COMMONWEALTH OF MASSACHUSETTS
Division of Administrative Law Appeals
Bureau of Special Education Appeals
In Re: Pentucket Regional School District
BSEA#: 11-5530
DECISION
This decision is issued pursuant to the Individuals with Disabilities 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 March 29, 2011, April 11, 2011 and April 25, 2011 in Malden, MA before Hearing Officer Ann F. Scannell. Those present for all or part of the Hearing were:
Ben’s1 Mother
Ben’s Father
Karl Pulkkinen Public School Liaison, Landmark School
Sandra Nadeau Case Manager, Landmark School
Janet Brown Special Education Teacher, Pentucket RSD
Deborah Scobert Special Education Teacher, Pentucket RSD
Laura Coakley Special Education Teacher, Pentucket RSD
Julie Hauss Paraprofessional, Pentucket RSD
John Tiano Special Education Director, Pentucket RSD
Kathleen Parker School Psychologist, Pentucket RSD
Denise Torti Special Education Coordinator, Pentucket RSD
Colby Brunt Attorney, Pentucket RSD
Laurie Jordan Court Reporter
Darlene Coppola Court Reporter
Brenda Ginisi Court Reporter
The official record of the Hearing consists of documents submitted by the parents and marked as Exhibits P-cover 1, P-1 through P-64, P-66 through P-113, P-115 through P-117, the first three pages of P-118, P-118A through P-130; documents submitted by Pentucket Regional School District (‘Pentucket”) and marked as Exhibits S-1 through S-22, and approximately three days of oral testimony. In addition, the parties stipulated that the Landmark School is an appropriate program. Written closing arguments were submitted on May 23, 2011 and the record closed on that date.
INTRODUCTION
Ben is thirteen years old and lives with his parents and older sister in Groveland. His is currently finishing the 7 th grade at the Landmark School (“Landmark”). Ben first enrolled in Landmark in September of 2008. Prior to attending Landmark, Ben was a student at St. Mary of the Annunciation School in Danvers (“St. Mary’s”). Ben has never been enrolled in the Pentucket school system and has never attended public school. (Exhibit P-cover 1 and testimony of Scobert, Tiano and Ben’s mother )
When Ben was in 3 rd grade at St. Mary’s, his parents requested that Pentucket complete an evaluation. Ben’s parents subsequently withdrew their request in order to pursue a private evaluation from Boston Children’s Hospital (“Children’s”). (Exhibits P-8 and P-10 and testimony of Ben’s mother)
Ben underwent the evaluation at Children’s on November 27, 2006. The results showed that Ben possessed solid cognitive ability. He was diagnosed with a reading disability. Ben exhibited difficulty integrating multiple pieces of information when tasks were more complex. He demonstrated output difficulties, a slower rate of production, awkward and effortful grapho-motor output and weaknesses in oral and written language skills. Ben’s strengths lay in his understanding of vocabulary, his discreet language skills and his ability to attend. (Exhibit P-17)
Once the Children’s evaluation was complete, Ben’s parents contacted Pentucket to develop an IEP. Consent was forwarded to the parents for Pentucket to conduct their own evaluation. The parents provided consent and the evaluations occurred in January of 2007.2 (Exhibits P-18 and 20)
A TEAM meeting was held on March 1, 2007 and Ben was found eligible to receive special education services. An IEP was proposed from March 2, 2007 to March 1, 2008 calling for English Language Arts instruction from a special education teacher for 30 minutes per day, 5 days per week to work on decoding and fluency.3 This IEP was accepted by the parents. (Exhibit P-22 and testimony of Ben’s mother)
Ben attended Landmark’s summer program in 2007 and returned to St. Mary’s in the fall of 2007 for his fourth grade year. (Exhibits P-25 and 27 and testimony of Nadeau and Ben’s mother)
An annual TEAM meeting was held on February 27, 2008. A new IEP was proposed calling for Ben to receive reading services from the special education teacher for 30 minutes per day for 5 days per week until the end of the school year. Beginning in August of 2008, this service was to be reduced to 30 minutes per day for 1 day a week. The dates of the IEP were February 27, 2008 to February 27, 2009. The parents accepted this IEP.4 (Exhibit P-29 and testimony of Ben’s mother)
On February 26, 2009, an annual TEAM meeting was conducted. As a result of the meeting, a new IEP was proposed with dates of February 27, 2009 to February 27, 2010 calling for pull-out reading instruction for 30 minutes per day, 5 days per week. (Exhibits P-38, 40 and 42 and S-1 and testimony of Scobert and Ben’s mother)
By letter dated March 23, 2009, the parents rejected the proposed IEP. They also requested an IEP identifying Landmark as the placement. The parents further requested reimbursement for their unilateral placement of Ben at Landmark. (Exhibits P-38, 40 and 42 and S-1 and testimony of Ben’s mother)
On May 3, 2009, the parents filed a Hearing Request with the Bureau of Special Education Appeals (“BSEA”).5 A resolution meeting was held later in May and a new IEP was proposed. This IEP was dated from September 1, 2009 to February 27, 2010. The IEP reflected placement at the Bagnall School Intermediate Language Based Program. Ben was to receive special education instruction in math and language arts. He was to be included in the general education classroom for science, social studies and specials and assisted by a paraprofessional. The parents rejected this IEP and again asked for funding and reimbursement for Ben’s placement at Landmark. (Exhibits P-45, 46 and 50 and S-2 and testimony of Tiano and Ben’s mother)
In December of 2009, Pentucket proposed a three year reevaluation of Ben. The proposal was accepted by the parents. Ben underwent an academic achievement and psychological assessment in February of 2010. Pentucket staff also observed Ben at Landmark in March of 2010 and obtained teacher assessments from Landmark staff to assist in determining whether Ben remained eligible for special education services. (Exhibits P-53, 60 and 76 and S-3, 5, 6 and 7 and testimony of Tiano, Scobert, Parker and Ben’s mother)
After several scheduling issues and multiple TEAM meetings during the spring of 2010, Ben was again found eligible for special education services due to a specific learning disability. A new IEP was proposed for August 30, 2010 to April 9, 2011. (Exhibits P-82, 89, 92, 93, 94, 95 and 96 and S-4 and testimony of Tiano, Scobert, Parker, Torti, Brown, Coakley and Ben’s mother)
The proposed IEP contained goals in reading, writing, math and study skills. It called for Ben’s placement in the language based learning program in the middle school with special education instruction in reading, writing and math. Ben would be included in the general education classroom for science, social studies and other specials. No summer services were recommended. The parents rejected the IEP services and placement. Ben remained at Landmark for the 2010 to 2011 school year. (Exhibits P-107 and S-4 and testimony of Tiano and Ben’s mother)
On February 22, 2011, the parents filed a Hearing Request with the BSEA. The matter was initially scheduled for Hearing on March 29, 2011 before another Hearing Officer. A conference call was held on March 14, 2011 and the matter remained scheduled for hearing on March 29, 2011 with an additional day on April 6, 2011. On March 22, 2011 this matter was administratively reassigned to Hearing Officer Ann Scannell. A further conference call was held on March 23, 2011 and the dates for hearing were revised. The matter was scheduled for, and went forward to Hearing on, March 29, 2011, April 11, 2011 and April 25, 2011.
