, I find that Natick violated Parents’ right to have a regular education teacher participate in these IEP Team meetings.

11. Observation of ACCESS Claim

Parents claim that Natick violated their procedural rights by failing to arrange for Parents to observe the ACCESS program. Parents had the right to observe any program proposed for their son or daughter. See 603 CMR 28.07(1)(a)3, which provides that “Parents have the right to observe any program(s) proposed for their child if the child is identified as eligible for special education services.”39

It is not disputed that Natick offered Parents the opportunity to observe the ACCESS program in March 2008, but Parents declined, taking the position that it would be a “waste of time” to observe the program until an on-going evaluation by the independent evaluator (Susan Grant) had been completed. Exhibit S-26. In May 2008, Parents observed the facility but, in Parents’ words, did not “see the proposed placement in action.” Exhibit P-1 (letter from Father, dated August 5, 2008)

On May 20, 2008, an IEP Team meeting occurred, the result of which was an IEP proposing Student’s placement at the ACCESS program for the subsequent school year for 5 th grade. Parents accepted this placement. Exhibit P-1, S-9.

On May 29, 2008, Parents sent an e-mail to Natick referencing “two programs” (presumably the 5 th grade ACCESS program and the LEAPP program) and asking to see these programs. Natick did not arrange for Parents to observe the ACCESS program. The evidentiary record is unclear why Natick did not make arrangements for an observation. There is no record of Parents following up their May 29 th e-mail request with any further inquiry or request.

The next Team meeting occurred on September 4, 2008. At this meeting the ACCESS program was again discussed. Father attended an open house at the ACCESS program in November 2008, and this gave Father an opportunity to see the placement, but it seems self-evident that attending an open house several months after the beginning of the school year is substantively different than a parent’s right to observe a program pursuant to 603 CMR 28.07(1)(a)3, quoted above.

For these reasons, I find that Natick violated Parents’ right to observe the ACCESS program.

12. Relief Due as a Result of Natick’s Procedural Violations

As explained above, I have found that Natick violated Parents’ right to have a regular education teacher participate in the three IEP Team meetings and that Natick violated Parents’ right to observe the ACCESS program. I now consider what relief, if any, is due Parents.

The IDEA has established that a Hearing Officer may order relief as a result of a procedural violation only if the Hearing Officer finds that, as a result of the violations, there was a denial of FAPE; and a denial of FAPE may occur as a result of a procedural violation only according to the following standards:

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.”40

I first consider the failure to include a regular educator in three IEP Team meetings. In general, “[t]he statutory requirement that an IEP team for a disabled child who is or may be in regular education must include a regular education teacher is not merely technical. A regular education teacher may have insights or perspectives that aid in the process of IEP formation.”41

Within the context of the instant dispute, the failure to include a regular education teacher was important. This is because much of Parents’ substantive educational concerns focus around Student’s participation in regular education classes. I find that Natick’s failure to include a regular educator in three Team meetings “significantly impeded the parents’ opportunity to participate in the decisionmaking process regarding the provision of a free appropriate public education” for Student and therefore denied Student FAPE pursuant to the above-quoted statutory standard.

With respect to Natick’s failure to provide Parents with an observation of the ACCESS program, I find this, too, to be an important omission. Because they were not provided with this opportunity, Parents’ ability to participate meaningfully within the IEP Team discussions of the ACCESS program was limited. I find that this failure also “significantly impeded the parents’ opportunity to participate in the decisionmaking process regarding the provision of a free appropriate public education” for Student, resulting in a denial of FAPE.

Parents seek compensatory educational services as a result of these violations.

“Compensatory education is a surrogate for the warranted education that a disabled child may have missed during periods when his IEP was so inappropriate that he was effectively denied a FAPE.”42 However, in the instant dispute, the IEPs were not inappropriate, and the violations pertain only to Parents’ full participation within the decision-making process. I have found little judicial guidance as to what relief is appropriate in this context.

“[C]ompensatory education is not an automatic entitlement but, rather, a discretionary remedy for nonfeasance or misfeasance in connection with a school system’s obligations under the IDEA.”43 A hearing officer’s discretion is to be exercised in determining what relief is appropriate only after consideration of all aspects of the case.44

When considering all aspects of this case, I note the following. Notwithstanding Parents’ claims to the contrary, I believe that, on the whole, Natick provided a notable amount of process and consideration of Parents’ concerns and criticisms. Time and again, Natick met with Parents to discuss their views and, in my opinion, carefully considered whether to adjust the IEPs to reflect Parents’ concerns. I note, as one example, the involvement of Anna Nolin who, as the Principal of Wilson Middle School, attended Team meetings and sought to assist Parents to understand the ACCESS program and its appropriateness for Student. I found Ms. Nolin to be a particularly articulate witness with a wide breadth of educational knowledge. I also do not doubt that Natick made its final decisions regarding proposed services for Student on the basis of what it believed was best for her.

