COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Peabody Public Schools BSEA #05-4488
DECISION
This decision is issued pursuant to 20 USC Sec. 1400 et seq. (Individuals with Disabilities Education Act), 29 USC Sec. 794 (Section 504 of the Rehabilitation Act); MGL c. 71B (the Massachusetts special education statute; “Chapter 766”); MGL c. 30A (the Massachusetts Administrative Procedures Act), and the regulations promulgated under these statutes.
On April 6, 2005, Parents filed a hearing request with the Bureau of Special Education Appeals (BSEA) alleging that both the substantially separate public school classroom placement that the Peabody Public Schools (Peabody) provided for the 2004-2005 school year and the similar program that Peabody proposed for the 2005-2006 school year, did not and do not, respectively, provide Student with the comprehensive language-based programming that the Parents assert he needs to make meaningful educational progress. Rather, Parents claim that the Landmark School is an appropriate placement for Student and seek an order for Peabody to fund a day placement for Student at the Landmark School. Parents also seek compensatory services for alleged failure to provide Student with FAPE during the 2003-2004 school year, as well as reimbursement for summer school, tutoring and speech therapy services that Parents obtained privately.
A hearing was held on June 20, 21, 28; July 11, August 9, August 10, 2005 at the office of the BSEA in Malden, MA.1 Each party was represented by counsel and had an opportunity to examine and cross-examine witnesses and submit documents into the record. Pursuant to the Parents’ unopposed motion to introduce additional evidence based on a change in personnel in Peabody, Peabody submitted additional documents and an affidavit on September , 2005. The parties submitted written closing arguments on October 3, 2005, and the record closed on that day.
Those present for all or part of the proceeding were:
Student’s Mother
Student’s Father
Therese Kovach, Psy.D. Clinical psychologist, Student’s private therapist
Phoebe Adams Educational specialist, Center for Children with Special Needs, Floating Hospital for Children
Hollis Staples Special education teacher, Peabody Public Schools
Diann LaRosa Diagnostic-prescriptive teacher, Peabody Public Schools
Lisa Ginivisian Occupational therapist, Peabody Public Schools
Harriet Budd, Ph.D. Psychologist, Peabody Public Schools
Freyda Craw Speech/language therapist, Peabody Public Schools
Sarah Fuller Special Education Teacher, Peabody Public Schools
Susan Charbonneau Third grade teacher, Peabody Public Schools
Joan Ciampa Assistive Technology specialist, Peabody Public Schools
William Mitchell Team Chairperson, Peabody Public Schools
Jean Shea Special Education Director, Peabody Public Schools
Karl Pulkkinen Public School Liaison, Landmark School
Sherry Ruschioni, Esq. Attorney for Parents
Mary L. Gallant Attorney for Peabody Public Schools
Melissa Gamble, Esq. Attorney for Peabody Public Schools
Jaime Bess Intern with Parents’ Attorney
Sarah Willhite Intern, BSEA
Thomas Houton Certified Court Reporter, Catuogno Court Reporting Services
ISSUES PRESENTED
1. Did Peabody’s IEP and substantially separate classroom placement for the 2004-2005 school year provide Student with a free, appropriate public education (FAPE)?
2. Are Peabody’s IEP and placement for 2005-2006 reasonably calculated to provide Student with FAPE?
3. If not, is the Landmark School an appropriate placement for Student?
4. Are Parents entitled to compensatory services for the 2003-2004 school year based on failure to implement the IEP and/or failure to provide Student with FAPE for that year?
5. Are Parents entitled to reimbursement for privately-obtained tutoring from the Commonwealth Learning Center and speech therapy from the North Shore Children’s Hospital?
POSITION OF PARENTS
The IEPs and placement that Peabody provided for 2004-2005 and 2005-2006 were not and are not capable of providing Student with FAPE. Peabody’s placement for 2004-2005 was not the comprehensive, language-based program that was recommended by Student’s evaluators and described in his IEP. Instead, Peabody’s placement was characterized by a random “sprinkling” of language-based techniques within the standard curriculum rather than a coherent language-based approach. The placement’s shortcomings also included an inadequately supervised, inexperienced teacher, a lack of service coordination, and an inappropriate peer group. The mainstream math class was also inappropriate for Student because it did not address his underlying language disability. Independent standardized testing that has not been countered by Peabody’s evaluations indicates that while Student has made measurable progress in some discrete skill areas, many of Student’s skills have stagnated and/or deteriorated during the 2004-2005 school year. Finally, Student experiences anxiety and emotional upset at home in relation to his school experience. The IEP for 2005-2006 under which Student is now being served is similar in most respects to the 2004-2005 IEP but, notably, the teacher whom Peabody offered as the lynchpin of that placement has resigned and been replaced with a teacher lacking in relevant experience; therefore, this IEP is not calculated to provide Student with FAPE.
In contrast to Peabody’s program, the placement and services available at the Landmark School elementary program would provide Student with FAPE. Landmark provides a comprehensive and integrated language-based program that would address Student’s language and learning needs. The peer grouping is appropriate. Student has attended summer sessions at Landmark at parental expense, and has done well there. Moreover, Student is much happier when he attends the Landmark summer program.
POSITION OF SCHOOL
Peabody’s IEP and placement for 2004-2005 provided Student with FAPE. Student achieved and/or made meaningful progress on all of his IEP goals during 2004-2005 in both his self-contained classroom and in his mainstream math class. In addition, Student, who started the 2004-2005 year as shy, clingy, and unsure of his abilities developed into a happy, outgoing, confident learner who had made genuine friendships with both regular and special education peers. The test scores provided by Parents’ evaluators do not provide a complete or accurate picture of Student’s progress, in contrast to the day-to-day experience, regular observations, work samples, and other data provided by Peabody that show steady progress in all goal areas. The 2005-2006 IEP and placement that currently is in effect provides even better and more coordinated services for Student than the previous year’s IEP. Peabody has replaced the teacher who resigned with another well-qualified teacher.
Additionally, if Student displayed any emotional upset or unhappiness within the school setting, he no longer does so. He does not have a current or past diagnosis of major mental illness or serious emotional disturbance. Any reported emotional/behavioral issues at home cannot be attributed to Student’s school situation, but rather seem related to fairly commonplace stressors and conflicts with other family members. Finally, the Landmark School placement favored by Parents is overly restrictive for Student, and many of its teachers/tutors have less experience and/or fewer credentials than Peabody’s teachers. Student’s test scores declined over the course of his summer sessions at Landmark, indicating that Landmark is not a panacea for Student’s learning problems. Finally, Student has changed schools several times in his short career. It would be detrimental for him to move to yet another placement at this time.