It is the parents’ position that the IEPs proposed by Pentucket covering the periods of February 27, 2009 to September 1, 2009; September 2, 2009 through February 27, 2010; March 1, 2010 through August 30, 2010 and August 31, 2010 through April 9, 2011 were not reasonably calculated to provide Ben with a free, appropriate public education (“FAPE”) in the least restrictive environment and that they therefore, are entitled to retroactive reimbursement of expenses they incurred for Ben’s unilateral placement at Landmark. Furthermore, it is the parents’ position that Pentucket committed procedural violations from February 18, 2009 to the present that resulted in a denial of FAPE to Ben.
It is Pentucket’s position that the aforementioned IEPs did provide Ben with a FAPE in the least restrictive environment. It is also Pentucket’s position that if any procedural violations were committed, these violations did not result in a denial of a FAPE to Ben.
ISSUES
The issues to be decided in this matter are the following:
1. Whether the IEP developed by Pentucket from February 27, 2009 through September 1, 2009 was reasonably calculated to provide Ben with a free, appropriate public education in the least restrictive environment?
2. Whether the IEP developed by Pentucket from September 2, 2009 through February 27, 2010 was reasonably calculated to provide Ben with a free, appropriate public education in the least restrictive environment?
3. Whether the IEP developed by Pentucket from August 30, 2010 through April 9, 2011 was reasonably calculated to provide Ben with a free, appropriate public education in the least restrictive environment?
4. If not, are the parents entitled to retroactive reimbursement of expenses they incurred associated with Ben’s unilateral placement at Landmark?
5. Whether Pentucket committed procedural violations between February 18, 2009 and the present that resulted in a denial of a free, appropriate public education to Ben?
FACTS
Ben is currently finishing his 5 th grade year at Landmark. Although Ben and his family reside in the Pentucket School District, Ben has never been enrolled in the district’s public schools. Prior to attending Landmark, Ben was a student at St. Mary’s in Danvers. (Exhibit P-cover 1 and testimony of Ben’s mother)
Ben is a very social, athletic and likeable boy. He is hard working and intelligent. Ben struggles with reading, written language and math. He exhibits difficulties with output and has a reduced rate of production. At various times, Ben has exhibited anxiety. He has been diagnosed with a specific learning disability in reading. (Exhibits P-cover 1, 11, 17, 22, 30, 41, 44 and testimony of Nadeau and Ben’s mother)
In November of 2006, Ben underwent a private evaluation at the Learning Disabilities Program at Children’s Hospital.6 His parents expressed concerns with Ben’s reading, language output and anxiety. They wanted to obtain a better understanding of Ben’s learning profile and the types of support that would be most helpful to him. The Children’s comprehensive evaluation included a neurological evaluation, a mathematics evaluation, a neuropsychological assessment, a speech/language evaluation, a reading and writing evaluation, and a psychological screening. (Exhibits P-17 and testimony of Ben’s mother)
As part of the neuropsychological evaluation, the Wechsler Intelligence Scale for Children (“WISC-IV”), the Rey-Osterrieth Complex Figure Test, the Children’s Memory Scales and the Behavior Rating Inventory of Executive Function were administered. Ben scored in the average range or slightly above average range on the various subtests of the WISC. His full scale I.Q. score was 107 which placed him at the 68 th percentile. On the verbal comprehension index, Ben scored at the 50 th percentile. On the perceptual reasoning index Ben scored at the 45 th percentile. On the working memory index Ben scored at the 81 st percentile and on the processing speed index Ben scored at the 79 th percentile. (Exhibit P-17)
Ben also scored in the average range on the Rey-Osterrieth Figure Test and above average on the Children’s Memory Scales. By both parent and teacher report, scores on the Behavior Rating Inventory of Executive Function revealed that Ben maintains good behavioral control and is able to rely on metacognitive thinking both at home and in school. (Exhibit P-17)
As part of the neurological evaluation, the Rapid Automatized Naming Battery and the Rapid Alternating Stimulus Naming Battery was administered to Ben. The evaluator noted that these findings were consistent with a specific reading disability and somewhat slow work pace. He recommended output accommodations for Ben including extra time to complete tasks and shortening of assignments.
To assess Ben’s math skills, the evaluator administered the Mathematic and Diagnostic Prescriptive Inventory (“MDPI”) and the math fluency and math calculation subtests of the Woodcock Johnson-III. Overall, Ben’s math skills were at age and grade appropriate levels. The evaluator was concerned with Ben’s output issues, including the tendency toward imprecision, difficulties switching between tasks and difficulties with grapho-motor output. (Exhibit P-17)
As part of the speech and language assessment, the Boston Naming Test (“BNT”), the Wide Range Assessment of Memory and Learning (“WRAML-2”), the Clinical Evaluation of Language Fundamentals (“CELF-4”),the Wechsler Individual Achievement Test (“WIAT-II”), the Qualitative Reading Inventory (“QRI-4”), the Syntactic Comprehension Test and the Auditory Analysis Test were administered. Ben’s overall scores revealed that his decoding skills were at the single word level and text levels were at the second grade instructional level. These scores placed Ben more than one year below his grade level. Ben’s story retell and comprehension indicated that his difficulty with decoding was not negatively impacting his overall comprehension of information, indicating that his primary deficit was decoding, not comprehension. The evaluator found that Ben’s performance was consistent with the characteristics of dyslexia. (Exhibit P-17)
In the writing domain, Ben’s testing revealed difficulty with spelling, capitalization and organization. His writing sample score placed him one grade level below his peers. Overall, Ben’s written expression skills were consistent with his reading skills. (Exhibit P-17)
Together, the evaluations revealed that Ben had a specific reading disability, difficulty integrating multiple pieces of information when tasks were more complex, output difficulties, a reduced rate of production and awkward and effortful grapho-motor output. Ben was also found to be prone to anxiety. Ben’s relative strengths included his solid intellectual potential, good understanding of vocabulary, good discreet language skills and good attention. (Exhibit P-17)
The Children’s evaluators recommended that Ben work with a reading specialist focusing on the development of greater fluency and automaticity while continuing to develop comprehension skills. Recommended accomodations for his reading deficits included oral testing, ensuring he understands directions, nonverbal teaching approaches for science and social studies and no penalty for spelling errors. New information should be presented in a well organized, sequential format with frequent teacher check-ins with preteaching and previewing. Timed tests and quizzes in math should be avoided. Output accommodations should include extra time to complete tasks, shortening of assignments, learning keyboarding skills and using a word processor. Other classroom accommodations included seating near the point of instruction, warnings of upcoming changes and frequent breaks. Finally, the evaluators recommended counseling support to teach Ben strategies for coping with anxiety. (Exhibit P-17)
Following the Children’s evaluation, Pentucket conducted an initial evaluation. This evaluation occurred in January of 2007 and included an educational evaluation, a speech and language evaluation and a psychoeducational evaluation. Formal testing for the educational evaluation included select subtests from the Woodcock-Johnson III Test of Achievement, the Gray Oral Reading Test (“GORT-4”), the Test of Written Language (“TOWL-3”) and informal testing included sight word assessment and the Teacher’s College Running Records. (P-20 and testimony of Ben’s mother)
On the formal testing in the areas of reading skills, written language and written expression, Ben’s scores placed him in the average range. In the area of oral reading comprehension, Ben scored in the above average range. In oral reading accuracy, Ben scored below average and in oral reading rate and fluency, Ben’s scores placed him in the poor range. On the informal testing, Ben was given a Frye word list consisting of
400 third grade words. Ben was able to accurately read 349 words the first time and 348 words the second time giving him an accuracy rating of 87%. Many of his errors consisted of the addition of suffixes, omission of a letter(s) or reversal of letter placement. Ben read at an independent level of I/J and an instructional level of K on the Teacher’s College Running Record assessment. These results placed Ben’s reading level at a late second grade instructional level. (Exhibit P-20)
The speech and language evaluator administered the Expressive Vocabulary Test (“EVT”), the CELF-4, the Test for Auditory Comprehension of Language (“TACL-3), the Language Processing Test and the Comprehensive Test of Phonological Processing (“CTOPP”). All of the testing revealed that Ben’s expressive and receptive language skills were in the average to above average range for his chronological age. The evaluator noted that Ben’s expressive language skills appeared to benefit from models, clear expectations and structure, and his written language would likely benefit from the use of outlines, webs, maps and checklists. (Exhibit P-20)
As part of the psychoeducational assessment Ben was administered he WRAML-2. Ben’s ability to process and recall information visually fell in the average range. His scores also fell within the average range on the verbal memory scale. Testing also showed that Ben greatly benefited from repetition and repeated exposure when learning new information. On the attention and concentration subtests, Ben scored in the superior range. He experienced the most difficulty on the sound symbol subtest, which required him to remember random sounds that were associated with various abstract figures. The evaluator reported that performance on this task can be indicative of difficulty in fluency and decoding skills. (Exhibit P-20)
Overall, the Pentucket evaluation results revealed that Ben had difficulty with automatic retrieval of sound-symbol associations when pulling together individual sounds or symbols when decoding words. Ben appeared to benefit when both visual and auditory information was presented to him in small chunks and in a sequential and meaningful context. He also benefited when information was repeated and he had time to rehearse and encode the new material.
