Re: Springfield Public Schools – #04-4706
COMMONWEALTH OF MASSACHUSETTS
Bureau Of Special Education Appeals
In Re: Springfield Public Schools BSEA # 04-4706
This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL ch. 71B), the state Administrative Procedure Act (MGL ch. 30A) and the regulations promulgated under these statutes.
A hearing was held on December 13 and 16, 2004 at the Catuogno Court Reporting Offices in Springfield, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:
Pamela Jones Family friend
Linda Lafontaine Speech-Language Pathologist, Curtis Blake Day School
Cheryl Muzio Clinical Psychologist, Private Practice
Shelley Pim Special Education Teacher, Springfield Public Schools
Janis Creeger Speech-Language Pathologist, Springfield Public Schools
Luciano Valles Special Education Supervisor, Springfield Public Schools
Paula McElhiney Educational Team Liaison, Springfield Public Schools
Sandra Hill Executive Officer for Special Education, Springfield Public Schools Marilyn Schmidt Attorney for Parents
Regina Tate Attorney for Springfield Public Schools
Christina Gentile Attorney for Springfield Public Schools
The official record of the hearing consists of documents submitted by the Parents and marked as exhibits P-1 through P-28;1 documents submitted by the Springfield Public Schools (Springfield) and marked as exhibits S-1 through S-13, and S-15 through S-40; and two days of recorded oral testimony and argument.
As agreed by the parties, written closing arguments were due on January 11, 2005, and the record closed on that date.
The sole issue to be decided in this case is whether Springfield is required to reimburse Parents for their out-of-pocket expenses for their unilateral placement of Student at the Curtis Blake Day School for the 2002-2003 school year.
Profile and Early History .
1. Student is a ten-year-old boy (date of birth 11/18/94) who currently lives with his Parents in Wilbraham, MA. However, at all times relevant to this dispute, Student lived with his Parents in Springfield, MA. Student has been diagnosed as having a severe language-based learning disability. Testimony of Father, exhibits P-6, P-25, S-21.
2. Student was first referred by his Parents for a special education evaluation on November 3, 1999 to address concerns regarding articulation. At the time, Student was privately placed by his Parents at a Montessori School for kindergarten for the 1999-2000 school year. Springfield’s speech-language evaluation indicated developmental delays and the need for special education services in the areas of cognition and communication. The IEP Team convened in January 2000 and recommended placement at Springfield’s Brunton School, a language-based integrated pre-school. Proposed services included half-day pre-school and twenty minutes of speech-language therapy three times each week in order to address Student’s cognitive and communication deficits. Exhibits S-1, S-6.
3. Student then attended the Brunton integrated pre-school program for six months. The IEP Team re-convened on May 11, 2000 and proposed a continuation of speech-language services for an hour each week, as well as pre-reading, pre-math, pre-writing and behavior special education services for the 2000-2001 school year. Parents accepted this IEP in full. Exhibit S-7.
4. Parents returned Student to the private Montessori School for the 2000-2001 school year where he repeated kindergarten. During this year, Student received speech-language services from Springfield in the after-school program. Approximately half way through his second year of kindergarten, Student’s teacher raised concerns that Student may have a learning disability and encouraged further evaluation of Student. Testimony of Father; exhibit S-10.
5. In response to these concerns, Springfield arranged for its school psychologist to conduct an assessment of Student on June 14, 2001. The school psychologist’s report concluded that Student was functioning in the average range of intellectual ability, with very good language based skills and excellent visual motor perceptual skills, although behind in the mastery of his readiness skills. It was also noted in the report that Student was a non-reader. The psychologist found no sign of a learning disability. Testimony of Father; exhibits P-2, S-15.
6. Student continued to attend the Montessori School during first grade for the 2001-2002 school year. Pursuant to an IEP accepted by Parents for the period 5/9/01 to 5/9/02, Springfield continued to provide Student with speech language services after school for one hour each week to address Student’s difficulties with articulation. The IEP provided no other special education or related services. Testimony of Jones; exhibits P-1, S-13.
7. An IEP Team meeting to discuss the June 14, 2001 psychological evaluation was scheduled for January 28, 2002, was re-scheduled, and occurred on February 11, 2002. During the February 2002 IEP Team meeting, it was agreed that Student would have a reading evaluation. The reading evaluation was completed and discussed at the next Team meeting that occurred on April 25, 2002. Testimony of Jones; exhibits P-3, S-16, S-17, S-19.
8. The reading evaluation indicated that Student was currently functioning at a readiness level “which is somewhat depressed given his age and academic placement”. The evaluator noted that Student had yet to “unlock the reading code” and therefore recommended that direct, systemic instruction was needed to develop the necessary phonological and phonemic awareness. The evaluator also explained that Student might benefit from a small group or flexible groupings with students of similar instructional needs, and recommended further evaluation to determine if an alternative placement should be recommended. Exhibit S-18.
9. During the April 25, 2002 Team meeting, Parents requested that there be an independent evaluation of their son. Springfield agreed. Parents arranged for an independent evaluation of Student to occur at the Curtis Blake Center in Springfield. Testimony of Jones, Father; exhibits P-5, S-20.
10. As a result of the April 25, 2002 Team meeting, Springfield prepared a new IEP for the period 4/25/02 to 4/25/03. This IEP essentially proposed the same services as were provided pursuant to the previous IEP — communication services of one hour each week to address Student’s difficulties with articulation. No other special education or related services were proposed. Parent rejected this IEP on June 10, 2002, stating on the parent response form: “We believe that an IEP should be planed [sic] after we have the results of [Student’s] test from the Curtis Blake center.” Student continued at the Montessori school for the remainder of 1 st grade. Testimony of Father; exhibits P-3, P-4, S-19.
Evaluation by the Curtis Blake Center .
11. The Curtis Blake Center evaluated Student in May 2002 and by letter dated June 18, 2002, forwarded to Springfield a copy of its report. The academic-linguistic evaluation by Curtis Blake staff concluded that Student’s history and the evaluation findings were consistent with a diagnosis of a language-based learning disability. The evaluation noted that Student’s oral language delays place him at risk for difficulties with acquisition of skills in the written language realm, and found Student to be “essentially a non-reader at this point in time”. Exhibits P-6, P-7, S-21.
12. The Curtis Blake evaluation made the following recommendations:
. . . [Student] will need daily, systematic, explicit and intensive code-based instruction to acquire literacy skills. He has not yet developed the prerequisite phonemic awareness to support the understanding of the alphabetic principle, that is, that alphabet letters are used to represent the segments of speech. He will need a variety of interventions that combine basic skill development with authentic reading and writing activities. It is critical that the strategies taught to facilitate reading and writing be integrated throughout the curriculum and that the common language used in scaffolding also be used consistently in all aspects of [Student’s] instruction.
Exhibits P-6, S-21.
13. The Curtis Blake evaluation also noted that Student is beginning to show some negative reactions to his language and learning difficulties. The report concluded: “It is critical that his social-emotional well-being be considered when plans for academic placement are being made.” Exhibits P-6, S-21.
14. Finally, the report noted:
[Student] has not yet met with success in the classroom in the areas of reading, spelling, and writing. He will need to be in an educational environment that can provide the comprehensive and multifaceted interventions that will facilitate progress in literacy.
Exhibits P-6, S-21.
Communications between Parents and Springfield Relevant to the Curtis Blake Day School .
15. Father apparently received the Curtis Blake evaluation report on June 21, 2002. On that day, he telephoned Sandra Hill2 and left a message for her to return his call. By this time Father had been informed by Ms. Jones3 that there was an opening at the Curtis Blake Day School for the 2002-2003 school year. Testimony of Father, Hill.