FINDINGS OF FACT
1. Student is a nine-year-old child who lives with Parents and an older brother in Peabody. Student has been described as a very nice, sensitive, bright, well-behaved boy with at least average intellectual ability. Student works very hard in school and wants to do well there. Student enjoys baseball, and plays on a local team. He is a very skilled skateboarder, and also enjoys snowboarding. Student can be reserved and quiet in new settings and with new people, but becomes more outgoing and participatory after he has gotten more familiar with the situation. Student has friends and is liked and respected by peers and adults. (Mother, Staples, Kovach, Charbonneau, Budd)
2. Although the parties do not completely agree on the precise nature and severity of or the correct label for Student’s learning issues, they do not dispute that he has a mild to moderate language-based learning disability that affects reading, (decoding, fluency, comprehension), written expression, (including spelling), and math reasoning, as well as executive functioning (organization and planning). Student’s reading difficulties have been described as consistent with a diagnosis of dyslexia, although not all Peabody staff agree with this label for Student. Student has some mild attention weaknesses but has not been diagnosed with ADHD. (Adams, Budd, P-2, P-3)
3. Student does not have a serious emotional disorder that impedes his learning, but, at times, has been anxious, frustrated, upset and/or unhappy over various situations in his life, including his struggles with school. Student’s has expressed this frustration almost entirely at home, rather than at school. He also, at times, has lacked confidence in his academic abilities. Additionally, in the past, he has been shy and timid, but has made much progress in this area. Both his lack of confidence and shyness have been seen in school. (Mother, Kovach, Budd, Staples)
4. Student has many areas of academic strength, including comprehension of oral language and math computation. (P-4, Budd, LaRosa, Charbonneau)
5. Student attended kindergarten (2001-2002) and first grade (2002-2003) in a private Catholic school. Previously, beginning at age 3, Student also had attended private preschool, where he received speech/language services for articulation problems as well as monitoring of fine motor skills under IEPs issued by Peabody. Peabody discharged Student from speech therapy in May 2002, during kindergarten, with Parents’ agreement, because he had achieved his IEP goals. (S-64-71; Mother)
6. Student did well in kindergarten at the private school. (S-67) During the first two quarters of first grade, Student did well in all subjects except handwriting. During the second term, however, Student began to struggle in school. His effort and classwork were inconsistent, and he was having problems with reading, (including phonics and sight words), writing and copying, and completing assignments. Student was falling behind his peers. (Mother; Ex. P-3)
7. In addition to his school difficulties, Student was having problems at home. At age 6, Mother found that “he was a handful. He was obstinate, he was stubborn, he was defiant.” (Mother) He had temper outbursts if he was tired or stressed. Student had a hard time expressing himself verbally, which was frustrating for him. Homework became very problematic and was the source of much conflict between Student and Mother. (Mother, Kovach) Student was struggling to feel that he fit in with peers, or that he was competent. He had difficulty taking pleasure in his accomplishments. (Kovach)
8. Both the private school and Parents intervened to help Student. The private school provided after-school help and reading support one day per week, as well as modified spelling assignments. (Mother, Ex. P-3)
9. Additionally, in December 2002 or January 2003, Parents enrolled Student in counseling with a clinical psychologist, Therese Kovach, Psy.D. (Mother, Kovach S-106) Dr. Kovach met with Student individually, approximately once every other week, from that time to the present, and has also met periodically with Parents and the family. The goals of therapy have included improving Student’s self-esteem, confidence, and self-expression.2 (Kovach)
10. During the second part of the school year, the parochial school suggested retaining Student in the first grade because of inconsistent skills. (P-3, Mother)
11. In response, in late March of 2003, Parents obtained a privately-funded psycholinguistic evaluation from Robert Kemper, Ph.D in order to determine Student’s learning needs. (Mother; P-3)
12. Dr. Kemper found Student to be cooperative, diligent, and eager to please. Student was able to converse on an age-appropriate level but had occasional problems with word retrieval and grammar. He did not have attention problems during testing. Student’s test results can be summarized as follows:
· Oral Language: Processing of single words—above average; confrontation naming—average; listening comprehension—average; oral expression—below average, oral language composite—low average3
· Written Language: sight word efficiency, phonemic decoding efficiency, total word reading efficiency: all “below average.”4 Student has core of sight words that he recognizes slowly; can decode open, but not closed syllable non-words. Single word decoding—average based on age, below average based on grade. Made letter substitutions. Oral reading fluency (Gray’s Oral Reading Test or GORT)—below average-poor. Substituted structurally similar words for target words
· Written language expression—average
· “Underpinning Literacy Acquisition”: Phonological awareness—average to below average (poor) with relative strength in phonological processing, weakness in phonological memory and rapid naming. Will cause problems with decoding unfamiliar words, reading connected text fluently. Auditory conceptualization—somewhat below age and grade expectancy.
13. In sum, Dr. Kemper concluded that Student exhibits characteristics of dyslexia. He has relative strengths in some measures of oral language and phonological awareness, and weaknesses in spelling, reading fluency, decoding, word retrieval, retrieval of syntax for oral expression, and use of correct capitalization and punctuation for writing. According to Dr. Kemper, this pattern of strengths and weaknesses would likely cause Student to have difficulty retrieving and accessing words, syntax and grammar from long-term memory, which would affect his ability to participate in long class discussions, and formulate correct sentences orally and in writing, as well as to decode familiar and unfamiliar words. Decoding problems and lack of reading fluency would interfere with comprehension. Dr. Kemper’s impression was that Student exhibited characteristics of dyslexia, although Student was too young for a formal dyslexia diagnosis. He recommended that Student receive a daily tutorial in reading, spelling, and written language from a tutor with training in a rules-based methodology like Orton-Gillingham or Wilson Reading; LiPS training to address phonological processing and auditory conceptualization; and direct speech/language services. (P-3)
14. Finally, Dr. Kemper recommended a follow-up psycholinguistic assessment in one year, with consideration of placement in a specialized school for dyslexic students if Student had not made “substantial progress.” (P-3)
15. In April 2003, based on Dr. Kemper’s report, Parents enrolled Student in the Commonwealth Learning Center for 20 hours of LiPS training. (Mother)
16. That same month, at Parents’ request, Peabody conducted a Chapter 766 evaluation consisting of speech-language and psychological assessments. The speech/language evaluation assessed Student’s skills in listening comprehension, phonological awareness, and grasp of semantics, syntax and phonology. Student scored in the average to above average range in all areas tested. Functionally, he was able to carry on a conversation, use complex sentences, sequence pictures and tell a story based on the pictures, retell a dictated story, and follow three-step directions. The speech/language therapist concluded that his communicative ability was adequate for school purposes and that he had no communication disability. (P-4)