The evaluator listed several recommendations that would be helpful to Ben. These included meta-cognitive strategies while reading to help him self-monitor while decoding, the use of visual and manipulative aids when presenting new information, previewing, the use of models and demonstrations and visual framing of important information. To help with written output, the evaluator suggested that Ben use a planning sheet or a tape recorder, use graphic organizers and use webs and outlines. Finally, the evaluator suggested that the teacher provide Ben with sentence starters, have Ben participate in cooperative writing and break writing assignments into steps. (Exhibit P-20)
A TEAM meeting was held on March 1, 2007 and Ben was found eligible for special education services due to a specific learning disability in basic reading skills. An IEP was proposed calling for 30 minutes per day, 5 days per week of English language arts instruction with a special education teacher.7 The IEP services and placement were accepted by the parents. (Exhibit P-21 and 22 and testimony of Ben’s mother)
The reading services were provided by special educator Gina Post. In June of 2007, Ms. Post reported that Ben was making progress. He was reading at an independent level “I” in January 2007 and had progressed to reading at an independent level “K” by the end of June 2007. (Exhibit P-23 and 24)
Ben, then an ascending 4 th grader, attended the Landmark summer program for the summer of 2007. Landmark conducted limited testing of Ben including the word identification and word attack subtests of the Woodcock Reading Mastery and the GORT. By August, Ben’s word identification and word attack scores had increased, placing him at the 3.9 grade level for word identification and the 5.5 grade level for word attack in. His GORT scores slightly decreased to a 2.2 grade equivalent for rate, a 1.7 grade equivalent for accuracy and a 1.7 grade equivalent for fluency. (Exhibit P-25 and testimony of Nadeau)
The TEAM held an annual review meeting on February 27, 2008. A new IEP was proposed. It called for 30 minutes per day of English Language arts instruction with a special educator for 5 days per week until the end of the school. This instruction was to be reduced to 30 minutes per day for one day per week at the beginning of the next school year, Ben’s 5 th grade year. Pentucket alleges that the parents requested this reduction and the parents disagree, claiming it was instituted by Pentucket. In any event, the parents accepted these IEP services and placement. (Exhibit P-29 and testimony of Scobert and Ben’s mother)
A progress note from Ms. Post, dated March 11, 2008, nearing the end of Ben’s 4 th grade year, revealed that Ben was reading at an instructional level of “R” and was making great progress with his reading. As of June 2008, Ms. Post reported that Ben had made tremendous progress over the year, using strategies to consistently decode words with vowel teams, diphthongs and consonant blends as well as multisyllabic words. Ben was reading at an instructional level of “S”, which is the end of 4 th grade to the beginning of 5 th grade. Ben was continuing to omit word endings in writing.8 (Exhibit P-28 and 31)
Ben returned to the Landmark summer program for the summer of 2008. The same subtests of the Woodcock Reading Mastery Test and the GORT were again administered to Ben. His scores showed overall improvement. (Exhibit P-34)
At the parent’s request a meeting was held with Pentucket on September 10, 2008. An amendment to the IEP was developed. This amendment reflected additional information about Ben, including his enrollment at Landmark and his scores from the Landmark testing completed in August 2008. The parents rejected this amendment.9 (Exhibits P-35, 36, 37 and 38 and testimony of Scobert and Ben’s mother)
In November and December of 2008, Ben underwent a private evaluation with Elaine Holden, Ed.D of The Reading Foundation. The following tests were administered: the Comprehensive Assessment of Spoken Language (“CASL”), the Lindamood Auditory Conceptualization test (“LAC-3”), the Rapid Automatic Naming/Rapid Alternating Stimulus Test, the Controlled Oral Word Association Test, the TOWRE, the Test of Contextual Reading Fluency, the Test of Irregular Word Reading Efficiency, the Word Identification and Spelling Test, the Woodcock Reading Mastery Tests, the Test of Reading Comprehension (“TORC-4”), the GORT-4, the Reading Fluency Indicator, the Critical Reading Inventory and the Test of Written Language (“TEWL-4”).10 (Exhibit P-45A)
Overall, Ben’s scores revealed that he was devoting much of his cognitive resources to lower level, more mechanical tasks for both reading and writing. Many of his scores on this battery of tests fell in the average to above average range. There were some scores that fell in the below average range. On the TOWRE, Ben’s score for total word reading efficiency fell in the below average range. Whereas Ben did not exhibit great difficulty with his sight word efficiency, he had great difficulty with his phonemic decoding efficiency.11 Dr. Holden noted that since both decoding and sight words are present in reading, Ben required daily instruction to allow him to become automatic with his decoding. (Exhibit P-45A)
On the TORC-4, Ben’s scores were well below average on the sentence completion, paragraph construction and text comprehension subtests. Ben’s scores on the reading comprehension index fell in the poor range. Dr. Holden reported that, at the sentence level, Ben could not identify which words would complete a sentence so that it was semantically and syntactically complete and meaningful. Ben was also unsuccessful in his attempts at ordering sentences into an organized paragraph on the paragraph construction subtest. Ben was also unable to comprehend paragraphs on the text comprehension subtest, even though the subtest was untimed. Dr. Holden opined that Ben was unable to do so because he was utilizing too much memory for lower level decoding tasks, leaving him with insufficient functional memory to comprehend due to his deficient automaticity in word decoding. (Exhibit P-45A)
Ben scored in the below average range on the fluency and rate scores on the GORT-4. Ben’s accuracy score placed him in the low average range and his comprehension score was solidly in the average range. Dr. Holden noted that, pursuant to protocol, she was able to read the questions and possible answers to Ben and also correct Ben’s coding errors as he was reading which may have impacted Ben’s comprehension score. (Exhibit P-45A)
In administering the Reading Fluency Indicator, Dr. Holden concluded that Ben was able to read a 4 th grade level list of words well enough to measure his fluency at the 4 th grade level. When she factored in correctly read words per minute, however, Ben fell solidly in the 2 nd grade range of performance. Ben was also performing well below grade level for text-based questions, inferential and critical questions, and narrative and information passages. This was evidenced in Ben’s results from the Critical Reading Inventory. (Exhibit P-45A)
Ben’s results on the TOWL-4 revealed that there were significant gaps in his writing.