I further find that if Parents had been allowed to view the ACCESS program and if there had been a regular education teacher participating in the various IEP Team meetings, the substance of the discussions may have changed, but the result of the meetings would likely have been the same.

I also consider that, in the final analysis, I have determined that Natick proposed appropriate services for Student and that I have reached this conclusion after considering the extensive testimony and reports from Parents’ experts. Thus, there was no educational harm to Student for which she could be compensated And, as a practical matter, nothing can be done now to make Parents whole for Natick’s procedural missteps.

I also note, but do not rely upon, the practical difficulty of crafting a meaningful award where Natick no longer has educational responsibility for Student.45 I do not believe it appropriate to order compensatory relief simply for the purpose of punishing Natick.

For these reasons, I decline to order any compensatory relief for Parents as a result of Natick’s procedural violations.

ORDER

The IEPs proposed by Natick for the 2008-2009 school year (including the summer of 2009) were reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment

Natick did not commit procedural violations during the 2008-2009 school year (including the summer of 2009) with respect to claims that Natick predetermined Student’s placement and failed to allow Parents to fully participate as partners in the IEP Team process.

Natick did commit procedural violations during the 2008-2009 school year (including the summer of 2009) with respect to claims that Natick failed to arrange for Parents to observe the ACCESS Program and failed to include a regular education teacher at IEP Team meetings.

No relief is ordered with respect to these procedural violations.

By the Hearing Officer,

William Crane

Dated: March 24, 2011

COMMONWEALTH OF MASSACHUSETTS

Division of Administrative Law Appeals

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

As a public charter school, McAuliffe is governed by MGL c. 71, § 89 and Massachusetts Department of Elementary and Secondary Education (DESE) regulations. As explained in my 12/28/10 ruling on Natick’s partial motion to dismiss, once Student enrolled at McAuliffe in September 2009, Natick’s responsibility as Student’s local education agency (including its responsibility to educate Student prospectively and provide her with FAPE) ceased, and McAuliffe became Student’s local education agency for all purposes and was programmatically and financially responsible for educating Student, including providing her with any necessary special education and related services.


2

20 USC 1400 et seq .


3

MGL c. 71B.


4

20 USC § 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A); Mr. I. ex rel. L.I. v. Maine School Admin. Dist. No. 55 , 480 F.3d 1, 12 (1 st Cir. 2007) (referencing “broad purpose behind the IDEA: ‘to ensure that all children with disabilities have available to them a free and 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’” citing to 20 USC § 1400(d)(1)(A)).


5

20 USC 1414(d)(1)(A)(i)(I)-(III); Honig v. Doe, 484 U.S. 305, 311-12 (1988) ; Rowley, 458 U.S. at 182.


6

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”); 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 , 484 U.S. at 311 (FAPE must be tailored “to each child’s unique needs”); Rowley, 458 U.S. at 181 (FAPE must be “tailored to the unique needs of the handicapped child by means of an ‘individualized educational program’ (IEP)”); Lessard, , 518 F.3d at 23 (referencing the school district’s “ obligation to devise a custom-tailored IEP”); 603 CMR 28.02 (20) (“ Special education shall mean specially designed instruction to meet the unique needs of the eligible student or related services necessary to access the general curriculum and shall include the programs and services set forth in state and federal special education law.”).


7

Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 207 (1982). See also Lessard v. Wilton Lyndeborough Cooperative School Dist. , 518 F.3d 18, 23 (1 st Cir. 2008) (“IEP must be individually designed to provide educational benefit to [a particular] handicapped child.”) (internal quotations and citations omitted).


8

See Cedar Rapids Community School Dist. v. Garret F. ex rel. Charlene F ., 526 U.S. 66, 79 (1999) (IDEA dispute “is about whether meaningful access to the public schools will be assured”); Irving Independent School District v. Tatro , 468 U.S. 883, 891 (1984) (“Congress sought primarily to make public education available to handicapped children and to make such access meaningful” ) (internal quotations omitted ); Rowley, 458 U.S. at 192 (“in seeking to provide … access to public education, Congress did not impose upon the States any greater substantive educational standard than would be necessary to make such access meaningful”). See also Murphy v. Timberlane Regional School Dist .  22 F.3d 1186, 1196 (1 st Cir. 1994) (referencing IDEA standard of a “federal basic floor of meaningful, beneficial educational opportunity”) ; Town of Burlington v. Dep’t of Educ ., 736 F.2d 773, 789 (1st Cir. 1984) (same), aff’d 471 U.S. 359 (1985) ; Dracut School Committee v. Bureau of Special Educ. Appeals of the Massachusetts Dept. of Elementary and Secondary Educ ., 2010 WL 3504012, at *12 (D.Mass. 2010); (using a meaningful education benefit standard to determine appropriateness of transition services); DB v. Sutton, 07-cv-40191-FDS (D.Mass. 2009) ( “meaningful progress … is the hallmark of educational benefit under the [federal] statute”); 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 ) .