17. The psychological evaluation, conducted by Dr. Ruth Budd, Ph.D., revealed that Student has solidly average cognitive ability. He showed relative weakness in mental flexibility and in processing complex visual information. Behaviorally, Student was clingy and had trouble separating from Mother for testing. He was very sensitive, had appropriate spontaneous language, and Grade I readiness skills. Overall, Dr. Budd found that Student was at risk for future difficulties with processing visual information (including written text), and should be given additional time to complete written tasks, but did not have a disability at the time of her testing. (P-5, Budd)
18. Peabody’s academic testing was conducted by Ms. Doreen Reidy on April 9, 2003. On the Woodcock-Johnson Test of Achievment-III, Student earned “Average” composite scores in the Broad Reading, Broad Math, and Broad Written Language clusters, and “High Average” in Oral Language. He earned average or high average scores in all subtests except for a “low average” in Reading Vocabulary and Writing Fluency.”(S-18)
19. Peabody held a TEAM meeting on May 9, 2003 to review Peabody’s and Dr. Kemper’s testing, as well as reports of Student’s first grade teacher from private school. Peabody found Student ineligible for special education, stating in a notice dated May 11, 2005 that “although [Student] had some areas of weakness that may [a]ffect him in the future, currently he was not determined to have a specific learning disability or communication disability.” (S-55)
20. In a letter dated July 16, 2003, Mother requested reconsideration of the finding of non-eligibility, citing, among other things, the June 2003 report of Commonwealth Learning Center (CLC) (P-8) The CLC report stated that Student has a language-based learning disability and would benefit from one-to-one LiPS instruction, followed by one-to-one reading instruction using the Orton Gillingham or Wilson programs. (P-7)
21. From June to August, 2003, Student attended the Landmark School summer program at parental expense. He participated in a reading/language arts tutorial and received small group instruction in language arts and math. Landmark’s narrative report dated August 2003 indicates that Student made progress in some areas such as reading fluency, writing, and sight word recognition. However, testing with parts of the Woodcock Reading Mastery-4 (word identification and word attack) and the GORT-4 showed a decline in standard scores, percentile ranking and grade equivalent in these areas since March 2003 for the GORT and June 2003 for the Woodcock. (P-9). On the other hand, Student was happy and enthusiastic about the summer program. (Mother)
22. In August 2003, Parents decided to transfer Student from Catholic to public school in the hope that he would receive services. (Mother, Tr. II) In September 2003, Student began second grade in a regular education classroom at the Center School in Peabody. On September 11, Student began receiving private speech/language therapy services, 2×60 minutes per week from North Shore Children’s Hospital, funded by Parents’ insurance. (Mother, P-17)
23. On September 19, 2003, Parents and Peabody entered into a mediated agreement relative to the May 2003 finding of no eligibility, in which, among other things, Peabody agreed to provide Student with reading help 2×30 minutes per week, and convene a TEAM meeting in November 2003. (P-10)
24. The TEAM met on October 10, 2003 and found Student eligible for special education on the basis of a specific learning disability that has a visual-spatial component. (P-11, S-51) The TEAM determined that Student’s “demonstration of skills in formalized testing is superior to the work product that he is able to produce in the classroom;” that Student has difficulty “getting started” on assignments and needs help to organize his ideas; has difficulty processing complex visual information, and with planning and organizing himself and his environment; has difficulty with decoding, does well with oral information, and appears somewhat less mature than his peers. (P-11, S-51)
25. Peabody issued an IEP covering October 2003 to October 2004 that contained two annual goals focusing on reading skill development (improving sight vocabulary and decoding) and comprehension (improving ability to summarize written material, either orally or in writing.) Id.
26. The IEP provided for 3×45 minutes per week of resource room instruction in reading using a “structured phonics multi sensory reading program,” as well 2×40 minutes per week of academic support from the special education teacher within the regular second grade classroom and 15 minutes per week of consultation. The accommodations and modifications listed included, but were not limited to, assistance in getting started, cueing and redirection to task, graphic organizers, templates, computer with spell check, extended time for written work, study guides, repetition of material, word banks, extended time for written work, etc., as well as limitations on clutter or other visual distractions in the environment and on worksheets. (Id) The intent of the IEP was to emphasize quality rather than quantity of written work as well as to reduce stress surrounding homework; thus, Student’s weekly spelling list was to be reduced, homework was to be considered complete after 30 minutes, and Student was to be allowed to use alternate formats (e.g., oral answers) if written work did not accurately show his knowledge. (Id)
27. Mother accepted the proposed IEP and placement on the day it was issued, October 20, 2003. (Id.)
28. Peabody conducted an OT evaluation in November 2003 that showed weaknesses in hand strength, fine motor skills and visual-perceptual skills that affected Student’s writing output. In December 2003, Peabody amended the IEP to add direct and consultative OT services as well as some additional accommodations. (S-48, 49). Mother accepted this amendment in December 2003. (S-48)
29. Student’s second grade schedule reflects that in addition to regular education subjects (reading block, phonics, spelling, writing workshop, social studies, science, computer lab, and specials), he received, 3×30 minutes per week of 1:1 Wilson reading, and 2×30 of 1:1 “reading pull-out,” as well as in-class and pullout OT. (S-46.) For much of that school year, Student was also still receiving speech/language therapy twice weekly from North Shore Children’s Hospital. (Mother)
30. Overall, Student made progress in reading, writing, and visual-spatial skills during 2003-2004. He did very well in one-to-one instruction, e.g., with Wilson reading. By the end of the school year, he had achieved his IEP goals in reading and OT. However, he still was having difficulty applying the skills he had learned to the general classroom or to homework sessions, as well as in completing his work on time. (S- 35, Mother)
31. Homework also continued to be a problem in second grade. Mother found that Student spent over an hour per night on assignments that should have taken 15 or 20 minutes, and did not seem to retain concepts that he had learned. In-class assignments were also inconsistent, some well-done and others unfinished or illegible. (Mother)
32. Additionally, Student’s emotional difficulties continued. He also continued to lack enthusiasm and self-confidence, as well as to get argumentative, angry, and/or tearful with Parents at homework time, although his mood and behavior at home generally seemed to improve with counseling. In January 2004, Student’s second grade teacher referred him to the guidance department because of concerns over self-esteem, withdrawal, inattentiveness, fatigue, and depression/unhappiness. (S-45).