Ben scored in the below average range on the spelling, punctuation, vocabulary and sentence combining subtests. Ben’s total overall writing score for both age and grade was statistically and clinically significant. Dr. Holden reported that Ben did a poor job in creating an outline and that he did not know how to plan a story or how to organize pre-writing. She noted that this was an area where Ben required significant work. (Exhibit S-45A)
Dr. Holden made several recommendations. These recommendations included continuing with the LiPS program to become more automatic in processing letter sounds, reading instruction using an Orton-Gillingham approach, training in structural analysis and coding practice daily using the Orton-Gillingham approach. Dr. Holden further recommended that Ben utilize an auditory processing program such as Earobics, and receive direct instruction in written expression using an Orton-Gillingham program or Project Read or Story Grammar Marker. (Exhibit P-45A)
Landmark generated a report on Ben’s progress in January of 2009. Ben was in the middle of 5 th grade at Landmark at the time of this report. Andrew Gruden, Ben’s tutor, reported that Ben had recently increased his goal from reading 120 words correct per minute to 130 words correct per minute. Ben was able to reach this goal after reading a passage from level 3.5 books an average of six times. Ben was using the Lindamood Bell Ending Grid for spelling and encoding. (Exhibit S-10)
Ben’s Language Arts teacher, Sarah Ayres, reported that Ben was able to write a detailed two sentence introductory paragraph. Ben benefitted from teacher cueing, review and reminders to proofread his work. (Exhibit S-10)
Ben’s math teacher, Carrie Wood, reported that Ben had learned to add and subtract fractions and mixed numbers with unlike denominators. He was helped with the use of written notes in the form of a process paragraph to use as a reference and to practice each solution process. She noted that consistent rehearsal helped Ben to internalize these processes. (Exhibit S-10)
Ben’s oral expression and literature teacher, Sarah Ayres, reported that Ben could deliver presentations, complete a research project and participate in class discussions. Ben was helped with the use of templates and teacher guidance. (Exhibit S-10)
On February 26, 2009, the TEAM convened for Ben’s annual review meeting. An IEP was proposed from February 27, 2009 to February 27, 2010. The IEP only contained one goal, an English Language Arts goal. It stated that “Ben will demonstrate fluency and comprehension of instructional level material beyond his current performance level.” Ben would receive reading instruction by the special education teacher for 30 minutes per day, 5 times per week. (Exhibits P-38, 40 and 42 and S-1)
On March 23, 2009, the parents rejected the proposed IEP services and placement. By the same letter, the parents also requested that Pentucket write an IEP identifying Landmark as the appropriate placement for Ben and reimburse them for all costs associated with tuition and transportation for Landmark. On that same date, Pentucket declined the parents’ request to fund Ben’s placement at Landmark. (Exhibits P-42 and testimony of Ben’s mother and Scobert)
On or about May 3, 2009, the parents filed a Hearing Request with the BSEA. A resolution meeting was held on May 20, 2009. There the parents discussed Pentucket’s Language Based program at the Bagnell Elementary School and the parents were invited to observe the program. On May 27, 2009, Ben’s parents observed the program. (Exhibits P-45, 46 and 47 and testimony of Ben’s mother and Scobert)
On June 18, 2009, Pentucket proposed an IEP calling for Ben’s placement in the Language Based program at the Bagnell School. This IEP had effective dates of September 1, 2009 to February 27, 2010, and contained a goal in English Language Arts and one in math. The English Language Arts goal was the same as the English Language Arts goal on the prior IEP. The math goal stated that Ben would understand numbers, ways of representing numbers, relationships among numbers and number systems. Ben would receive math instruction by the special education teacher for 60 minutes per day, 5 days per week and language arts instruction for 90 minutes per day, 5 days per week. Ben would attend social studies and science in the general education classroom with support from a paraprofessional. The proposed IEP services and placement were rejected by the parents. (Exhibits P-50 and S-2 and testimony of Ben’s mother and Scobert)
In October of 2009, Ben underwent a reevaluation with Dr. Holden. Dr. Holden administered the CASL, the Ran/RAS, the Torc-4, the GORT-4, the TOWL-4 and the Reading Fluency Indicator. On the CASL, Ben scored in the below average range on the ambiguous sentences subtest. Ben’s scores on the RAN/RAS test improved on some subtests and remained about the same on other subtests. (Exhibit P-52)
Overall, Ben’s scores improved on the TORC-4.12 Dr. Holden noted that while Ben’s scores placed him in the below average range, he was making steady growth in closing the gap. In Dr. Holden’s opinion, Ben had benefitted from the instructional methodologies and programming he had been receiving. Consequently, she strongly suggested that this programming not be changed. Dr. Holden opined that Ben would make gains in further closing his reading gap by continuing the same programming. (Exhibit P-52)
Ben’s scores on the GORT-4 all decreased but for a very slight increase in his rate score (the 9 th percentile from the 5 th percentile). She noted that Ben had a serious reading gap to close and it would require significant instructional time to achieve this goal. (Exhibit P-52)
The Reading Fluency Indicator revealed that Ben was able to read comfortably at the 4 th grade level with respect to word decoding and comprehension. His oral reading level of 94 words correct per minute placed him at the 3 rd grade level of performance. (Exhibit P-52)
On the TOWL-4, Ben’s scores indicated that he had maintained his skills in punctuation, capitalization and sentence processing, and improved greatly in paragraph writing. Moreover, his spelling and sentence structure scores were improved. Dr. Holden added that Ben’s writing style had also shown strong improvement. (Exhibit P-52)
Dr. Holden’s recommendations were essentially a continuation of her prior year’s recommendations. She added the recommendation that Ben would benefit from the use of a Kurzweil Reading Pen. This device would allow him to receive the pronunciation and definition of any word that he scans. (Exhibit P-52)
The October 2009 student progress report from Landmark revealed that Ben was working on fluency, comprehension and spelling using level 5.0 books from the Read Naturally program. Ben’s language arts instructor reported that Ben benefitted from teacher prompting to be more descriptive when he composed sentences. She further reported that, with the use of a rubric of writing elements, Ben had recently begun to proof read assignments before turning them in. (Exhibit S-12)
In January of 2010, Ben’s tutor, Mr. Gruden, reported that Ben had moved up to level 5.6 of the Read Naturally program. Within an average of four to six reads, Ben was able to read 270 words correct within two minutes. Ben had mastered 25 new Frye sight words since the fall. (Exhibits P-59 and S-12)
Pentucket conducted a three year reevaluation of Ben in February of 2010. Ben underwent an academic achievement assessment and a psychoeducational assessment.