9

603 CMR 28.05 (4) (b). See also 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).


10

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” ).


11

See 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).


12

In a recent decision, Judge Gertner noted the rule “that hearing officers are precluded from revisiting or re-opening accepted IEPs that have expired where parents participated in the development of the IEP” and then explained its rationale as follows: “The purpose of this rule is plain; deciding upon which goals and methods to include in any student’s IEP is not an exact science, and allowing parents to second guess IEP decisions after it has expired would only undermine the process of providing students with the educational services they need.” Doe ex rel. Doe v. Hampden-Wilbraham Regional School Dist ., 715 F.Supp.2d 185, 194-195 (D.Mass. 2010).


13

603 CMR 28.05(3)(b), 28.06(2)(d)(1), 28.08(1)(b) and (c).


14

G.D. v. Westmoreland School District , 930 F.2d 942, 944 (1 st Cir. 1991) (referencing a predecessor regulatory definition of consent (34 C.F.R. § 300.500), which for purposes of the instant dispute, is the same as the current regulatory definition of consent (34 C.F.R. § 300.9).

See also W.B. v. Matula , 67 F.3d. 484 (3 rd Cir. 1995) (court should inquire into the totality of the circumstances surrounding execution of an agreement waiving claims relevant to the IDEA, and should decline to enforce the agreement unless its execution was knowing and voluntary); Shawsheen Valley Regional Vocational Technical School Committee v. Commonwealth of Massachusetts Bureau of Special Education Appeals , 367 F.Supp.2d 44 (D.Mass. 2005) (court considered whether parents had sufficient knowledge or understanding of their rights to consent to IEP).


15

34 CFR §300.9; 603 CMR 28.02(4).


16

See Doe ex rel. Doe v. Hampden-Wilbraham Regional School Dist ., 715 F.Supp.2d 185 (D.Mass. 2010).


17

20 USC 1400(d)(1)(A); 20 USC 1412(a)(1)(A); 20 USC 1412(a)(5)(A); 34 CFR 300.114(a)(2(i); MGL c. 71B, ss. 1, 2, 3; 603 CMR 28.06(2)(c).


18

20 USC 1412(a)(5)(A). See also MGL c. 71B, s. 1.


19

MGL c. 71B, s. 3.


20

See, e.g., Oberti v. Board of Education , 995 F.2d 1204 (3 rd Cir. 1993); DeVries v. Fairfax County School Board , 882 F2d 876, 878 (4 th Cir. 1989 ); Daniel R.R. v. State Board of Education , 874 F.2d 1036, 1044 (5 th Cir. 1989).


21

Rafferty v. Cranston Public School Committee , 315 F.3d 21, 26 (1 st Cir. 2002) quoting Roland v. Concord School Committee , 910 F.2d 983, 992-993 (1 st Cir. 1990).


22

Burlington v. DOE , 736 F.2d 773, 789 n. 19 (1 st Cir. 1984).


23

Burlington v. Mass. Department of Education , 471 US 359, 369 (1985); Rowley, at 181, n.4. See also Roland v. Concord School Committee , 910 F.2d 983, 993 (1 st Cir. 1990) (“desirability of mainstreaming must be weighed in concert with the Act’s mandate for educational improvement”).


24

Oberti v. Bd. of Educ. of Borough of Clementon Sch. Dist., 995 F.2d 1204, 1214 (3 rd Cir.1993) (internal citation omitted).


25

Pachl v. Seagren, 453 F.3d 1064, 1068 (8 th Cir. 2006) (internal quotations omitted).


26

In their closing argument, while Parents correctly point out that Student scored higher in processing speed, achieving a test score of 91, this score does not pertain directly to Student’s cognitive skills with respect to comprehension, reasoning or memory.


27

Roland M. v. Concord Sch. Comm., 910 F.2d 983, 992 (1st Cir. 1990) (internal quotations omitted).


28

Id.