33. In a letter to Peabody dated January 30, 2004 Dr. Kovach stated that Student’s “behavioral/emotional difficulties [were] not significant enough…to cause learning difficulties,” and that Student did not have ADHD or depression. On the other hand, Dr. Kovach viewed Student as sensitive to criticism. She felt that he interpreted his “weaknesses as signs that he may be inadequate or even “bad.” Dr, Kovach concluded that Student found school to be “very demanding and overwhelming,” and also felt that he had few successes in school. (S-43) Dr. Kovach further wrote that Student “needs a great amount of adult support and structuring of school assignments…[and]…a strong multi-sensory approach.” (Id). Later in the school year, after the March 2004 progress meeting, Dr. Kovach told Peabody’s psychologist, in response to the latter’s inquiry, that Student did not need to undergo projective testing. (Kovach, Budd)
34. In April 2004, at Parents’ request, North Shore Children’s Hospital conducted a neuropsychological evaluation of Student. This evaluation revealed that Student disliked schoolwork, especially reading, but that Student felt he had made progress. Responses to parent and teacher questionnaires showed that Student had problems with organizing himself (forgot homework, was sloppy, felt overwhelmed, did not plan ahead, was clingy, irritable, easily distracted.) These questionnaires also showed that Student had “significant and pervasive” difficulty managing school demands in the areas of planning, task shifting, organization, and working memory. (P-15) Formal testing showed that Student had executive functioning weaknesses, attentional weakness for sustained visual attention, and “pronounced difficulties” with planning and organization. He had mild difficulties with working memory and attention regulation and more significant problems with metacognition. (P-15) Student had superior rote memory skills. Academic skills were average for Student’s age and grade. Student was able to use phonetic strategies for decoding, but had more difficulty using these rules for spelling. Student’s overall written language scores were average, but he had problems with capitalization, punctuation and messy handwriting. Student’s oral reading was on the lower end of average. Student had difficulty accessing and organizing his abilities. (P-15)
35. The evaluator concluded that Student has a profile consistent with dyslexia, average to above average intellectual ability with simple tasks but significant difficulty with planning, organization, and integration of complex information that resulted in lowered output. Recommendations included accommodations to support Student’s weak executive functioning, including a small classroom, a well-organized and supportive teacher, and non-disruptive peers. Specific academic accommodations and strategies included breaking down complex tasks, pairing visual and verbal presentations, graphic organizers, and activities focusing on teaching how to think. Counseling was also recommended to support Student’s self-esteem. (P-15)
36. North Shore Children’s Hospital also conducted a speech and language evaluation in May 2004, at the time it discharged Student from private speech-language therapy being provided at the Hospital. The evaluation report stated that Student was making “excellent and consistent progress” in improving his encoding and decoding skills, phonological awareness and spelling. Student was still functioning below his age level in the area of phonological awareness, and NSCH recommended continued speech-language services within the school setting. (P-16)
37. In June 2004, Peabody conducted an assistive technology assessment and recommended continued assistive technology services. (S-38)
38. On June16, 2004 the TEAM developed an IEP for third grade (2004-2005) providing for placement in a substantially separate classroom at the Carroll school, which is another public elementary school in Peabody. Student was to be in the self-contained classroom for all academic subjects except math, which was to be in a regular education third grade class with paraprofessional support. The IEP also provided for twice-weekly pullout OT and both TEAM5 and assistive technology consultation. Accommodations and instructional methods were similar to those specified in the previous year’s IEP. At the TEAM meeting and in a letter submitted to the TEAM, Mother requested placement at Landmark School; however, she accepted the proposed IEP and was optimistic that the new self-contained classroom would meet Student’s needs. Mother declined Peabody’s offer of Wilson reading services over the summer, as Parents had decided to send Student to the Landmark summer program again. (S-34, Mother)
39. Student attended the Landmark School summer program during July-August 2004. According to Mother, Student enjoyed his experience, and felt as though he was learning, and cried when the session ended. (Mother) Standardized testing that Landmark administered in August 2004 showed a decline in Student’s percentile ranking on the Woodcock Johnson Test of Reading Mastery since August 2003, but an increase in the grade equivalent score. Student’s performance on the word attack and word identification subtests declined from, respectively, the 48 th to 37 th percentiles, and 54 th to 47 th percentiles between 2003 and 2004. These percentile rankings correspond to grade equivalents of 1.8 in both subtests in 2003 and 2.3 (word attack) and 3.3 (word identification) in 2004, after Student had finished second grade. Student’s performance on the Gray’s Oral Reading Test (GORT) appeared to decline. (P-19)
40. For third grade (2004-2005) Student attended the self-contained language based program referred to above for all academic subjects except math, for which he was mainstreamed with an aide. Student also received 5×30 per week of 1:1 Wilson Reading instruction, and pull-out OT services. (Staples, LaRosa, P-1)
41. The self-contained class was taught by Ms. Hollis Staples, with the assistance of a paraprofessional, Ms. Glazer. Ms. Staples has a Master’s degree in special education, and certification in moderate special needs. She has completed several graduate and professional development courses, including an overview of the Wilson Reading program. As of the date of hearing, Ms. Staples had just achieved her Level I Wilson Certification. At the start of Student’s third grade year, Ms. Staples had approximately seven years of teaching experience, mostly as a basic or life skills teacher and inclusion specialist at the high school level. Ms. Staples had also been a study skills teacher and 1:1 tutor at the Landmark School for one school year. Although Ms. Staples had taught students with language based learning disabilities prior to the 2004-2005 school year, she had never taught a self-contained class for this or any population. (Staples, S-85)
42. Ms. Staples’ third grade class consisted of a total of nine students, including Student. Sanitized IEPs and test reports for the eight other students show that two other boys had similar profiles to Student in that they had average to high average cognitive abilities, with specific weaknesses in reading, writing, organization, and/or ability to work independently. These two boys functioned academically at or above Student’s skill level. Both of them attended Ms. Staples’ class for reading and language related activities but were mainstreamed for science and social studies and at least one was mainstreamed for all subjects but reading. Of the remaining six students in the class, four had average to low average scores on cognitive testing and two had low average to borderline cognitive skills. These six children also had specific difficulties in reading and written language and/or organizational skills. In general, they had weaker academic and cognitive skills than Student. Two of the children also had neurological impairments. Although some of the 9 students had or have difficulties with attention and focus, none had serious behavioral or disciplinary problems. (P-28—P-49)
43. Student’s schedule in Ms. Staples’ self-contained classroom included daily small group (3 students) instruction in reading (described as “remedial” and “curriculum”). A portion of this reading block was spent working on the computers with reading and writing software6 The schedule also included whole-class (9 students) instruction in spelling/phonics and cursive writing. Science and social studies were whole group lessons; however, the two other students from Students reading group were mainstreamed for these subjects. The curriculum for the class was the regular third grade curriculum (Staples, S-16, 17)
44. In addition to the daily reading block in the self-contained class, Student met each day with Ms. Diann LaRosa for 1:1 tutoring in Wilson Reading to work on decoding and encoding skills. Ms. LaRosa is a “diagnostic prescriptive teacher” at the Carroll School. Her primary responsibility is to conduct reading evaluations and provide specialized reading instruction directly to students using the Wilson, LiPS and Seeing Stars programs as well as to serve as a resource to other teachers in the area of reading. Ms. LaRosa has a Masters’ degree in education, a Certificate of Advanced Study in Reading from Massachusetts General Hospital (pending practicum) and is certified in elementary and special education. Ms. LaRosa has passed the MTEL examination, which qualifies her to serve as a reading specialist. She is certified as a Wilson Level I instructor. (LaRosa) Ms. LaRosa has several years of experience in working with students who have language-based learning disabilities and is familiar with and has used language-based teaching strategies with this population. (LaRosa)