16. Springfield received the Curtis Blake evaluation report on June 26, 2002. Ms. Hill returned Father’s call on June 27, 2002. During their conversation, Father expressed to Ms. Hill his concerns regarding his son’s special education and related services and requested that Springfield conduct an IEP Team meeting to consider the Curtis Blake evaluation in order to ensure that his son’s special education and related services would be appropriate and that any modifications be made prior to the beginning of the next school year (2002-2003). Ms. Hill responded that it would not be possible to conduct a Team meeting until after the beginning of the 2002-2003 school year. Testimony of Father, Hill.
17. Ms. Hill explained through her testimony the following reasons that she had told Father that a Team meeting could not be convened until after the beginning of the 2002-2003 school year: (1) at the time of the telephone conversation on June 27, 2002, the 2001-2002 school year had already ended on June 19, 2002, (2) the staff and teachers who would be needed for a Team meeting included the Springfield educational team liaison (ETL) for the Student, teachers from Student’s Montessori School, and teachers and other staff familiar with the Springfield program in which Student would be placed for the 2002-2003 school year, (3) the ETL who would normally attend this meeting (Linda Fitzgerald) had retired and it would not be possible to hire her replacement until after the beginning of the 2002-2003 school year, (4) another ETL would not be familiar with Student or the Springfield school that would be most appropriate for Student, (5) the Springfield teachers and staff would not be available for a meeting unless special arrangements were made (including additional compensation) to have them attend a summer meeting, and (6) it was not known whether the Montessori teachers would have been available to attend a summer meeting.
18. Father testified that during his telephone conversation with Ms. Hill, he objected to not having a Team meeting during the summer, that he told her that he would have to make a decision prior to the beginning of the 2002-2003 school year regarding his son’s educational placement and that he would have to choose the placement that was the “sure thing” for his son. Father further testified that although he did not explicitly state that he would be unilaterally placing his son at the Curtis Blake Day School, the clear implication of his remarks to Ms. Hill was that he would be placing his son there for the 2002-2003 school year because Springfield’s decision not to re-convene the Team over the summer left him no choice. Testimony of Father; exhibits P-6, S-21.
19. Parents sent a letter to Ms. Hill, dated August 2, 2002 and received by Springfield on August 5, 2002, requesting a Team meeting for their son and stating that Parents would like to discuss the results of the Curtis Blake Testing and Student’s future educational needs. Ms. Hill did not respond to this letter. Testimony of Father, Hill; exhibit P-9, S-22.
20. Ms. Hill testified that she assumed that Student would continue to attend his 1 st grade Montessori School placement for the beginning of his 2 nd grade (the 2002-2003 school year), at least until a Team meeting occurred during the 2002-2003 school year to consider the Curtis Blake evaluation and make any changes to Student’s IEP. Ms. Hill testified that once the Curtis Blake evaluations in May 2002 more completely described Student’s disabilities and needs, it was clear that Springfield’s then current IEP (for the period 4/25/02 to 4/25/03) did not provide appropriate services to meet Student’s special education needs.
21. Ms. Hill testified that the Springfield ETLs are instructed to send to parents the requisite parents’ rights information at the times required by special education regulations, including when an IEP is sent out to the parents. When Parent signed the consent for evaluation form on 11/23/99, she checked the box on the form indicating that she had received the Parents’ Rights Brochure and understood her parental rights. Exhibit S-1. When Parent signed an IEP on 1/27/2000, she checked the box on the form indicating that she had received a copy of the Parents’ Rights Brochure. Exhibit S-6, page 13 of 13. Father first testified that he did not remember receiving the requisite parents’ rights information. He then stated that he has received a great deal of paperwork from Springfield and did not know whether he had received the parents’ rights information.
22. Ms. Jones has been assisting Parents as a family friend at least since the IEP Team meeting in January 2002 through the present. She testified that she is aware of the requirement that parents must notify a school district in advance of a unilateral placement to a private school, but never discussed this with Parents. Father had a discussion with an attorney during the summer of 2002 regarding his special education rights, but did not retain that attorney to represent him in this dispute. Father retained his present attorney in April 2003. Testimony of Jones, Father; oral stipulation of parties on December 16, 2004 regarding date Father retained his current attorney.
23. Other than Father’s telephone conversation with Ms. Hill on June 27, 2002, Parents did not advise Springfield either orally or in writing regarding their intentions to place their son at the Curtis Blake Day School for the 2002-2003 school year. Testimony of Father.
Enrollment of Student at the Curtis Blake Day School .
24. Soon after his telephone conversation with Ms. Hill on June 27, 2002, Father called the Curtis Blake Day School to have his son admitted for the 2002-2003 school year. Parents submitted a Registration Form to Curtis Blake Day School dated July 9, 2002. Testimony of Father, exhibit P-28.
25. Student began school at Curtis Blake at the beginning of the 2002-2003 school year. The first day of school at the Curtis Blake Day School would likely have been the Tuesday before Labor Day, or August 27, 2002. Testimony of Lafontaine. On this day, a Springfield school bus came to Student’s home to transport him to Curtis Blake. Ms. Hill testified that she did not know why a Springfield bus would have provided transportation to Student to Curtis Blake since Student was not on Springfield’s list of students to be transported to Curtis Blake. Testimony of Father, Hill.
26. The first day of school for Springfield for the 2002-2003 school year was the Tuesday after Labor Day, or September 3, 2002. There are 185 school days in the school year, but the school year actually ends at the 180 th day (five additional days are included in the school year in the event that school days are cancelled on account of snow). Testimony of Hill.
October 2002 Team Meeting and Proposed IEP .
27. At the beginning of the 2002-2003 school year, Father called Springfield on several occasions, but Springfield did not respond to his calls. Out of frustration with Springfield’s non-response, Father contacted his state representative who arranged for a meeting with the Springfield Superintendent of Schools. Shortly after this meeting, Ms. Hill was directed by the Superintendent to arrange a Team meeting. The meeting was for the purpose of considering the Curtis Blake evaluation and making any changes to Student’s IEP. Ms. Hill directed that an ETL (Paula McElhiney) arrange for the Team meeting. Ms. McElhiney was not Student’s ETL and therefore would not normally have been responsible for working with Student and his Team. Ms. Hill testified that the Team meeting had likely been delayed because Ms. Fitzgerald’s replacement (the ETL who would normally have coordinated the Team meeting) had not been hired or was still being trained. Shortly after Ms. Hill was directed to arrange a Team meeting, Mr. Valles (Springfield’s Supervisor of Speech-Language-Hearing-Vision and LLD Classroom) called Father and an IEP Team meeting was scheduled. Testimony of Father, Hill; exhibits P-10, S-23.
28. The Team meeting occurred on October 16, 2002. At that meeting, Springfield proposed placement of Student in its language learning disability (LLD) classroom contained within its Glickman Elementary School. The following day, Mother and Ms. Jones visited the LLD classroom.
29. Mother’s and Ms. Jones’ visit to the LLD classroom at Glickman was for the purpose of determining whether it would be an appropriate program for Student, and therefore whether Parents should transfer Student to this placement from Curtis Blake. Ms. Jones testified that she would have advised Parents to withdraw Student from Curtis Blake and enroll Student at Glickman if she had concluded that Glickman was as good a placement for Student as (or better than) Curtis Blake. At Glickman, Mother and Ms. Jones observed a reading lesson by the speech-language pathologist for ten to twenty minutes, briefly observed a second classroom (although no teaching was occurring at the time of this observation) and spoke with several staff for fifteen to twenty minutes. Their entire visit lasted approximately 45 minutes. Testimony of Jones, Father.