The tests administered for the academic achievement assessment were the Wechsler Individual Achievement Test (“WIAT-II”), the GORT-4, the TOWRE and the CTOPP. (Exhibits P-60 and S-6)
Ben scored in the average range on the reading subtests of the WIAT-II. Some subtest scores were slightly below grade level and other subtest scores were above grade level. On the writing subtests, he scored in the average range. Ben’s oral language subtests scores on the WIAT-II were above average to very superior and his scores on the math subtests were in the average to above average range.(Exhibits P-60 and S-6)
Supplemental test scores unreported in Pentucket’s evaluation report placed Ben far below average to below average on the target words and reading speed subtest of the WIAT-II. His unreported word fluency score on the word fluency subtest of the WIAT-II also placed him in the far below average to below average range. (Exhibit P-124)
On the GORT-4, Ben’s scores had improved from the October 2009 testing completed by Dr. Holden. His rate, accuracy and fluency scores still placed Ben below grade level but he was only 1.2 grade levels or less below. (Exhibits P-60 and S-6)
Ben’s scores on the CTOPP fell in the average to superior range. His lowest score occurred on the blending words subtest placing him at the 25 th percentile and significantly below grade level. Ben’s scores on the rapid digit naming and rapid color naming placed him slightly below grade level. (Exhibits P-60 and S-6)
Ben scored in the average range on the TOWRE test. In both the sight word efficiency subtest and the phonemic decoding efficiency subtest, however, Ben’s scores placed him one to two grade levels below his actual grade. (Exhibits P-60 and S-6)
Kathleen Parker, Pentucket’s school psychologist, conducted a psychoeducational assessment of Ben. She administered the WISC-IV and the WRAML-2. Ben scored in the high average range on the verbal comprehension and perceptual reasoning indices of the WISC-IV. Ben scored in the superior range on the working memory index and the average range on the processing speed index. His overall I.Q. score was 119, falling in the high average range. (Exhibits P-60 and S-7)
Ben’s scores on the WRAML fell within the average to above average range. His verbal memory index score and visual memory index score fell within the average range, while his attention/concentration index score fell within the superior range. Ms. Parker noted that the testing revealed that Ben demonstrated average skills on subtests measuring his ability to encode, retain and recall auditory information. The results further revealed that Ben benefitted from repetition and rehearsal to assist him with retention and recall of more lengthy auditory information. Ben appeared to have more success when new learning was paired with visual aides and demonstrations. (Exhibits P-60 and S-7)
As part of Ms. Parker’s evaluation, she observed Ben at Landmark. Ms. Parker reported that Ben was an active participant in class. He used appropriate vocabulary, word order, articulation, and grammar when responding verbally in class. In tutorial class, on a re-read of the text, Ben showed improvement in his number of errors, time to read the text, expression and intonation. In math class, Ms. Parker observed Ben volunteer and write the correct math equation. In all classes she observed, Ms. Parker reported that Ben actively participated and successfully sustained his attention. (Exhibits P-63 and S-8 and testimony of Parker)
A TEAM meeting to determine eligibility was held on March 1, 2010. Pentucket requested an extended evaluation to include an observation of Ben at Landmark and completion of Educational Assessment-Forms from Ben’s teachers. Pentucket based its request on Ben’s recent testing which indicated that Ben was academically performing in the average range. Pentucket requested six additional weeks to conduct the extended evaluation. The parents agreed to an observation but indicated by letter that their consent was not to be construed as consent for an extended evaluation because the district did not comply with the legal requirements of 603 CMR 28.04(2)(a). (Exhibits P-62, 64 and 76 and S-3 and testimony of Tiano and Ben’s mother)
On March 8, 2010, John Tiano, Pentucket’s Special Education Director, conducted an observation of Ben at Landmark. Mr. Tiano observed Ben during his 1:1 tutorial, his language arts class and his science class. Mr. Tiano noted that Ben was able to spell the multisyllabic words he was presented in tutorial, such as “scientist” and “government” and could appropriately use them in a sentence. On a timed passage, Ben struggled with word endings and sounding out multisyllabic proper names. He initially made eleven mistakes while reading the story. After the teacher read Ben the story and Ben reread the story, his number of mistakes dropped to four and his time was twenty-four seconds faster. (Exhibits P-73 and S-9)
In the language arts class, the students wrote an essay and Mr. Tiano noted that Ben’s essay was neat and organized. It made sense but was much shorter than his classmates’ essays. (Exhibits P-73 and S-9)
In addition to observing Ben at Landmark, Pentucket secured teacher assessment forms from some of Ben’s Landmark teachers. These forms were completed in mid-March by Ben’s tutor, his language arts teacher and his social studies teacher. (Exhibits P-76 and S-5)
Ben’s tutor, Andrew Gruden, reported that Ben had ongoing difficulty with reading fluency and decoding. He had difficulty with capitalization, punctuation and verb tense. Ben struggled to proof read independently. His comprehension grew weaker with longer sentences and complex vocabulary. Ben needed clear, concise directions and benefitted from multiple examples. Ben had difficulty retrieving more complex information and would forget skills if not revisited frequently. Ben struggled with anxiety, although his anxiety level had diminished greatly during his time at Landmark. Mr. Gruden reported that Ben benefitted from the use of worksheet designs that emphasized clarity, repetition and routine, use of visual examples and kinesthetic demonstrations with oral examples of procedures, use of graphic organizers and templates for written production, use of a proofreading checklist and consistent review of previously learned skills. (Exhibits P-76 and S-5)
Ben’s language arts teacher, Merideth Duca, reported that Ben was able to write a four paragraph personal narrative following a template with minimal teacher support and a four to five paragraph narrative/expository essay given teacher provided prompts. Ben required collaborative brainstorming and prewriting to formulate and organize his ideas. He also needed teacher support for proofreading for mechanics. Ben needed additional time to process when forming sentences and needed clear directions. Ben also needed teacher cuing for word retrieval, memories and patterns. (Exhibits P-76 and S-5)
Ben’s social studies teacher, Bruce Miller, reported that Ben continued to struggle at times with decoding, but his comprehension was excellent. Ben got confused with multi step directions and overwhelmed with fast paced verbal presentations, particularly when more than one person was speaking. Ben sometimes needed cuing to recall specific facts and vocabulary. Mr. Miller further reported that Ben thrived on structure and routine. (Exhibits P-76 and S-5)
Pentucket also received a copy of Ben’s March 2010 progress report from Landmark. This report outlined Ben’s current performance levels in each of his classes. His progress reports in social studies and language arts parroted the progress reported in the teacher assessment forms. Additionally, Ben’s tutor reported that Ben was reading an average of 174 words correct per two minutes on an initial read of a level 5.6 passage from the Read Naturally program. This number increased to 270 words correct per two minutes after the teacher read the passage, decoded difficult words in isolation and after Ben completed three to four practice reads. Ben was writing two to three sentence summaries and could, with teacher cuing, syllabicate and read multi syllable words. (Exhibit P-93 and S-14)
In math class, Ben’s teacher reported that Ben was able to solve linear equations and graph points and coordinates. During collaborative exercises, Ben could describe and compare data sets. (Exhibits P-93 and S-15)
In science, Ben was able to identify the main idea and details of written passages with teacher guidance and complete lab reports. Ben was assisted by the use of templates and teacher guidance. (Exhibits P-93 and S-15)