45. Student was mainstreamed for math in the regular third-grade classroom of Ms. Susan Charbonneau for one, 60-minute period per day. Ms. Glazer, the classroom aide from Ms. Staples’ room, came into the math class for part of each period in order to provide Student with support. Ms. Charbonneau provided accommodations to Student to enable him to function in the mainstream (Charbonneau)
46. Student also received pullout OT twice per week with Ms. Lisa Ginivisian, who worked with Student on hand strength, visual spatial skills and handwriting. (Ginivisin)
47. During third grade, there was no formal planning time between or among Student’s service providers. Thus, there was no formal mechanism for Student’s teachers and service providers to jointly develop or coordinate lesson plans or learning units for Student. Although Ms. Staples and Ms. LaRosa did meet to discuss what words Student was learning in the Wilson program, Ms. Staples had only a general overview of what Ms. LaRosa was covering in the Wilson tutorials. Similarly, there were no formal meetings between Ms. Charbonneau and other TEAM members on an ongoing basis to discuss accommodation of Student’s disability in the general classroom, reinforcement of math concepts in the self-contained classroom, and the like. There also was little or no formal consultation between Ms. Charbonneau, Ms. Staples, and the speech or occupational therapists. While Dr. Budd frequently dropped into Ms. Staples’ classroom, she did not have formal planning time with Ms. Staples. Student’s teachers, tutor and Dr. Budd all believe that such planning time would be helpful. (Budd, Staples, Charbonneau, LaRosa)
48. Ms. Staples received general supervision from the building principal, TEAM chairperson, and Special Education Director, but no regular, substantive supervision that just focused on Student and his needs or on language-based learning disabilities. (LaRosa, Staples, Charbonneau)
49. Parents continued to be concerned about Student’s progress in third grade, primarily because Student continued to struggle with homework, and to have difficulty in learning and retaining math facts and concepts. Parents felt that the quality of Student’s written work was inconsistent and appeared to be worse than the prior year. Mother felt that she would go over concepts with Student and that he either just would not “get it,” or seem to master the concept one day only to seemingly forget what he had learned by the next day. (Mother)
50. In December 2004, Parents sought a private evaluation from Phoebe Adams, M.Ed., who is a Learning Specialist employed by the Center for Children with Special Needs at New England Medical Center and also in private practice. Ms. Adams has approximately 25 years of experience in evaluating, teaching, tutoring, and observing children with language based learning disabilities. (Adams)
51. Ms. Adams reviewed school records, reports of prior testing by private evaluators and Peabody; and questionnaires completed by Parents and teachers. As is her practice, after reviewing these records, Ms. Adams developed a battery of tests for Student that were designed to shed additional light on areas related to Student’s previously diagnosed disabilities as well as on his overall functioning. Testing focused on aspects of reading as well as on academic achievement. (Adams)
52. Ms. Adams tested Student using the WIAT-II to assess general achievement; the Standardized Reading Inventory (SRI) and GORT, and parts of the Test of Reading Comprehension (TORC). (Id., pp. 210-213) To the extent possible, Ms. Adams compared the scores on these tests with equivalent tests given in the second grade. (Adams) Additionally in February 2004 Ms. Adams, accompanied by Dr. Budd, observed Student for one hour each in Ms. Staples’ class and Ms. Charbonneau’s mainstream math class. (P-2, Adams, Budd)
53. Like Dr. Kemper and North Shore Children’s Hospital, Ms. Adams found that Student had a pattern of performance consistent with dyslexia. Like other evaluators and Student’s teachers, Ms. Adams found that in reading, Student demonstrated uneven skills ranging from well below average to low-average or average. She also found that in the context of her testing, Student had learned some basic decoding skills but had little ability to apply and generalize what he had learned. He had great difficulty with various aspects of written language, including spelling, punctuation, getting started on written assignments, and organizing his language for writing. (P-2; Adams)
54. The results of Ms. Adams testing showed regression in some reading skills since previous testing in 2003 and little progress in written expression since that time. (P-2, Adams)
55. Ms. Adams recommended a substantially separate, specialized classroom for students who have at least average cognitive ability and language based learning disabilities. She asserted that the program should be “language-based” in that language skills should be explicitly taught, and language-based strategies should be incorporated in all lessons. Ms. Adams also recommended daily language arts instruction including a structured rule-based decoding and encoding program. Math instruction should also be in a small group, again using language-based methodologies to address language weaknesses. Other recommendations included reduced writing requirements, direct instruction in organization and planning. (P-2, Adams)
56. Based on her observations of Student in both his self-contained classroom and in Ms. Charbonneau’s math class, Ms. Adams concluded that the Student’s placement was not an integrated language-based program, and was not responsive to Student’s needs. (Adams, P-2) Although some language-based techniques were employed during various lessons, Ms. Adams concluded that the program did not consistently weave explicit language instruction into the entire school day, as she believed Student needed. Additionally, Ms. Adams concluded that although the mainstream math class had many positive features it did not use language-based strategies. (Id.)
57. Finally, Ms. Adams questioned whether the peer group was appropriate. Here concerns stemmed partly from her observation that the other students did a lot of calling out in class so that the teacher had to spend much time enforcing rules. She felt the focus of the class was on cooperation and “being good” rather than on language strategies. (P-2, Adams) Additionally, Ms. Adams noted that there were only two other students who were at Student’s academic level. Since these students were mainstreamed for science and social studies, Student lacked a closely-matched cohort for these subjects. (P-2, Adams)
58. The TEAM convened to review Ms. Adams’ report on April 6, 2005. Mother stated that she did not feel Student was progressing, that Student’s classmates had behavioral issues; that his self-esteem was negatively affected by being in the class and that he felt the work was “easy.” She reiterated her request for Landmark School and reported Student’s enjoyment of the Landmark summer program. (Mother)
59. On the other hand, Student’s teachers and service providers all reported that Student was making progress. Ms. Staples reported that Student had made friends in both her room and the general classroom, and did well with highly structured lessons. (S-5. Staples, Budd, Charbonneau, LaRosa)
60. Ms. LaRosa, Student’s reading teacher, reported that Student had moved from Book 3 to Book 5 in the Wilson reading program and was on target for decoding. Ms. Charbonneau, the general education third grade teacher, found that Student had some difficulties in class but no more than many other students (including students who were not on IEPs). In fact, Ms. Charbonneau, felt that Student’s aptitude and skill level placed him just about in the middle of her class, and that there were regular education students who ranked lower than he did. Ms. Charbonneau used various accommodations and strategies to support Student’s areas of weakness and felt that they were effective. (Staples, LaRosa, Charbonneau, S-5)
61. Dr. Budd reported that she disagreed with Ms. Adams’ perception of Ms. Staples class, that the so-called behavioral problems were actually classroom management problems that had been corrected, and that generally the class was appropriate for Student. Ms. Staples, Ms. LaRosa, and Dr. Budd agreed that Student was less proficient on open-ended tasks than on highly structured lessons, and still had weaknesses in spelling, reading fluency and applying Wilson strategies to other reading. (S-5) The TEAM recommended a full evaluation to assess Student’s progress and functioning. (S-5)
62. Accordingly, Dr. Harriet Budd conducted a comprehensive psychological evaluation on May 17, 19 and 31, 2005 consisting of standardized testing in the cognitive, academic, and emotional domains, as well as questionnaires, consultations and interviews to obtain input from Student, Parents, and teachers. (S-1)
63. A summary of Student’s scores follows:
· WISC-IV: Average to high average
· WIAT: Low average in Basic Reading, Average in Math Reasoning and Spelling
· WRAML: High average in all subtests of Story Memory
· Children’s Auditory Verbal Learning Test: range from 79 th to 90 th percentile on all tests of immediate and delayed memory for word lists.
· Parent and Teacher behavior and executive functioning ratings: no “clinically significant” responses.