30. After visiting Glickman, Ms. Jones concluded that it would not be an appropriate placement for Student. She believed that the students in the LLD classroom were older, bigger and more advanced academically than Student. Ms. Jones also testified that Student would not have had the skills to participate in the reading lesson that she observed. Ms. Jones also expressed concern that the number of transitions from one activity or classroom to another during the school day would be too stressful for Student, with the result that he would likely act out. She testified that she had observed Student’s difficulties with transitions at home and, at times, he has become oppositional. She concluded that although she could not testify as to whether this program could have met Student’s academic needs, she believes that it could not have met his social needs because of the number of transitions. Testimony of Jones.
31. Ms. Jones advised the Parents that the proposed placement at the LLD classroom at Glickman would not be an appropriate program for Student. On the basis of this advice, Parents rejected Springfield’s proposed IEP for the 2002-2003 school year and continued placement of their son at the Curtis Blake Day School. Testimony of Jones, Father.
32. The IEP proposed by Springfield as a result of the October 16, 2002 Team meeting covered the time period from 10/16/02 to 10/15/03 and proposed placement of Student at the LLD classroom at Glickman. The special education and related services proposed through this IEP are as follows: (1) speech-language services by a speech-language pathologist for thirty minutes each day; (2) English-language instruction by special education staff for two hours each day; (3) mathematics instruction by special education staff for forty-five minutes each day; (4) social studies instruction by special education staff for forty-five minutes each day; and (5) science instruction by special education staff for forty-five minutes each day. Exhibits P-12, S-24.
33. This IEP calls for the following methodology/delivery of instruction: instruction with a small group; direct systematic instruction in phonological awareness and word analysis strategies; fluency/guided reading; direct instruction in comprehension strategies; scaffolding of text using strategies such as preview/preteach vocabulary; developing a background knowledge, and use of graphic organizers to aid in comprehension; direct instruction in writing process which is scaffolded to include teaching of self monitoring techniques for capitalization, punctuation, organization, sentence structure, and spelling; carryover of written language and reading to content areas; math instruction within small group setting, develop vocabulary of math, provide visual examples of multi-stepped problems; scaffolding of skills, visually describe process. Exhibits P-12, S-24, page 4 of 15.
Student’s Progress at the Curtis Blake Day School .
34. When Student entered Curtis Blake as a second grade student for the 2002-2003 school year, Student was a non-reader, he refused to write and had no print to sound connection, he demonstrated a severe articulation deficit, his listening comprehension was impaired, and his grammar and pronoun usage were incorrect. With respect to his academic level, he was essentially functioning at the level of a pre-school or kindergarten student. At this time, Student also demonstrated severe difficulties with social interactions, typically engaging in parallel play similar to a child in nursery school. Testimony of Lafontaine.
35. Student made significant academic progress during his 2 nd grade at Curtis Blake during the 2002-2003 school year. Staff utilized the Lindamood Bell reading program and it was effective with Student, with the result that by the end of the 2002-2003 school year, Student was reading at the primer (or mid-first grade) level. Student’s articulation also improved. Testimony of Lafontaine; exhibits P-17, P-18, P-22, P-23, S-35, S-37 (progress reports from Curtis Blake).
36. At Curtis Blake during the 2002-2003 school year, Student continued to struggle regarding his social and emotional deficits, presumably due to the impact of Student’s continuing language difficulties on his self-esteem and social skills. On March 13, 2003, Robert Storey, EdD, conducted a psychological assessment of Student. Dr. Storey concluded that Student is an “emotionally fragile boy whose learning disabilities are now inducing clinically significant conditions in the ability to cope, think, and tolerate frustration. [Student’s] learning disabilities have spawned a deep and persistent depression and anxiety.” Dr. Storey recommended individual psychotherapy. Testimony of Lafontaine; exhibits P-19, S-36.
37. Parents moved from Springfield to Wilbraham, MA, and Wilbraham wrote an IEP for Student to attend Curtis Blake for the 2003-2004 school year. Student continues to attend Curtis Blake during the current school year of 2004-2005. Testimony of Father.
38. Springfield stipulated that Student’s placement at the Curtis Blake Day School for the 2002-2003 school year was appropriate for purposes of meeting his special education needs. Stipulation by Springfield’s attorney at the Hearing on December 13, 2004.
Testimony of Springfield Staff Regarding the LLD Classroom at Glickman .
39. Shelley Pim testified (and her resume reflects) that currently and since August 1997 she has been the teacher for the LLD classroom in the Glickman Elementary School. She has been a learning disabilities teacher in other places since August 1976. She received her master’s degree in special education (learning disabilities) in 1978 and is currently a doctoral degree candidate. She has taken a significant amount of in-service training relative to learning disabilities during the past five years. Exhibit S-32 (resume).
40. Ms. Pim testified that during the 2002-2003 school year, her LLD classroom included three 2 nd graders, two 3 rd graders and seven 4 th graders, for a total of twelve students. She explained that the classroom is (and was then) staffed by herself, Janis Creeger (speech-language pathologist) and a paraprofessional.
41. Ms. Pim testified that at the beginning of the school year, additional testing may be done to determine the level of the students in the class, and then she and Ms. Creeger schedule the class time and configure student groups so that the particular needs of each student can be met appropriately. She also noted that she and Ms. Creeger meet daily during a forty-minute preparation time and during lunch to discuss, coordinate and plan the instruction for the classroom.
42. Ms. Pim testified that exhibit S-25 (pages 292 through 294) lists the strategies (among others) that were used for remediation during the 2002-2003 school year in the LLD classroom. The document includes use of scaffolding, graphic organizers and Story Grammar Marker.
43. Ms. Pim testified that during the 2002-2003 school year, the LLD class was broken down into three reading groups at the following levels: 1.2 grade level, 1.4 grade level and 2.1 grade level. She explained that had Student been in this classroom, she would have separately taught him reading on a 1:1 basis at the pre-primer level (since his reading level was below all of the other students), and this would have occurred for an hour each day. She noted that providing 1:1 reading instruction to a student is not unusual within her classroom.
44. Ms. Pim testified that with Student, she would have used the Harcourt Brace reading program, would have started by teaching him the alphabet, would have used a multi-sensory approach and would have introduced him to simple readers as soon as possible. She stated that she and Ms. Creeger have four computers in the classroom and utilize a large number of computer software programs to supplement their instruction in a variety of areas, including reading. She noted that Story Grammar Marker is used in the classroom to assist with reading comprehension.
45. Ms. Pim testified that they use the Touch Math program to teach math in her classroom. She explained the effectiveness of this program as it allows the student to touch and see the numbers, thus providing multi-sensory instruction.
46. Ms. Pim testified that she uses the Sound and Symbol program (in which she has been formally trained) rather than the Lindamood Bell program to teach phonemic awareness to her students. She explained that she is familiar with Lindamood Bell, but prefers Sound and Symbol as she believes it to be comparable to and equally as effective as Lindamood Bell but more dynamic and more multi-sensory.
47. Ms. Pim testified that there is an English language arts block during the day that focuses on writing and spelling. Ms. Pim testified that even though Student would have entered the school year not writing, he would have been appropriately placed with a small group of students (three or four children) in her classroom, some or all of whom would have been above his level since the instruction within the group (and each student’s work) is adapted to the individual needs and abilities of each student. She noted that the social studies and science curriculums are used to develop writing skills.
48. Ms. Pim testified that she would have instructed Student in decoding and for this purpose would have used the Fernald program to teach him the alphabet and beginning sight words. She noted that she would have chosen this program as it is very multi-sensory.