In literature class, Ben was able to contribute to class discussion and analyze and define vocabulary from the literature. Ben’s production increased with the use of templates, oral rehearsal and teacher cueing. (Exhibits P-93 and S-15)
On April 9, 2010, the TEAM reconvened. They reviewed John Tiano’s observation of Ben at Landmark and the classroom performances forms completed by Ben’s teachers. The parents presented a slide show and a tape of Ben’s reading. There was some disagreement about whether or not the TEAM had enough time make an eligibility determination. The meeting ended without the TEAM determining Ben’s eligibility. (Exhibit P-82, 83 and 84 and testimony of Tiano, Coakley, Torti, Scobert, Parker, Brown and Ben’s mother)
The meeting was scheduled to reconvene on May 6, 2010 but due to a scheduling conflict the TEAM meeting did not reconvene until May 20, 2010. The TEAM then determined that Ben continued to be eligible for special education services. The TEAM discussed the Language Based program at the middle school. The parents observed the program on May 26, 27 and 28, 2010. (Exhibits P-89, 90, 92, 94, 95 and 100 and testimony of Tiano, Scobert, Brown, Coakley, Torti and Ben’s mother)
On June 2, 2010, Pentucket proposed a new IEP with effective dates from August 30, 2010 to April 9, 2011. This IEP contained goals in writing, math, study skills and several goals in reading. The reading goals targeted Ben’s weaknesses and difficulties in decoding and encoding, fluency and comprehension. Several accommodations were proposed on PLEP A to address Ben’s needs. (Exhibits P-107 and S-4)
The proposed special education services would be delivered in the Language Based program at the middle school. Ben would receive academic support from the special education teacher for 40 minutes per day, 55 minutes per day of English instruction from the special education teacher, 55 minutes per day of math instruction from the special education teacher and 45 minutes per day of reading instruction from the special education teacher. All of these services would be provided on a 4 day cycle. Ben would also receive support from the special education teacher during his inclusion science class and support from a paraprofessional during his inclusion social studies class. On July 7, 2010, the parents partially rejected the proposed IEP and refused the placement.
(Exhibits P-107 and S-4 and testimony of Tiano, Coakley and Ben’s mother)
Ben remained enrolled at Landmark for the 2010 to 2011 school year. His parents requested that Pentucket fund Ben’s placement at Landmark and write an IEP for Ben’s continued enrollment at Landmark. (Exhibits P-107 and S-4 and testimony of Ben’s mother)
DISCUSSION
It is not disputed that Ben is an individual with a disability falling within the purview of the federal Individuals with Disabilities Act (“IDEA”), 20 USC 1400 et seq. and the Massachusetts special education statute, MGL c. 71B. 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.”13 FAPE must be provided in the least restrictive environment. Least restrictive environment means that, “to the maximum extent appropriate, children with disabilities are educated with children who are not disabled, and special classes, separate schooling or other removal of children with disabilities from the regular education environment occurs only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.”14
Ben’s right to a FAPE is assured through the development and implementation of an individualized education program (“IEP”).15 An IEP must be custom-tailored to address Ben’s “unique” educational needs in a way reasonably calculated to enable Ben to receive educational benefits.16
In order to receive a FAPE, Ben must be offered with special education and related services that are “reasonably calculated to enable him to receive educational benefits.”17 Ben is not entitled to the maximum educational benefit possible.18 Similarly, the educational services need not be, “the only appropriate choice, or the choice of certain selected experts, or the child’s parents’ first choice, or even the best choice.”19 The IDEA further requires that special education and related services be designed to result in progress that is “effective.”20 Further, a student’s level of progress must be judged with respect to the educational potential of the child.21
Massachusetts special education regulations provide that specially designed instruction and related services described within the IEP must be sufficient to “enable the student to progress effectively in the content areas of the general curriculum.”22 Massachusetts also requires that the special education services be designed to develop a student’s educational potential.23
An IEP is a snapshot. Therefore, 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.24 The critical inquiry is whether a proposed IEP is adequate and appropriate for a particular child at a given point in time.25 This standard does not preclude the admission of evidence acquired after the creation of the IEP, but this evidence should only be used to evaluate the reasonableness of a school district’s decisions at the time they were made.26 This evidence may include, for example, a student’s subsequent educational progress.27
If a school district fails in its obligation to provide a FAPE to a student with a disability, parents may enroll their children in a private school and seek reimbursement for the cost of the private school.28 Reimbursement is a matter of equitable relief, with the decision-maker having the responsibility to consider, among other things, the reasonableness of the parties’ positions.29
In the instant dispute, the parents have the burden of persuasion to show that Pentucket’s proposed IEPs from February 2009 to September 2009, September 2009 to February 2010, and August 2010 to April 2011 were not appropriate.30 These IEPs must be evaluated as of the time they were proposed.31
The February 2009 to September 2009 IEP
After a careful review of the record, I find that the IEP developed by Pentucket for the period of March 2009 to September 2009 was not reasonably calculated to provide Ben with a FAPE in the least restrictive environment. At the time this IEP was proposed, Pentucket had a significant amount of available information that identified Ben’s weaknesses and educational needs. Whereas Ben had never been enrolled in the Pentucket District or any other public school program, Ben’s parents provided Pentucket with the extensive evaluation conducted by Children’s in November of 2006.
This evaluation revealed that Ben had a specific reading disability. His performance was consistent with the characteristics of dyslexia. Ben’s decoding skills at that time were more than a grade below his actual grade.
The report also addressed Ben’s weaknesses in processing and difficulties with output, including his tendency toward imprecision, difficulties switching between tasks and difficulties with graphomotor output. Further, Ben’s writing sample scored one year below grade level and he exhibited difficulty with spelling, capitalization and organization. The Children’s evaluators recommended a reading and writing program and support and accommodations to address his difficulties with complexity and output.
At the time this March 2009 IEP was proposed, Pentucket also had information available from their own evaluation of Ben. Pentucket’s January 2007 evaluation of Ben revealed that Ben was below average in oral reading accuracy and very below average in oral reading rate and oral reading fluency. Much like the Children’s testing, Pentucket’s testing revealed that Ben was at least one grade level behind in reading. It also revealed that Ben was continuing to have difficulty with automatic retrieval of sound-symbol associations when pulling together individual sounds or symbols when decoding words. Ben scored in the low average range on the contextual conventions subtest and the story construction subtest of the Test of Written Language. Ben took no time to plan, organize or think about his story. Ms. Parker made several recommendations to assist Ben with his written output. It is apparent from Pentucket’s testing that they were also aware of Ben’s written expression needs.
Pentucket also had progress reports from Pentucket’s special education teacher Gina Post, who provided services to Ben from March 2007 to June of 2008, progress reports from Landmark’s 2007 and 2008 summer program and progress reports from Landmark for part of Ben’s 5 th grade year. The Landmark reports clearly identified Ben’s needs in written expression, output and processing; and not just his difficulties with reading comprehension and fluency.