29

Susan N. v. Wilson Sch. Dist ., 70 F.3d 751, 762 (3 rd Cir. 1995). This Court provided a careful analysis of this issue:

In light of the IDEA’s purpose “to assure that all children with disabilities have available to them … a free appropriate public education which emphasizes special education and related services,” 20 U.S.C. § 1400(c), in addition to its directive to “hear additional evidence at the request of a party,” id. § 1415(e)(2), we believe that Judge Garth’s interpretation of the statute [allowing consideration of evidence of a student’s later educational progress when determining appropriateness of IEP] should control the taking of evidence on judicial review that was not before the school district when it made its initial IDEA placement decisions. In so concluding, however, we stress that such after-acquired evidence, such as information received through the experience of an alternative placement, should be used by courts only in assessing the reasonableness of the district’s initial decisions regarding a particular IEP or the provision of special education services at all. Courts must be vigilant to heed Judge Garth’s warning that “[n]either the statute nor reason countenance ‘Monday Morning Quarterbacking’ in evaluating the appropriateness of a child’s placement. … Such [after-acquired] evidence may be considered only with respect to the reasonableness of the district’s decision at the time it was made.


30

Sch. Comm. of Burlington v. Dep’t of Educ. of Mass., 471 U.S. 359, 368 (1985).


31

Schaffer v. Weast , 546 U.S. 49, 53 (2005).


32

See Shapiro v. Paradise Valley Unified Sch. District No. 69, 317 F.3d 1072, 1078 (9th Cir.2003) (“The Act imposes upon the school district the duty to conduct a meaningful meeting with the appropriate parties.”) (quoting W.G. v. Board of Trustees of Target Range Sch. Dist. No. 23, Missoula, Mont., 960 F.2d 1479, 1483 (9th Cir.1992)).


33

See, e.g., Amanda J. v. Clark Cty. Sch. Dist , 267 F.3d 877, 891, 892 (9 th Cir. 2001) (“Not only will parents fight for what is in their child’s best interests, but because they observe their children in a multitude of different situations, they have a unique perspective of their child’s special needs. . . . Procedural violations that interfere with parental participation in the IEP formulation process undermine the very essence of the IDEA. An IEP which addresses the unique needs of the child cannot be developed if those people who are most familiar with the child’s needs are not involved or fully informed.”).


34

H.B. ex rel P.B. v. Las Virgenes Unified School Dist.,  239 Fed.Appx. 342, 344-346, 2007 WL 1989594, 2 (C.A.9 (9 th Cir. 2007).


35

See H.B. ex rel P.B. v. Las Virgenes Unified School Dist.,  239 Fed.Appx. 342, 344-346, 2007 WL 1989594, 2 (C.A.9 (9 th Cir. 2007) (predetermination requires a finding that school district would not have considered a placement if the placement had been raised at the meeting).


36

603 CMR 28.05(6) (“ Determination of placement. At the Team meeting, after the IEP has been fully developed, the Team shall determine the appropriate placement to deliver the services on the student’s IEP.”)


37

20 U.S.C. § 1414(d)(3)(C) . Similarly the IDEA regulations, 34 CFR §300.324(a)(3) regarding the development, review, and revision of IEP provides in relevant part as follows:

Requirement with respect to regular education teacher . A regular education teacher of a child with a disability, as a member of the IEP Team, must, to the extent appropriate, participate in the development of the IEP of the child, including the determination of–
(i) Appropriate positive behavioral interventions and supports and other strategies for the child; and

(ii) Supplementary aids and services, program modifications, and support for school personnel consistent with §300.320(a)(4).


38

M.L. v. Federal Way School Dist., 394 F.3d 634, 643 (9th Cir.2005).


39

In addition, MGL c. 71B, s. 3 was amended by chapter 363 of the acts of 2008 to include additional provisions relevant to a parent’s right to observe his or her child’s educational program , but this amendment went into effective January 8, 2009 and therefore is not relevant to the instant dispute.


40

20 USC § 1415(f)(3)(E)(2)(ii).


41

M.L. v. Federal Way School Dist., 394 F.3d 634, 656 (9th Cir.2005) (concurring opinion).


42

C.G. ex rel. A.S. v. Five Town Community School Dist ., 513 F.3d 279, 290 (1 st Cir. 2008).


43

Id.


44

Id. ; Pihl v. Mass. Dept. of Ed. , 9 F.3d 184, 188 n. 8 (1 st Cir. 1993).


45

McAuliffe now has responsibility for Student’s education, and McAuliffe is not a party to this proceeding. There was no evidence to establish what special education services are being (or should be) provided by McAuliffe, and therefore I have insufficient information to craft any compensatory award to supplement the McAuliffe services. It would not be appropriate to return this matter to a Natick IEP Team for consideration of compensatory services since Natick no longer has responsibility for nor is it involved with Student’s education. These difficulties do not justify, by itself, my not ordering relief for Parents, but, as a practical matter, they limit my ability to do so in a meaningful manner.


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