49. Ms. Pim testified that had Student attended the LLD classroom, he would have been taught social studies and science within this classroom, rather than taught with typical children. She noted that some (but not all) of the other children during the 2002-2003 school year were similarly taught social studies and science within the LLD classroom.
50. Ms. Pim testified that social pragmatics instruction is embedded in the classroom instruction throughout the day. She noted that in addition, social pragmatics instruction (the so-called “responsive classroom” program) is taught within her classroom.
51. Ms. Pim testified that Student would have participated with typical 2 nd grade children during lunch and an aide would be present to provide any necessary assistance. She explained that going to (and returning from) lunch would have been two of five or six transitions for Student each day. She stated that over the years, she has worked with many children who have difficulty making transitions, that from her knowledge of Student, his transition difficulties are not as serious as those of some of the other children she has worked with, and that based upon her experience with other children, she believes that she would have been able to work successfully with Student to help him learn to make these transitions appropriately.
52. Ms. Pim testified that had Student been a member of her classroom during the 2002-2003 school year, he would have been the neediest child within the classroom because of his low reading level and his social/emotional needs. She noted, however, that she has taught children with greater social and emotional needs than Student and has taught children who are at Student’s reading level.
53. Ms. Pim testified that Glickman has a school adjustment counselor who was available to work with students in her classroom on a 1:1 basis, small group or whole group (i.e., the entire class) during the 2002-2003 school year. She noted that the school adjustment counselor teaches social pragmatics in her classroom to those children whose IEP calls for this instruction. She also testified that there is a school psychologist assigned to Glickman who frequented her classroom during the 2002-2003 school year.
54. Janis Creeger testified (and her resume indicates) that she is currently in her fifth year as the speech-language pathologist in the LLD classroom at Glickman. She noted that she assisted Springfield to develop this classroom. She has been employed by Springfield as a speech-language pathologist since 1986, she is certified and licensed as a speech-language pathologist, and she has her certificate of clinical competence in speech-language pathology. She also testified that she has significant professional training in a variety of strategies for language-based learners, including Lindamood Bell, Story Grammar Marker and Benchmark, and has used these strategies at different times in the LLD classroom. Exhibit S-30 (resume).
55. Ms. Creeger testified that she has reviewed the Curtis Blake evaluation of Student as well as the profiles of the children who were in her classroom during the 2002-2003 school year, and believes that he would have fit in well with the other students and with the LLD classroom as a whole, and that the program would have fit him. She stated that Student’s special education needs and his cognitive profile are similar to those of the other children in this classroom, although he would have been more impaired than the other children because of his deficits regarding reading and because of his social/emotional difficulties. She noted that over the years, she and Ms. Pim have taught other children in this classroom who were at the same reading level as Student.
56. Ms. Creeger testified that for a child with a language-based disability such as Student, what would need to be addressed are his deficits relevant to phonological awareness, pragmatics (and social skills related to the pragmatic deficits), articulation, transitions, and vocabulary and grammar.
57. Ms. Creeger testified that the phonological awareness program used in the classroom is Sounds and Symbols, and that this program is highly motivating and well suited for students who have had difficulties with reading. She noted that she is familiar with Sounds and Symbols and is formally trained in and has used Lindamood Bell.
58. Ms. Creeger testified that had Student been in her classroom for the 2002-2003 school year, she would have provided speech-language services to him each day for thirty minutes on a 1:1 basis, using curriculum-based materials. She noted that she would have used parts of the Lindamood Bell program for this purpose. She explained that her use of certain parts of this program is consistent with the use of the Sounds and Symbols program used by Ms. Pim. She stated that she would also have been responsible for providing math instruction to Student in the group of children who were functioning at the 1 st to 2 nd grade level. She has been using the Touch Math program, which utilizes sequencing, visuals and tactiles.
59. Ms. Creeger testified that she and Ms. Pim used the Story Grammar Marker within the LLD classroom in 2002-2003 school year. She noted that this program provides visual representation of parts of a story to help a student sequence the story. They use it in reading instruction, and also for science and social studies.
60. Ms. Creeger testified that the strategies to facilitate reading and writing are integrated throughout the curriculum and that they consistently use a common language of instruction in all aspects of the classroom. She noted that consistency of instruction between her and Ms. Pim occurs as a result of her and Ms. Pim’s attending similar professional development, and as a result of their spending time together each day (daily forty minute preparation period and eating lunch) to discuss what will be taught in the classroom. Ms. Creeger testified that she created the document at pages 292 through 294 of exhibit S-25 as a response to Ms. Jones’ questions (listed at pages 296 and 297 of exhibit S-25) to describe the strategies being used in her classroom.
61. Ms. Creeger testified that although the Curtis Blake evaluation (exhibit S-21) did not indicate that social pragmatics was a deficit requiring direct instruction for Student, Student’s need for social pragmatics was discussed during the October 16, 2002 Team meeting. She noted that more often than not, social pragmatics is an area of weakness that needs to be addressed with her students in the LLD classroom. She testified that these deficits are addressed in the following three ways in her classroom. Instruction in social pragmatics is embedded into the classroom teaching throughout the day (inappropriate speech or behavior is corrected as it occurs or at a more appropriate time later in the day), the twenty minute daily morning meeting for all children provides direct instruction in pragmatics through the “Responsive Classroom” program, and the school adjustment counselor provides additional direct instruction in social pragmatics to the whole group or small groups (boys in one group; girls in the other) and, as needed, on a 1:1 basis. She noted that the work of the school adjustment counselor in this regard would normally be reflected specifically in a student’s IEP.
62. Ms. Creeger testified that when Dr. Muzio and Ms. Jones observed the LLD classroom, they each observed her teaching the most advanced of the three reading groups (at the 2.1 grade level) while Student would have been instructed individually at the pre-primer level when he entered the classroom in the fall.
63. Ms. Creeger testified that, in her opinion, the LLD classroom would have met Student’s need for pragmatic social skills, that the strong phonological awareness instruction in the classroom would have also met Student’s needs in this regard, and that he would have benefited from the high quality of reading instruction provided by Ms. Pim. She also stated that she believes that the classroom would have addressed satisfactorily his needs regarding articulation and transitions.
Testimony of Curtis Blake Staff Regarding Student’s Needs and the LLD Classroom .
64. In June 2003, Curtis Blake Day School staff met with Springfield staff and discussed the proposed program for Student at Glickman. At the meeting, Curtis Blake staff (including Ms. Lafontaine) had an opportunity to ask the Springfield staff (including Ms. Pim and Ms. Creeger) questions regarding the LLD classroom. On the basis of information gleaned from this meeting, Ms. Lafontaine formed a number of opinions regarding the appropriateness of the LLD classroom as a placement for Student for the 2002-2003 school year. Ms. Lafontaine noted in her testimony that her opinions regarding Glickman were based entirely on the information obtained at this meeting, together with her knowledge of Student from working with him at Curtis Blake. Ms. Lafontaine has not visited the LLD classroom. After the June 2003 meeting, Ms. Lafontaine summarized her opinions in written notes (exhibit P-13). Testimony of Lafontaine.
65. Ms. Lafontaine testified (and her resume reflects) that since 1997 she has been employed as a speech-language pathologist at the Curtis Blake Day School. Her responsibilities include providing speech-language therapy and instruction to students, supervising speech-language therapy of others, consulting and collaborating with teachers, and giving workshops on phonological awareness. She has been a speech-language pathologist since 1982, holds a master’s degree in speech-language pathology, is certified and licensed in Massachusetts and has her certificate of clinical competence in speech-language pathology. She also has given a significant number of conference and workshop presentations and has published a number of articles relevant to her work. Exhibit P-27 (resume).