Despite this considerable information which revealed that Ben was performing below grade level both in reading and writing, and exhibiting slow processing, Pentucket proposed an IEP that provided minimal special education services (reading instruction for 30 minutes per day, 5 days per week). Pentucket argues that they were only required to provide Ben with “equitable services” because he was not enrolled in the Pentucket district but was a privately placed private school student.32 Pentucket is correct that federal law only requires that a district provide “equitable services” to a privately placed private school student. Massachusetts special education law, however, imposes a higher standard.
Massachusetts requires a school district to provide “special education designed to meet the needs of eligible students who are attending private schools at private expense and whose parents reside in the jurisdiction of the school district.”33 Furthermore, “Special education provided by the school district to a private school student shall be comparable in quality, scope and opportunity for participation to that provided to public school students with needs of equal importance.”34 Accordingly, Pentucket was required to propose an IEP for Ben that fully identified his needs and described appropriate services that would be provided to meet those needs.
The February 2009 to September 2009 IEP proposed by Pentucket did not identify all of Ben’s needs, and therefore, did not propose services that would address the totality of Ben’s needs. The IEP only identified reading needs. It did not identify Ben’s written expression needs, his slow processing or his output deficits and did not offer any services or accommodations to address these needs. By failing to address all of Ben’s needs, this proposed IEP was not reasonably calculated to provide him with a FAPE in the least restrictive environment.
Having found that the February 2009 to September 2009 IEP was not appropriate, I now turn to the question of reimbursement for the parents’ costs for placing Ben at Landmark. First as noted supra , the parties stipulated that Landmark is an appropriate program for Ben. As reimbursement is an equitable remedy, it may be limited if the parents did not comply with the notice provisions pursuant to 20 USC 1412(a)(10)(C)(iii). In the instant matter, Ben’s parents initially provided written notice to Pentucket requesting funding from Pentucket for Ben’s placement at Landmark by letter dated March 23, 2009. I find, therefore, that the parents are entitled to tuition and transportation expenses for Ben’s placement at Landmark for the period of April 2,
2009 to September 1, 2009, the end of the IEP period.
The September 2009 to February 2010 IEP
At the time Pentucket proposed the September 2010 IEP to February 2010 IEP, Pentucket had additional information available to assist them in developing Ben’s IEP. When this IEP was proposed in May of 2009, Pentucket had the results of an extensive evaluation that Ben had undergone with Dr. Holden (in October of 2008) and additional progress notes from Landmark.
This IEP proposed by Pentucket was much more extensive than the prior IEP. It called for direct special education services in math for 60 minutes per day and in language arts for 90 minutes per day. These services would be provided in the Language Based program at the Bagnell Elementary School. In addition, Ben would be supported by a paraprofessional in inclusion social studies class and inclusion science class.
The IEP goals and benchmarks, however, were vague and ambiguous. The English Language Arts goal was the same as in the previous IEP. Further, the measurable annual goal simply stated that Ben would demonstrate fluency and comprehension “beyond his current performance level” without any indication of his current performance level even though this information was readily available to Pentucket.
The math goal was extremely vague and general. It stated that Ben would understand numbers, ways of representing numbers and relationships with numbers and number systems. Additionally, Ben’s current performance level indicated that he could independently read and write numbers to the billions place, yet the benchmark stated that Ben would be able to independently read, write, identify and form numbers to the thousandths place.
Moreover, the proposed IEP contained no written expression goals, a significant area of need for Ben given his prior testing, as well as, the additional testing completed by Dr. Holden.35
Whereas Janet Brown, Pentucket’s 6 th grade Language Based program special education teacher, testified about the proposed program, including the reading program and the writers’ workshop, the proposed IEP did not contain specific and measurable goals in reading and language arts and contained no goals in writing. The parents should be able to rely on the contents of the IEP in order to make an informed determination as to whether to accept or reject the proposed program. Furthermore, special education law requires a school district to develop an IEP that contains measurable goals and addresses all areas of need. The proposed IEP was lacking in this regard.36
The parents have met their burden to show that the September 2009 to February 2010 was not reasonably calculated to provide Ben with a FAPE in the least restrictive environment. Therefore, given that the appropriateness of Landmark has been stipulated to, I find that the parents are entitled to reimbursement for tuition and transportation expenses for Landmark from September 2009 to February 2010.
Following the expiration of the September 2009 to February 2010 IEP, a new IEP was not developed for Ben until June of 2010. A three year reevaluation had been performed in January 2010, however, between March 2010 to June 2010, the TEAM was trying to determine whether Ben was still eligible for special education services. (The effective dates of this new IEP were from August 30, 2010 to April 9, 2011).
Pentucket alleges that because their reevaluation revealed that Ben was performing in the average to above average range across the board, Pentucket needed to conduct an extended evaluation to help determine eligibility. Pentucket needed six weeks to observe Ben at Landmark and obtain teacher assessment forms from Ben’s teachers at Landmark. Furthermore, due to the parents delay, the TEAM was unable to make a determination of eligibility during the March 1 and April 9, 2010 TEAM meetings. The parents allege that Pentucket had enough available information to make an eligibility determination and that Pentucket was just delaying the process.
After a careful review of the testimony, I find that Pentucket had sufficient information to make a determination that Ben was still eligible for special education services as of the March 1, 2010 TEAM meeting and a new IEP could have been developed at the time. Since Pentucket offered no IEP from March to June, I find that the parents are entitled to be reimbursed for tuition and transportation expenses for Ben’s placement at Landmark through the end of the 2010 school year.
The August 2010 to April 2011 IEP
The August 2010 to April 2011 IEP proposed by Pentucket again called for Ben’s placement in a language based program but now at the middle school Language Based program. I find that this proposed IEP, unlike its predecessor, addressed Ben’s needs and contained goals and accommodations that were reasonably calculated to provide him with a FAPE in the least restrictive environment.
This IEP contained measurable goals in all Ben’s areas of need, including decoding, encoding, fluency, comprehension, written language and study skills. The benchmarks were more specific and detailed. Moreover, the IEP contained additional accommodations on PLEP A. Overall, the proposed IEP allowed the parents to make
an informed decision with respect to accepting or rejecting the proposed program and services.
In addition, Laura Coakley, the middle school special education teacher, testified extensively about the middle school Language Based program. I found Ms. Coakley’s testimony compelling. Her description of the elements of the program and how the instruction and support would appropriately address Ben’s needs was persuasive and convincing.
The parents have the burden to show that the proposed IEP was not appropriate. The parents reliance on Ben’s progress at Landmark to support their allegation that the proposed IEP was inappropriate was misplaced. Although the evidence shows that Ben was making some progress at Landmark, such evidence does not impact the appropriateness of Pentucket’s proposed IEP and program nor is it probative with respect to whether or not such would not also allow Ben to make effective progress.
The parents observed the middle school Language Based program and did not feel that it was appropriate for their son. The parents, however, are not reading specialists or educators and thus do not have the expertise to properly assess the appropriateness of the program. No expert on behalf of the parents observed the middle school program. Dr. Holden evaluated Ben but never observed the program. Specialists at Children’s evaluated Ben but never observed the program. The only testimony about the program was from the Pentucket staff who wholeheartedly testified that, based on Ben’s profile, he would make effective progress in the program. There was no expert testimony to the contrary.