(Budd, S-1)
64. Dr. Budd observed that Student was far happier, more outgoing, more talkative and articulate than he had been when he previously was tested; he made “enormous leaps of growth, particularly with social-emotional development” since second grade. (S-1, Budd) He had matured so well that he seemed “like a different child.” (Budd) Based on testing and teacher reports, Student had made progress in Wilson Reading, as well as in other aspects of reading, written language, and math. Dr. Budd made several recommendations, including continued placement in a self-contained LD classroom with inclusion for math, consideration of additional inclusion opportunities, consideration of direct speech-language services. (Id.)
65. On June 5, 2005, the TEAM met to develop Student’s IEP for the 2005-2006 school year. At the meeting, Mother expressed concern that the self-contained program at the Carroll elementary school was not appropriate for Student, that his self-esteem was negatively affected, and that he was not making measurable progress. Again, Mother requested placement at Landmark for the fourth grade. (Mother)
66. On the other hand, Student’s teachers and providers felt that he had made significant progress. Ms. Staples felt that Student had achieved or progressed toward all IEP goals. Notable to her was Student’s social and emotional growth. He had been very shy at the beginning of the school year, and by the time of the TEAM meeting had many friends in both regular and special education. His self-confidence had also improved. He had also made academic progress, improving his ability to read sight words and to use graphic organizers for writing. Ms. Staples did not know or determine through formal testing what Student’s reading level was at the beginning, end, or other points during the school year, but concluded that he had made progress based on observation of his day to day work. (Staples) Student’s math teacher, Ms. Charbonneau, felt that Student had made meaningful progress, was doing grade level math work, and functioned somewhere in the middle of his class in terms of skill level. (Charbonneau) Student passed the third grade MCAS exam in reading with a “needs improvement” score, with no accommodations. (Staples, S-102)
67. Ms. LaRosa, Student’s Wilson tutor, felt that Student made effective progress with the Wilson Reading program during third grade. In October 2004, when she first began to work with him, he was functioning at about a second grade level in reading, decoding one-syllable words. By December 2004, Student was reading three-syllable words. He had also progressed with spelling and written language, although not as consistently. He was beginning to carry over the skills he had learned through Wilson Reading into the classroom, but needed prompting. By April of 2004, Student was working in Book IV of the Wilson series (he had started the year reviewing Book II and then moving into Book III), and was beginning to decode words with more complex structures. Ms. LaRosa characterized this rate of progress in decoding as “excellent.” Spelling progress was good although not as rapid as decoding. According to Ms. LaRosa, any lags in comprehension will be remediated with improved decoding and fluency. Student’s underlying ability to understand concepts and reason verbally, which is the cornerstone of comprehension, is very strong, as long as he is not tripped up by the mechanics of decoding. (LaRosa)
68. The 2005-2006 IEP calls for continued placement in a self-contained fourth grade classroom for students with language based learning disabilities for all subjects except for math, which is in the mainstream with paraprofessional support. The IEP also provides for continued 1:1 Wilson Reading for 45 minutes per day, pullout OT 2x 30 minutes per week, and in-class speech-language therapy 2×30 minutes per week. The IEP provides for more consultation time than prior IEPs, with 60 minutes per month each from the assistive technology specialist and the special education teacher, OT and speech/language pathologist. (P-62)
69. The IEP also provided for 6 weeks of Wilson Reading instruction during July and August 2005, but Parents opted to send Student to the Landmark summer program again. (Mother, Pulkkinen; P-62)
Program Proposed by the Parents
70. The Landmark School (Landmark) is a Chapter 766-approved day and residential school with headquarters in Newburyport. Landmark specializes in serving elementary, middle, and high school students who have language-based learning disabilities including dyslexia. Students admitted to Landmark typically have at least average cognitive ability and do not have major emotional or behavioral disabilities. Landmark provides an intensive and comprehensive program consisting of one-to-one tutorials in reading and language skills as well as small group class instruction. Development of reading and language skills is addressed across all curriculum areas. (Pulkkinen)
71. Student has been accepted as a day student in the elementary school program. (Mother) Elementary students receive small group (6 to 7 students) instruction in language arts (including written expression), math, auditory/oral expression, literature, combined social studies and science, an elective and physical education. Students also receive a daily, 1:1 language arts tutorial that is individualized according to their needs and skill levels. Library and music classes are provided on a biweekly basis. Students are grouped by skill level for each subject, and groupings may cut across grade and age lines. (Pulkkinen, P-21)
Program Proposed by the School
72. Peabody’s program and services are described paragraphs 66 and 67, above. In sum, the program is similar to that provided in third grade, with updated and revised goals, benchmarks, and accommodations, the addition of in-class speech-language therapy, and increased consultation time. In addition, the fourth grade class at the Carroll school is intended to serve a more homogeneous grouping of students than in third grade, with skill levels comparable to Student’s. At the time of the hearing, Peabody’s plan was to form the Student’s fourth grade class by grouping Student with the two other more advanced students in his class as well as with as additional students with similar profiles drawn from other Peabody schools or classrooms. (Fuller, Budd)
73. Student enrolled in Peabody’s program in September 2005 in a self-contained classroom with four other fourth-grade boys whose profiles and academic levels are similar to Student’s. (Affidavit of Coffin) His daily schedule consists of a 2-hour literacy block (45 minutes of which Student spends with Ms. LaRosa for his Wilson tutorial); written language skills, John Collins writing, inclusion math, and “specials.” The classroom teacher meets regularly with Ms. LaRosa to coordinate what Student is studying in class with what he is working on in his Wilson tutorial. (Id)
74. Peabody had originally designated Ms. Sarah Fuller, who has an extensive background and experience in teaching students with language-based learning disabilities, as the teacher for the class proposed for Student. Shortly after the start of the 2005-2006 school year, Ms. Fuller resigned unexpectedly. Peabody filled Ms. Fuller’s position with another special education teacher, Ms. Melanie Coffin. Ms Coffin has a masters degree in special education and is certified in moderate special needs for grades pre-K through 9.7 She is currently enrolled in a C.A.G.S. program leading to certification in principalship, She also is enrolled in the Wilson Level I training course. (Affidavit of Melanie Coffin). Ms. Coffin’s past experience has been primarily as an inclusion teacher for children with varied diagnoses ranging from learning disabilities, attentional issues, social-emotional disabilities, and autism spectrum disorders. (Affidavit of Coffin)
75. Ms. Coffin has observed that Student seems comfortable in class and is an active participant. She is fully confident that she can implement Student’s IEP. (Affidavit of Coffin)
FINDINGS AND CONCLUSIONS
Based on the evidence at the hearing, I conclude that the Peabody’s IEP and placement for the 2004-2005 school year, were flawed, but nevertheless provided Student with FAPE. I further conclude that the IEP and placement for 2005-2006 are reasonably calculated to provide Student with FAPE, with certain modifications discussed below. Because there has been no denial of FAPE, Parents are not entitled to compensatory services. My reasoning follows.
Legal Framework
The FAPE Standard
There is no dispute that Student is a school-aged child with a disability who is eligible for special education and related services pursuant to the IDEA, 20 USC Section 1400, et seq ., and the Massachusetts special education statute, G.L. c. 71B (“Chapter 766”). Therefore, Student is entitled to a free appropriate public education (FAPE) as defined in federal and state law.