66. Ms. Lafontaine testified and her written notes (exhibit P-13) reflect that Student’s language deficits are so severe that the Lindamood Bell reading program is most appropriate for him. She noted that one of the Glickman teachers (Ms. Creeger) was trained in Lindamood Bell but was not using it, while the other teacher (Ms. Pim) was not trained in this program. She stated that because Student was a non-reader when he entered Curtis Blake, instruction at that time would need to be at his precise level in order to be effective. She also recommended that the reading instruction for Student be given on a 1:1 basis (i.e., one teacher and one student) so that it would be sufficiently intensive and sufficiently individualized. She noted her concern that reading is not taught individually at the LLD classroom at Glickman.
67. Ms. Lafontaine testified and her written notes reflect that because of Student’s severe language-based disability, in combination with his significant deficits regarding pragmatics, it was not possible for him to learn pragmatics only through developing language skills and observing others who speak and act appropriately, nor would it be sufficient for Student to receive group pragmatic instruction once or twice each week. Rather, she opined that Student requires that direct teaching in this area be incorporated into Student’s instruction throughout the day. She stated her understanding that Glickman included no formal program (i.e., direct teaching) in pragmatic language and that the other students within the LLD classroom were not in need of this instruction.
68. Ms. Lafontaine testified and her written notes reflect that Student has a difficult time at Curtis Blake with transitions (even with changing activities within the same classroom). She explained that within Student’s program at the Curtis Blake Day School for the 2002-2003 school year, Student was required to make a number of transitions – for example, from the classroom to the cafeteria. Exhibit P-21 (Student’s schedule). Ms. Lafontaine stated that she believes that it would be problematic for Student to make the six or seven transitions required of him at Glickman. She also noted that Student would likely have difficulty being with regular education students (for example, during lunch or physical education) because of his low self-esteem. She believes that Student needs to feel that he is successful in order to succeed in school.
69. Ms. Lafontaine testified and her written notes reflect that the other students within the LLD classroom apparently were not as impaired as Student. She expressed concern that the LLD classroom staff would not have been prepared to provide the intensive, integrated instruction required for someone at Student’s level of need. She also explained that the LLD classroom was designed for students to receive social studies and science with typical children, which would not have been appropriate for Student. She opined that Student’s self-esteem would “take a nosedive” in the LLD classroom because the skills of the other children would be far above Student’s level.
Evaluation by Dr. Muzio .
70. Cheryl Muzio testified (and her resume reflects) that she received her doctor of psychology (clinical psychology) degree in 1996, that since 1997 she has engaged in private practice as a clinical psychologist (approximately half time currently), since 1998 she has been a school psychologist at the Sanderson Academy in Ashfield, MA, and since 2003 she has been a supervising psychologist at the Mohawk Regional School District in Shelburne Falls, MA. Within her private practice, she provides independent psychological assessments at the request of individuals and school systems to clarify diagnostic and treatment concerns regarding children, adolescents and adults. Exhibit P-26 (resume).
71. In June 2003, Dr. Muzio spent approximately three hours at the LLD classroom at the Glickman Elementary School, observing the classroom which Student was offered pursuant to Springfield’s IEP, speaking very briefly with the classroom teachers, and speaking more extensively with Mr. Valles (supervisor of the classroom).
72. On July 17, 2003, Dr. Muzio evaluated Student for approximately three hours. She had also reviewed his educational records since 1999. Her evaluation report (exhibit P-25) states that Student was referred to Dr. Muzio for assessment by Father to help determine whether transferring from his current school (Curtis Blake) to the LLD classroom would be appropriate.
73. Dr. Muzio testified (and her evaluation report reflects) that Student is severely language learning disabled with a notable disparity between performance in tasks that require verbalizing and tasks of nonverbal problem solving (Verbal Conceptualization Index of 76 and a Performance IQ of 102). She noted significant weaknesses in expressive language and working memory. Dr. Muzio also found that Student’s learning-based deficits are manifesting increasingly as difficulty with social and emotional functioning, and she identified these difficulties as an Anxiety Disorder NOS: Mixed Anxiety-Depressive Disorder.
74. Dr. Muzio testified that Student needs an educational program appropriate to Student’s special education needs that is fully integrated across all parts of the curriculum. She emphasized the severity of Student’s learning disability, making it important that there be consistency of instruction so that he does not have to make adjustments during different parts of the day. She explained that Student’s curriculum would need to be modified in all areas, including science and social studies, in order that he be able to access it (he would gain little from academic courses that are not modified). She further testified that there should be systematic teaching of reading and language at Student’s precise academic level, that Student should be instructed by well-trained staff with a clear knowledge of the nature of the disability and the remediation needed, and that it would be important that Student have a peer group that reflects his academic level, in particular because of his well-documented emotional deficits that are secondary to his learning difficulties.
75. Dr. Muzio testified (and her report reflects) that in her opinion, Student should be maintained in his current placement at the Curtis Blake Day School, rather than be transferred to the LLD classroom at the Glickman School for the following reasons. She explained that from her observation of this classroom, she found that the instructional methods used by each teacher were internally consistent, that the lessons were very well presented but that between the teachers there was inconsistency regarding instructional methods and resources, such as Story Grammar Marker, and that in light of Student’s language-based learning disability, his ability to access the curriculum would be limited without a fully integrated program. She observed that the students were at a higher level than Student with respect to reading and reading comprehension (they were reading at the late first grade or early second grade level); and that Student would not be able to comprehend what was being discussed and would not be able to participate effectively in classroom discussions. Dr. Muzio stated that Mr. Valles informed her that the students within the LLD classroom were third and fourth graders. She believes that in this classroom, Student would need a 1:1 aide working with him. She also noted that she would not support any participation of Student with typical children, even in lunch, physical education, etc., because of his social/emotional difficulties.
76. Dr. Muzio testified (and her report reflects) that in light of Student’s social and emotional deficits, he requires direct instruction in social pragmatics that is not available in the LLD classroom. She added that pragmatic instruction for Student needs to be integrated into the classroom throughout the day. She also noted that the LLD classroom does not have access on a daily basis to a psychologist, behaviorist or other mental health professional needed to address Student’s social and emotional deficits. She testified that in her opinion, Student’s educational needs could not be met appropriately at the LLD classroom, and he would not likely make effective educational progress in this classroom.
77. Dr. Muzio testified (and her report reflects) that given that Student has made a successful transition to a fully integrated program at Curtis Blake, which has the requisite resources to continue to help him grow academically, socially and emotionally, a change in placement is “clearly contraindicated at this time”. Similarly, she stated that she does not believe that transferring Student from the Curtis Blake Day School to the LLD classroom in October 2002 would have been successful either academically or socially because of the likely stress on Student of such a transition.
Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act4 and the state special education statute.5 As such, Student is entitled to a free appropriate public education (FAPE).6 Neither his eligibility status nor his entitlement to FAPE at all times relevant to this proceeding is in dispute.
FAPE requires that the individualized education program (IEP) be tailored to address Student’s unique needs in a way reasonably calculated to enable him to make meaningful and effective educational progress in the least restrictive environment.7
A. Appropriateness of Springfield’s Proposed IEP .
The initial question to be addressed is whether the IEP proposed by Springfield for Student for the 2002-2003 school year satisfied this standard. I note at the outset that in judging the appropriateness of this IEP, I consider only what is included within the IEP itself rather than what, in addition, could have been provided to Student.8 Also, the IEP must be judged on the basis of whether it was appropriate at the time it was proposed.9
Parents may receive retroactive reimbursement for private educational services they unilaterally provide to their child if I conclude both that the public placement violated the IDEA and that the private placement was proper under the IDEA.10
The purpose of the October 16, 2002 IEP Team meeting, during which the IEP in question was developed, was to consider Student’s needs in light of the Curtis Blake evaluation which had been conducted in May 2002. By the time of this meeting there was also experience with Student subsequent to the evaluation as he had been attending the Curtis Blake Day School since late August 2002, and this experience would be relevant to the development of a new IEP. However, I note that the principal basis for determining Student’s special education needs and revising his IEP to meet those needs would have been the Curtis Blake evaluation, and I consider the IEP in this light. Facts section of this Decision (Facts), par. 27.