The parents also rely on Dr. Holden’s report of her evaluation of Ben in 2008 and her reevaluation of Ben in 2009 to support their argument that the IEP proposed by Pentucket was inappropriate. Dr. Holden’s report seemingly indicates that Ben should continue receiving the same services he had been receiving in order for him to continue to make progress. Since Dr. Holden did not testify, she could not be questioned in this regard, nor could she be cross-examined. Further, since Dr. Holden never observed the program or reviewed the proposed IEP, I can assign no weight to any opinion she may have enumerated in her report regarding placement in a specific program.
Additionally, in keeping with the least restrictive environment mandate, the proposed IEP provides Ben with opportunities to participate in regular education classes and extracurricular activities with his typical peers.
The parents have failed to meet their burden to show that the IEP proposed by Pentucket was not reasonably calculated to provide Ben with a FAPE in the least restrictive environment. Accordingly, the parents are not entitled to reimbursement for their costs associated with Ben’s placement at Landmark from August 30, 2010 to April 9, 2011.
Alleged Procedural Violations
A school district that violates a student’s procedural rights under federal or state law may be liable where “procedural inadequacies [have] compromised the pupil’s right to an appropriate education….or caused a deprivation of educational benefits.”37 A Hearing Officer may also find that a denial of a FAPE has occurred if a school district has significantly impeded the parent(s)’ opportunity to participate in the decision making process regarding the provision of a FAPE to the parent(s)’ child.38 In viewing the evidence in this matter, I find that any procedural violations committed by Pentucket were de minimus, and that they did not result in any denial of a FAPE to Ben.
ORDER
Having found that the IEPs from February 27, 2009 to February 27, 2010 were not reasonably calculated to provide Ben with a FAPE in the least restrictive environment, I order that Pentucket reimburse the parents for tuition and transportation costs for Ben’s placement at Landmark from April 2, 2009 to February 27, 2010. I further order Pentucket to reimburse the parents for tuition and transportation costs for Ben’s placement at Landmark from February 28, 2010 to the end of the 2010 school year for failing to provide Ben with an IEP during that period.
I find that Pentucket’s IEP for the period August 2010 to April 2011 offered Ben a FAPE in the least restrictive environment and as such Pentucket is not required to reimburse the parents for costs incurred as a result of Ben’s placement at Landmark for this period.
So Ordered by the Hearing Officer,
____________________________
Ann F. Scannell
Dated: June 17, 2011
1
Ben is a pseudonym used for confidentiality and classification purposes in publicly available documents.
2
At that same time, the parents sent an application to Landmark for Ben to attend their 2007 summer program. (Exhibit P-19)
3
Ben was to be transported by his parents to the Bagnell Elementary School in the Pentucket District daily to receive these services. Ben was attending St. Mary’s.
4
Ben attended Landmark’s summer program for 2008 and began at Landmark as a 5 th grader in September of 2008.
5
The Hearing Request was subsequently withdrawn. (Testimony of Ben’s mother)
6
As indicated in the Introduction, Ben’s parents had requested an initial evaluation from Pentucket on September 18, 2006 but withdrew their request to pursue this evaluation at Children’s. (Exhibits P-8 and 10 and testimony of Ben’s mother)
7
Ben remained as a student at St. Mary’s and was transported daily by his parents to the Bagnall Elementary School to receive these services pursuant to the IEP.
8
Ms. Post completed a tutor reference form for Ben’s application to the Landmark summer program for summer 2008. She reported that she had been working with him for 30 minutes, 5 days per week on reading fluency and application of decoding skills and he had made incredible gains over the year. (Exhibit (P-32)
9
The parents were confused because the N1 form indicated services were to be provided from 8:15 to 8:30 which is 15 minutes. The service delivery grid of the IEP, however, stated 30 minutes which was the governing document according to Pentucket. (Exhibits P-36 and testimony of Scobert and Ben’s mother)
10
Dr. Holden’s report was provided to Pentucket at the resolution meeting on May 20, 2009.
11
Dr. Holden noted that Ben is able to switch between these processes of decoding words and recognizing sight words, so the problem is rather with his ability to recognize letters and decode for sound-symbol associations. (Exhibit P-45A)
12
Note that Ben’s score on the contextual fluency subtest of the TORC-4 decreased. In October of 2009, Ben’s score placed him in the 37 th percentile but his score one year later placed him in the 2 nd percentile. Despite this decrease in scores, Dr. Holden asserted that the overall testing showed that Ben had strengthened his underlying skills, placing him in a stronger position to eventually develop stronger automaticity and fluency in his reading, thus, supporting her opinion that he should remain in the same program. (Exhibit P-52)
13
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 (1 st Cir. 2007)
14
20 USC 1412(a)(5). See also 20 USC 1400(d)(1)(A); 20 USC 1412(a)(1)(A); MGL c. 71B; 34 CFR 300.114(a)(2)(i); 603 CMR 28.06(2)(c)
15
20 USC 1414(d)(1)(A)(i)(I)-(III); Honig v. Doe , 484 U.S. 305 (1988); Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley , 458 U.S. 176 (1982)
16
Lenn v. Portland Sch. Comm. , 998 F.2d 1083 (1 st Cir. 1993)
17
Rowley , 458 U.S. at 207
18
Rowley , 458 U.S. at 197
19
G.D. v. Westmoreland Sch. Dist. , 930 F.2d 942 (1 st Cir. 1991)
20
20 USC 1400(d)(4); North Reading School Committee v. Bureau of Special Education Appeals , 480 F. Supp.2d 479 (D.Mass. 2007)(the educational program must be reasonably calculated to provide effective results and demonstrable improvement in the various educational and personal skills identified as “special needs”)
21
Lessard v. Wilton Lyndeborough Cooperative School District. , 518 F.3d 18 (1 st Cir. 2008)
22
603 CMR 28.05(4)(b)
23
MGL c. 71B; 603 CMR 28.01(3)
24
Roland M. v. Concord Sch. Comm. , 910 F.2d 983 (1 st Cir. 1990)
25
Lenn v. Portland Sch. Comm. , 998 F.2d 1083 (1 st Cir. 1993)
26
Susan n. v. Wilson Sch. Dist. , 70 F.3d 751 (3 rd Cir. 1995)
27
Grim v. Rhinebeck Cent. Sch. Dist. , 346 F.3d 377 (2 nd Cir. 2003)
28
20 USC 1412(a)(10)(C)(n); Sch. Comm. Of Burlington v. Dep’t. of Educ. , 471 U.S. 359 (1985)
29
Florence County School District Four v. Carter , 510 U.S. 7 (1993)
30
Schaffer v. Weast , 546 U.S. 49 (2005) (The burden of persuasion in an administrative hearing challenging an IEP is placed on the party seeking relief. A party who has the burden of persuasion loses if the evidence is closely balanced).
31
The parties stipulated that if any IEP was found to be inappropriate, the parents would not have to prove that Landmark was appropriate in order to be reimbursed for their costs of placing Ben at Landmark. It was stipulated that Landmark was an appropriate placement.
32
Several Pentucket staff testified that Ben was never enrolled in Pentucket, was privately placed by his parents and in their opinion, the parents had no intention of enrolling Ben at Pentucket no matter what services were offered.
33
603 CMR 28.03(e)(1)
34
603 CMR 28.03(e)(4)
35
Dr. Holden reported that the testing confirmed that Ben had significant gaps in his writing.
37
Roland M. v. Concord Public Schools , 910 F.2d at 994 (1 st Cir. 1990)
38
20 USC 1415(f)(E)(ii)(II)