The definition of FAPE in Massachusetts has been discussed extensively in prior BSEA decisions and will not be reiterated at length here.8 In sum, an eligible child, like Student, is entitled to a program and services that are tailored to his or her unique needs and that provide significant, meaningful benefit in light of the child’s needs and potential, that is, “‘effective results’ and ‘demonstrable improvement’ in the educational and personal skills identified as special needs.” 34 C.F.R. 300.300(3)(ii); Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993), citing Roland M. v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990), cert. denied , 499 U.S. 912 (1991)
Education must be provided in the least restrictive environment (LRE) consistent with an appropriate program; that is, students should be placed in more restrictive environments, such as private day or residential schools, only when the nature or severity of the child’s disability is such that the child cannot receive FAPE in a less restrictive setting. (Id.) The program need not be perfect, and, in Massachusetts, need no longer provide a student with maximum feasible benefit. In other words, as long as the student is making reasonable, meaningful, demonstrable progress in areas identified as special needs, the program and services may past muster.
Here, despite some minor disagreements about terminology (e.g., over the use of the term “dyslexia’) the parties agree on the nature of Student’s disabilities and educational needs. The parties do not dispute that Student is a likeable, sensitive, empathetic, intelligent child who has a moderately severe specific learning disability in the area of language. Student’s disability affects his reading (decoding, fluency and comprehension), written expression, visual-spatial, handwriting, and organizational skills. While his test scores show that Student has at least average skill development in many areas, he cannot consistently access or demonstrate these skills in the classroom context. Overall, he functions at roughly a year below grade level in reading-related subjects and written expression.
On the other hand, Student has some significant strengths, including the ability to do abstract verbal reasoning, to understand and remember what he hears, and to generate ideas. In addition, the record amply demonstrates that he is well-behaved, diligent, and motivated to learn. In the past he has been very shy and had a hard time separating from his parents and interacting socially, but now he is able to participate confidently in the classroom and generally hold his own socially in school. He has friends from school, both with and without disabilities. With accommodations and support, Student is able to do grade level work in math within the mainstream. Student can also can become anxious, frustrated or get into conflicts with family members if he feels he is not performing well. However, he has made progress in this area as well.
In addition to their agreement on Student’s profile, the parties are in general accord that for most subjects, Student needs to be educated in a substantially separate language-based classroom designed for students ho have similar profiles. They agree that he needs direct instruction in a multi-sensory rules-based reading program such as Wilson or Orton-Gillingham and also needs help with reading fluency, comprehension, written expression, math, and organizational skills.
The parties’ dispute centers on whether Student received FAPE during third grade, while he was enrolled in the substantially separate classroom at the Carroll school and whether he is likely to receive FAPE in a similar placement for fourth grade.9 Parents contend that the third grade IEP was not fully implemented because the Carroll School self-contained classroom was not a truly comprehensive language based program, the teacher was inexperienced and inadequately supervised and supported and the various services were not coordinated. These factors, Parents argue, led to denial of FAPE, as demonstrated by Student’s declining test scores in many areas. The fourth grade IEP, Parents contend, is simply more of the same.
The Third Grade IEP (2004-2005 )
In determining that Parents argument cannot prevail, I look first at whether Student made progress in third grade and find that he did so. There is no disagreement that Student made excellent progress with the Wilson program and with decoding generally. His writing, spelling and math skills increased steadily, if slowly. He became a participating member of his class, and seemed to be happy there. (La Rosa, Staples, Charbonneau, Budd)
Taken as a whole, the evidence in this case supports the school’s position that its services and placement have provided and and likely will provide Student with FAPE. On the whole, Student has made effective progress in Peabody’s program. Both the consistent testimony of Student’s teachers and the voluminous documentary record consisting of evaluations, school reports, and work samples, show that Student has made significant progress in all identified areas of weakness. In 2003-2004, Student achieved or made significant progress towards achieving all IEP goals. His decoding and sight word recognition improved significantly. His progress in written expression was less consistent, but still appropriate. His self-confidence “soared.” He was able to pass the reading MCAS during third grade with no accommodations. He had begun to try to apply language-based strategies that he had learned. He was holding his own in a mainstream math class, doing generally better than about half of his classmates both with and without disabilities.
Student might have made more progress if Ms. Staples, Ms. Charbonneau, Ms. LaRosa and other providers had formal, common planning time to coordinate Student’s services and keep track of progress. It seems obvious that where Student had/has more than one teacher, each of whom is responsible for addressing his language-based disability, that these teachers should have an opportunity to meet on a regular basis, so that, for example, Student’s reading assignment during the literacy block reinforces what is learning in Wilson tutoring. It is puzzling that this did not occur. However, these imperfections in service delivery did not prevent Student from receiving services, did not stop Student from making meaningful progress in third grade10 and do not constitute a denial of FAPE.
The fourth grade IEP is, as Parents state, substantially similar to the one issued for third grade, with the addition of speech/language services and additional consultation. Because fourth grade is likely to be more demanding than third grade, the planning time and service coordination are more important than in third grade. It is not the role of the Hearing Officer to determine exactly how and when Student’s teachers and providers interact, but rather to take steps to ensure that this year’s IEP provides for the communication and service coordination that last year’s did not.
The only expert evidence supporting Student’s move to Landmark was Ms. Adams’ testimony to the effect that Student was losing some skills, as reflected in a decline in certain subtest scores. Ms. Adams also testified that the substantially separate classroom that she observed was not the language-based classroom that Student required. I find that Ms. Adams test results are useful for pinpointing Student’s ongoing areas of weakness and shedding some additional light on how best to work with him.11 Similarly her observation provided an indication of how his classrooms were functioning at that time and highlighting areas that could be shored up or modified. However, the testing and observation do not support a conclusion that Student cannot be educated in the public school setting, with modifications made to his program as needed. Parents’ concerns simply are outweighed by the consistent evidence from many school providers and evaluators, as well as progress reports, report cards and work samples that show steady progress.
For the foregoing reasons, I find that Peabody did not deny Student FAPE during the 2004-2005 school year, and Parents are not entitled to compensatory service or other remedy on that basis.
The Fourth Grade IEP (2005-2006)
As stated above, the IEP for 2005-2006 is substantially similar to that for the prior year. The major differences are increased consultation time, direct speech-language services, and, reportedly, peers whose profiles more closely match Student’s. Therefore, at this juncture, Student should be able to make meaningful progress with this IEP. However, as discussed above, it is clear from the record that during third grade, the lack of service coordination and oversight, as well as common planning time likely diminished the effectiveness of Student’s program, even though Student was not denied FAPE. In light of the increased demands posed by the fourth grade curriculum and, possibly, by the more cognitively skilled peer group in which Student has been placed, such coordinated planning would be even more important. I find, therefore, that to ensure FAPE for Student for the duration of the 2005-2006 IEP, Peabody should develop a plan for common planning time and service coordination among all of Student’s teachers and providers, with the goal of ensuring consistency, carryover, and the ability to track Student’s progress.