I note also, at the outset, that I found the issue of the appropriateness of the IEP to be a difficult one to resolve. Both parties presented credible evidence to support their positions. Each party, appropriately, relied on witnesses with significant expertise and experience – Dr. Muzio and Ms. Lafontaine for Parents, and Ms. Pim and Ms. Creeger for Springfield. My decision on this issue rests, in significant part, on my determination of the relative credibility and persuasiveness of these four witnesses.
The classroom teacher (Ms. Pim) and speech-language pathologist (Ms. Creeger) for the LLD classroom at the Glickman Elementary School are both well qualified to understand and implement a program of instruction for children with Student’s cognitive and learning profile. They have relevant graduate degrees, have taken a significant number of relevant professional development courses, and have extensive experience both working together in this classroom with language learning disabled students as well as in other relevant forums. They have worked with other children with disabilities similar (in type and severity) to those of Student. Facts, pars. 39, 51, 52, 54, 55. I found that their testimony reflected this significant experience and expertise.
It seems self-evident that Ms. Pim’s and Ms. Creeger’s factual understanding of the LLD classroom and what occurs within it far exceeds the knowledge of Ms. Jones (who spent a total of 45 minutes visiting the program), Dr. Muzio (who spent three hours visiting the program and had minimal conversations with either Ms. Pim or Ms. Creeger) and Ms. Lafontaine (whose knowledge of the LLD classroom is derived solely from a Team meeting that included Ms. Pim and Ms. Creeger). Facts, pars. 29, 64, 71. I found Ms. Pim and Ms. Creeger to be careful and candid witnesses. In those instances where the testimony of Ms. Pim and/or Ms. Creeger was inconsistent with the testimony of Ms. Jones, Dr. Muzio and/or Ms. Lafontaine regarding questions of fact pertaining to the LLD classroom, I resolve the inconsistency in favor of the testimony of Ms. Pim and/or Ms. Creeger. I also note that the persuasiveness of Parents’ witnesses (Dr. Muzio, Ms. Jones and Ms. Lafontaine) in critiquing the LLD classroom was undercut somewhat by their not having an entirely accurate and complete understanding of the LLD classroom and how Student would have been served within it, as will be explained below in more detail.
The testimony of Ms. Pim and Ms. Creeger made clear, and I so find, that the LLD classroom at Glickman was developed in general to address precisely the kind of learning language deficits presented by Student. Student’s particular composite of deficits would not have presented anything new to Ms. Pim and Ms. Glickman in their experience within this classroom. Equally important, Ms. Pim and Ms. Creeger, as a matter of course, individualized their instruction and approach in order to address the unique needs of the particular students in the classroom each year, and this would have occurred with Student. Facts, pars. 41, 43, 52, 55, 56, 63.
I am persuaded, through the testimony of Ms. Pim and Ms. Creeger, that they would have provided the essential elements recommended by the Curtis Blake evaluation during the 2002-2003 school year. This evaluation determined, for the first time, that Student has significant language-based learning disabilities, and that in order to address these deficits, he required “daily, systematic, explicit and intensive code-based instruction to acquire literacy skills.” The report noted that Student had “not yet developed the prerequisite phonemic awareness to support the understanding of the alphabetic principle”. He would also require “a variety of interventions that combine basic skill development with authentic reading and writing activities.” The report also emphasized that the teaching strategies for reading and writing should be integrated throughout the curriculum, and that there be a common language used in all aspects of his instruction. Facts, pars. 11, 12.
The instruction in the LLD classroom would have likely met these Curtis Blake recommendations (and similar recommendations of Dr. Muzio11 ) through the following special education instruction and remediation: (1) daily 1:1 reading instruction at Student’s level using a Harcourt Brace reading program, (2) utilization of the Sounds and Symbols program to teach phonemic awareness, (3) utilization of Story Marker Grammar and scaffolding to assist with comprehension in reading instruction as well as in science and social studies, (4) daily group instruction in English language arts that includes writing instruction at Student’s level utilizing the Fernald program, (5) daily math instruction at Student’s level using the Touch Math program, (6) daily 1:1 speech-language services using parts of the Lindamood Bell program, (7) teaching of all academic subjects (including science and social studies) by the special education teachers, (8) a peer group of language learning disabled students with profiles similar to that of Student, (9) instruction methods used by Ms. Pim and Ms. Creeger that were coordinated on a daily basis in order to provide an integrated and consistent teaching approach throughout the day, and (10) staff who are highly experienced and trained in the area of language learning disabilities. Facts, pars. 42, 43, 44, 45, 46, 47, 48, 49, 55, 56, 57, 58, 59, 60, 63.
I also note that the methodologies and instruction set forth in Student’s IEP are entirely consistent with the Curtis Blake evaluations. Facts, pars. 11, 12, 33. I find that the LLD classroom would have been able to implement the methodologies and instructions described within the IEP for Student during the 2002-2003 school year.
I now turn to specific concerns raised by Parents and their witnesses regarding Springfield’s proposed IEP.
Social-emotional deficits . The Curtis Blake evaluation explained that Student “is beginning to show some negative reactions to his language and learning difficulties” and that “[i]t is critical that his social-emotional well-being be considered when plans for academic placement are being made.” Although an area of significant concern, the Curtis Blake evaluation did not, however, recommend direct services to address it, presumably because Student’s emotional deficits were secondary to his language-based learning needs and would therefore likely be significantly helped by an academic program that appropriately met his learning needs and that included appropriate peers with similar learning deficits. Facts, par. 13.
It was not until Dr. Storey’s psychological evaluation in March 2003 that direct services (individual psychotherapy) were recommended to address Student’s emotional needs. Facts, par. 36.
I find that at the time that Springfield proposed its IEP, it was appropriate not to recommend direct services in this area, instead to focus on addressing Student’s learning needs as well as his need for an appropriate peer group, and at the same time, to keep a careful eye on Student’s emotional needs to determine if additional, direct services would be needed. A school adjustment counselor and school psychologist were available at Glickman for this purpose. Facts, par. 53. I therefore conclude that Springfield’s proposed IEP was not inadequate in this regard.
Social pragmatics . Dr. Muzio and Ms. Lafontaine raised concerns regarding the ability of the LLD classroom to meet Student’s deficits regarding social pragmatics. Student has significant needs in this area. However, neither the Curtis Blake evaluation nor any other report or evaluation identified this as a specific area of need requiring direct instruction by the time of the October 16, 2002 Team meeting. The issue was discussed at the October Team meeting, but it is not apparent from the testimony how much information was provided to Springfield or how much was known at this time regarding Student’s need for special education services to address this area of need. Facts, pars. 67, 76.
The LLD classroom routinely provides for all students both direct instruction in social pragmatics for twenty minutes each day and on-going instruction that is embedded into classroom teaching throughout the day. Need for assistance in this area is common with the language-disabled students in the LLD classroom. Any additional instruction would have been explicitly reflected in the IEP, which it was not for Student. Facts, pars. 50, 61. I find that, given what was reasonably known by Springfield at the time the IEP was written, the amount of instruction regarding social pragmatics which Student would have received within the LLD classroom, and the classroom itself, were appropriate to address his needs in this area.
Peer group . Ms. Jones, Ms. Lafontaine and Dr. Muzio raised the concern that the students in the LLD classroom for the 2002-2003 school year appeared to have academic skills well above those of Student and that he would not likely be able to participate effectively in the classroom discussion and instruction. Ms. Lafontaine also questioned whether Ms. Pim and Ms. Creeger had the skills to teach a child at Student’s level of deficits because they appeared to be significantly below those of the other children in the classroom. Facts, pars. 30, 66, 69, 75.
When Ms. Jones and Dr. Muzio visited the LLD classroom and observed instruction, they both observed Ms. Creeger (on separate days) giving reading instruction to the most skilled of the three reading groups. It is not disputed that this reading group would have been inappropriate for Student. It appears that both Ms. Jones and Dr. Muzio based their conclusions regarding the inappropriateness of the instructional level for Student, in large part, on the mistaken assumption that Student would be placed with this group of children for reading. Ms. Pim’s testimony was persuasive that Student would have been provided 1:1 reading instruction at his level, which was below all three of the reading groups in the LLD classroom. Facts, pars. 43, 62.
Although Student would likely have been the neediest child in the classroom that year with respect to his reading level and social deficits, the testimony of Ms. Pim and Ms. Creeger was persuasive that Student would nevertheless have likely made effective progress in this setting. All of the children in the classroom, including Student, were language disabled. Also, other children in the classroom would also have had social pragmatic deficits, as did Student, which were addressed within the classroom. I further note the extensive experience, in general, of both Ms. Pim and Ms. Creeger in teaching language learning disabled students, including children with Student’s types and severity of disabilities. Ms. Pim and Ms. Creeger would likely have been able to individualize their instruction to Student’s reading level, and to provide instruction at his level regarding writing and math. Facts, pars. 41, 43, 47, 50, 52, 55, 58, 61, 62, 63. For these reasons, I find that although the peer group was not ideal and would have presented certain challenges to the teachers, it is likely that the LLD classroom would have provided appropriate services to Student.
Sound and Symbols program . Ms. Lafontaine was critical of the fact that the LLD classroom would have used the Sound and Symbols program, rather than the Lindamood Bell program, to teach Student phonemic awareness. I do not doubt that Ms. Lafontaine, who presented as a highly informed speech-language pathologist, believes that the Lindamood Bell program would be ideal for Student and that it has proved effective; in fact, it may possibly have been the ideal program for Student. Facts, pars. 65, 66. Yet, Springfield is free to choose its own methodology so long as that methodology is likely to result in the student making the requisite educational progress.12 The testimony of Ms. Pim and Ms. Creeger was persuasive that the Sound and Symbols program is a credible and effective program, which can be used successfully with a child with Student’s profile. Facts, pars. 46, 57. For these reasons, I cannot fault Springfield’s use of the Sound and Symbols program in the LLD classroom.
Consistency of instruction between Ms. Pim and Ms. Creeger . Dr. Muzio was critical of what appeared to her to be inconsistency between Ms. Pim’s use of the Sound and Symbols program and Ms. Creeger’s use of the Lindamood Bell program. Dr. Muzio concluded that these different instructional strategies would require Student to make learning adjustments that would be detrimental to his educational progress. Facts, par. 75. Both Ms. Pim and Ms. Creeger are familiar with the Sound and Symbol program and the Lindamood Bell program, and they understand the importance of providing Student with integrated and consistent instruction. Facts, pars. 41, 46, 57, 58. I found the testimony of Ms. Creeger persuasive that Ms. Pim’s use of the Sound and Symbols program and Ms. Creeger’s use of parts of the Lindamood Bell program in her speech-language therapy are consistent.
Transitions . Ms. Jones was concerned about the number of transitions (five or six) which Student would be required to make if he were placed in the LLD classroom. Ms. Jones was aware of Student’s difficulties in this area as a result of spending time with Student in his home. Ms. Lafontaine also noted Student’s difficulty with transitions at Curtis Blake and stated her concern that it would be problematic for Student to make six or seven transitions at the Glickman School. Facts, pars. 30, 68.
I do not doubt that transitions (for example, from the LLD classroom to lunch and then returning to the LLD classroom) would have presented a challenge for Student and there would have been a risk of his becoming oppositional at times. However, I found the testimony of Ms. Pim persuasive that these kinds of transition difficulties are familiar to her (she testified that she has worked successfully with children with significantly greater transition difficulties) and it seems likely that with support and assistance from the LLD classroom staff, Student would have been able to work through these transitions successfully. Facts, par. 51. I also note that within Student’s program at the Curtis Blake Day School for the 2002-2003 school year, Student was required to make a number of transitions – for example, from the classroom to the cafeteria. Facts, par. 68. I have no basis to find that the LLD classroom would be inappropriate on the basis of the transitions that Student would have been required to make.
Change of placement from Curtis Blake to the LLD classroom . Dr. Muzio made clear her opinion that Student has made a successful transition from the Montessori School to the program at Curtis Blake, and that another change in placement is “clearly contraindicated at this time”. Similarly, she testified that transferring Student from the Curtis Blake Day School to the LLD classroom in October 2002 would not likely have been successful either academically or socially because of the stress on Student of such a transition. Facts, par. 77.
Given the appropriateness of the services at Curtis Blake, the likely disruption in educational progress as a result of a change in placement after approximately one and one-half months in school, and Student’s difficulty in general with transitions, I do not doubt that it was in Student’s best interests to remain at Curtis Blake Day School for the 2002-2003 school year once he had been placed there by Parents, rather than to have been transferred to the LLD classroom shortly after the October 16, 2002 Team meeting.
However, by placing Student at Curtis Blake prior to the beginning of Springfield’s school year, Parents essentially created the situation of their son’s having to make a transition back to the public schools in the event that Springfield proposed an appropriate placement unless Parents were prepared to pay for Curtis Blake and continue him there in any event. I have no basis to conclude that the transition would have been any easier or more difficult had Springfield convened the Team meeting in a timely manner, instead of on October 16, 2002. I also am not persuaded that the transition from Curtis Blake to the LLD classroom would have been so difficult as to preclude Student’s making meaningful and effective progress over the course of the 2002-2003 school year.
Mainstreaming of Student for lunch and other non-academic activities . Dr. Muzio recommended that, in light of Student’s social and emotional deficits (particularly in the area of self-esteem), Student not spend any time (even lunch) with typical peers. The LLD classroom would have provided all of Student’s academic instruction, but would have mainstreamed Student for lunch and other non-academic activities. Facts, par. 75. Although I do not doubt the expertise of Dr. Muzio in general, I find this particular recommendation unpersuasive. At the time of the October 16, 2002 Team meeting, Student had spent nearly his entire academic career (other than his initial month and a half at Curtis Blake) in a mainstream Montessori school. No one at the time of the October 16 th Team meeting had identified Student’s social and emotional deficits as so severe as to preclude even a modest amount of exposure to typical children in the mainstream educational environment. For these reasons, I do not find the recommendations of Dr. Muzio in this regard to be credible, at least with respect to Student’s identified needs as of October 16, 2002.
Conclusion . I find that the IEP proposed by Springfield for the period 10/16/02 to 10/15/03 would likely have provided for Student “an educational environment that can provide the comprehensive and multifaceted interventions that will facilitate progress in literacy” as recommended by Curtis Blake in its evaluation. Facts, par. 14. I further find that the proposed IEP was tailored to address Student’s unique needs in a way reasonably calculated to enable him to make meaningful and effective educational progress in the least restrictive environment, and was therefore appropriate.13
I now turn to alleged procedural violations by Springfield relative to the date its IEP Team considered the Curtis Blake evaluation.