Additionally, I am concerned that Student’s test scores have declined in some areas, and that neither party has been able to fully explain just what the various numbers mean or otherwise correlate the scores with Student’s actual skill level. I conclude, therefore, that Peabody must develop a mechanism (in addition to in-class tests, quizzes, assignments, etc.) for accurately and objectively measuring Student’s progress over the 2005-2006 school year, as well as for identifying areas of weakness for targeted and coordinated intervention.
Parents’ Claims for Reimbursement
Reimbursement for “self-help,” i.e. public funding for parents’ unilateral placement into an educational program (or purchase of educational services) may be available when a school fails to offer or provide appropriate services and the services obtained by the parents are appropriate. School Committee of Town of Burlington v. Dept. of Education of Mass ., 471 U.S. 359, 369-70 (1985. To be eligible for such reimbursement, parents must give the school district advance notice of the intended placement or services.
Here, Parents seek reimbursement for tuition paid to the Commonwealth Learning Center during 2003; to the Landmark School summer program during the summers of 2003, 2004, and 2005 (together with transportation costs), and private speech and language services provided by North Shore Children’s Hospital.12
Parents enrolled Student at the Commonwealth Learning Center (CLC) in April 2003 based on Dr. Kemper’s advice. At the time, Student was a first-grader in Catholic school. Parent placed Student in CLC without prior notice to Peabody and before Peabody had evaluated Student or found him eligible for special education. The Parents have not demonstrated why, under these circumstances, they are entitled to reimbursement, and I find that they are not so entitled.
Parents first enrolled Student in the Landmark School summer program in the summer of 2003. At that time, Peabody had found Student ineligible for special education. Parents have offered no basis for an entitlement to reimbursement for this service during a period when Student was ineligible for any special education services. Subsequently, in October 2003, Peabody found Student eligible for special education and offered an IEP that provided for an in-district extended school year (ESY) program for the summer of 2004. Similarly, the 2004-2005 IEP included an ESY component for the summer of 2005. Parents opted for Landmark instead of the summer programs offered by Peabody. They have a right to do so; however, they have introduced no evidence to show that the summer programs offered by Peabody were inappropriate (and, indeed, seem not to have rejected the ESY component of the IEPs) and, therefore, have no basis for reimbursement for tuition or transportation costs.
Parents enrolled Student in speech-language therapy at North Shore Children’s Hospital in September 2003, shortly before he had been found eligible for special education. He received 2×60 minutes per week of therapy from that time until May 2004, when he was discharged. Reports indicate that Student benefited from speech/language therapy. Once again, however, Parents have not introduced evidence of prior notice to Peabody that they intended to seek private therapy, that the absence of therapy in Peabody’s program for Student was inappropriate, or that they even rejected the absence of speech therapy from Student’s 2003-2004 IEP. Therefore, I decline to order reimbursement for the costs associated with the private speech therapy.
ORDER
Based on the evidence and applicable law, I conclude that the IEP and services that Peabody provided for Student during the 2004-2005 school years (including the summers of 2003 and 2004) provided Student with FAPE. Therefore, Parents are not entitled to compensatory services corresponding to that year, or to reimbursement for expenditures for the Landmark summer program, Commonwealth Learning Center, or North Shore Children’s Hospital.
I further conclude that the 2005-2006 IEP is reasonably calculated to provide Student FAPE if modified consistently with the following ORDER
1. Peabody shall immediately convene a TEAM meeting to develop a method for increasing the coordination of services and level of communication among Student’s teachers and providers, for the purpose of ensuring comprehensiveness of Student’s program as well as carryover of information and strategies across all program components.
2. Through testing or other professionally recognized method, Peabody shall immediately determine Student’s current instructional and achievement levels in all areas covered by his IEP. Peabody shall also develop and implement a method for accurately tracking Student’s progress.
By the Hearing Officer,
____________________ _____________________________
Sara Berman, Hearing Officer
1
On April 14, 2005 the Hearing Officer granted the Parents’ unopposed request to postpone the initial hearing date of April 27, 2005. A pre-hearing conference was held on May 23, 2005, at which the parties established the hearing dates.
2
Dr. Kovach’s testimony as to whether or not Student had/has an anxiety disorder as defined by the DSM-IV was internally inconsistent and also was inconsistent with previous oral and written statements about Student’s diagnosis. Additionally, on cross-examination, Dr. Kovach admitted that many of the treatment notes that she produced at the hearing in response to the School’s subpoena were not the original, contemporaneous treatment notes that had been subpoenaed, and that they were originally represented to be. Rather, Dr. Kovach had re-written her original notes when she received Peabody’s subpoena, reportedly because the originals were illegible and/or not written in complete sentences. (Kovach) For these reasons, I give little weight to Dr. Kovach’s testimony or notes as to whether or not Student has an anxiety disorder. I do credit testimony and writings that generally describe Student’s issues with self-confidence, self-expression, family relationships/conflicts, and academic frustration, without applying a diagnosis, and that rule out major mental illness or emotional disorder because this testimony and written material are consistent with the testimony and documents provided or authored by other witnesses and/or evaluators. There is no dispute that Student does not have a major emotional disturbance, but gets or has gotten anxious under certain circumstances, has lacked confidence in his abilities, sometimes has had difficulty expressing himself and has had arguments with family members.
3
Dr. Kemper’s report designated Student’s oral expression scaled score of 87 on the Oral and Written Language Scales (OWLS) as “below average” and the oral language composite score of 90 as “low average” Peabody evaluators state that these score are “average” according to the test manufacturer. (LaRosa, Budd) There is insufficient evidence on the record to resolve this question one way or the other, so I draw no conclusions. The difference between “low average” and “average” in the composite scores of tests administered in 2003 does not determine the outcome of this case. More relevant here are Dr. Kemper’s identification of Student’s areas of strength and weakness, which are consistent with the findings of subsequent evaluators from North Shore Children’s Hospital, Peabody and Phoebe Adams.
4
Here also, Peabody asserts that the reported scaled scores of 80-84 are “low average,” not “below average.” (Budd, LaRosa)
5
The record does not indicate what is meant by “TEAM” consultation.
6
The students had access to software for teaching and reinforcing reading, spelling and language skills.
7
Ms. Fuller resigned after the hearing in this case but before the parties’ closing arguments were due. By agreement, the record was held open for Peabody to submit a resume and affidavit from Melanie Coffin, who will be substituting for Ms. Fuller.
8
See, for example, Arlington Public Schools , BSEA No. 02-1327 (Crane, 2002)
9
The hearing took place over the summer, before Student started fourth grade. Although Student began attending Peabody’s proposed fourth grade program after the close of testimony but before the close of the record, the only evidence of how Student is doing in fourth grade is the affidavit of Ms. Coffin.
10
The outcome may have been different if Student had had weaker cognitive skills or a more severe disability.
11
I do not agree with the School’s argument that Ms. Adams tests were merely a self-serving “plaintiff’s battery” designed to paint as gloomy a picture of Student as possible. While Ms. Adams test and observation results do not warrant moving Student to Landmark because they are outweighed by other evidence of progress, they are useful for noting where Student might need additional assistance, or explaining why a particular skill may not be moving forward at the expected rate and what intervention might be helpful.
12
Parents also seek an award of costs including attorney fees; however, the BSEA lacks jurisdiction over this claim.