B. Timing of the October 16, 2002 Team Meeting .
The state special education regulations, relevant to the timing of a Team meeting to consider an independent evaluation, required that Springfield’s IEP Team meet to consider the Curtis Blake evaluation within “ten school days” from Springfield’s receipt of that evaluation.14 The term “school day” refers to any day, including a partial day, in which students are in school for instructional purposes.15
Springfield received the Curtis Blake evaluation on June 26, 2002 which was after the end of the school year. It is apparent from the definition of “school day” (above), and the parties agree, that the ten-school-days time period began to run when Springfield resumed school in the fall, which was September 3, 2002. Springfield did not re-convene the Team to consider the Curtis Blake evaluation until the October 16, 2002 Team meeting, which was thirty school days after September 3, 2002, thereby violating the state regulatory procedural requirement by twenty school days. Springfield does not dispute this violation of the ten-day rule for convening the Team. Facts, pars. 27, 28.
Springfield’s Executive Officer for Special Education ( Ms. Hill) testified that once the Curtis Blake evaluation in May 2002 more completely described Student’s disabilities and needs, it was apparent that Springfield’s IEP for the period 4/25/02 to 4/25/03 did not provide for appropriate services to meet Student’s special education needs. Facts, par. 20.
Therefore, once the ten-day period lapsed for convening the Team and proposing the necessary changes to Student’s IEP, Springfield was out of compliance with its responsibility to propose appropriate services to Student. This lack of compliance continued for twenty school days, until October 16, 2002.
At the evidentiary Hearing, Springfield conceded the appropriateness of the Curtis Blake Day School as a placement for Student. Facts, par. 38. Therefore, during this period of twenty school days, Parents were entitled to place Student privately at Curtis Blake, as an appropriate school, and obtain reimbursement from Springfield for their out-of-pocket expenses .16
Springfield correctly points out that its failure to convene the Team meeting in a timely manner had no effect either on Parents’ decision to enroll Student at the Curtis Blake Day School or on the services received there. Student was placed at Curtis Blake and began school there prior to the start of Springfield’s school year. Since the services at Curtis Blake were appropriate for Student, there was no harm to Student. Since no harm occurred, Springfield argues that Parents are entitled to no relief. For the following reasons, I disagree.
The First Circuit Court of Appeals has explained when a parent may recover for a procedural violation:
When parents raise procedural claims, their injuries are likewise based on harm to their child; they cannot recover unless there is “some rational basis to believe that procedural inadequacies compromised the pupil’s right to an appropriate education, seriously hampered the parents’ opportunity to participate in the formulation process, or caused a deprivation of educational benefits.17
Courts have concluded that failure to hold a Team meeting in a timely manner may result in substantive harm.18
I find that Springfield’s failure to convene a Team meeting in a timely manner would have resulted in a deprivation of educational benefits and substantive educational harm to Student if Parents had not privately placed Student at the Curtis Blake Day School. Parents essentially undertook to arrange for their son what Springfield was legally required, but failed, to provide. Springfield should not be able to avoid responsibility for partial reimbursement of the placement at Curtis Blake simply because Parents took the initiative to meet their son’s educational needs. Rather, these are precisely the circumstances (where parents undertake to do what the school district has failed to do) that justify reimbursement.
For these reasons, I conclude that Parents are entitled to reimbursement from Springfield for their out-of-pocket expenses for twenty school days of their unilateral placement at Curtis Blake Day School during the 2002-2003 school year. For purposes of determining tuition expenses for twenty school days, the total tuition expenses for the 2002-2003 school year shall be multiplied by the following fraction: twenty school days divided by the total number of school days in the 2002-2003 Curtis Blake school year. For these purposes, the 2002-2003 school year is not intended to include any summer program.19
C. Notice by Parents of Intent to Privately Place Student at Curtis Blake .
The IDEA, and its implementing regulations, provide that parents are to give prior notice to
the school district of their rejection of the proposed placement and their intent to enroll their son or daughter in a private school at public expense, or, failing that, parents must meet one of the four exceptions to the notice requirement. The notice may be given orally at the last Team meeting prior to the parents’ removal of student, or alternatively may be given in writing at least ten business days prior to removal. Failure to meet these standards may result in reduction or denial of reimbursement of parents’ private school expenses.20
Here, the notice requirement was not met. Parents provided neither notice during a prior Team meeting nor notice in writing prior to removal. Facts, pars. 15, 16, 18, 19, 23.
Parents argue that Father’s telephone conversation with Ms. Hill, together with a letter seeking a Team meeting to address the Curtis Blake evaluations, satisfies the notice requirements. Facts, pars. 15, 16, 18, 19. Even were I to agree with Parents’ understanding of what actually occurred during the telephone conversation, and then conclude that the clear implication of Father’s remarks was that Parents would be placing Student at the Curtis Blake Day School because Springfield was not offering an appropriate placement in a timely manner, I would not find this sufficient. The IDEA and its implementing regulations explicitly require either prior oral notice during a Team meeting or prior written notice of intent to enroll a student in a private school at public expense. Neither requirement was met.21
Parents may avoid these requirements if Springfield had not informed them in writing of the notice requirements.22 The evidence on this point was that Springfield has a general practice of providing parents’ rights information, and that parents would normally be provided this information at various times required by the special education regulations – for example, when an IEP is sent out to parents. Facts, par. 21.
Prior to the change in Massachusetts special education regulations in January 2001, forms provided by the Mass. Department of Education provided a check-off box for the parent to indicate whether he or she received the special education Parents’ Rights Brochure. When Parent signed the consent for evaluation form on 11/23/99, she checked the box on the form indicating that she had received the Parents’ Rights Brochure and understood her parental rights. Similarly, when Parent signed an IEP on 1/27/00, she checked the box on the form indicating that she had received a copy of the Parents’ Rights Brochure. Facts, par. 21.23
This evidence creates a rebuttable presumption that Parents received the requisite written information regarding their obligation to provide notice to Springfield prior to privately placing Student.
Parents did not successfully rebut this presumption. Father’s testimony made clear that he did not know whether or not he had received the parents’ rights information. Also, by his own admission, Father’s memory was not particularly strong. Facts, par. 21.
On the basis of this evidentiary record, I am not able to make a finding that Parents did not receive written information regarding their responsibility to provide Springfield with the requisite prior notice. Parents are therefore not entitled to exemption from the statutory/regulatory notice requirement on this basis.
Parents may also avoid the statutory/regulatory notice requirements if compliance with the notice requirements would likely result in “physical or serious emotional harm” to Student.24 Parents argue that this standard is met because serious emotional harm would have occurred in the event that Student had been transferred out of Curtis Blake in order to attend the LLD classroom. However, Parents have not argued or alleged that harm would have occurred to Student as a result of Parents’ providing the requisite notice to Springfield, which is the focus of the statutory/regulatory exception.
For these reasons, I conclude that the exceptions to the notice requirements do not apply, and Parents were obligated to provide Springfield with prior notice of their intent to remove Student and place him at the Curtis Blake Day School. Parents failed to provide this notice, and, as a result, Springfield’s obligation to reimburse Parents may be reduced or denied.
The IDEA and its implementing regulations make clear that at this juncture, I have discretion as to whether Springfield’s obligation to reimburse Parents should be reduced and, if so, by how much.25 In making this determination, the equities are to be weighed.26
At the outset, I note the First Circuit’s explanation of the purpose of the prior notice requirement found within the IDEA and its implementing regulations:
This [prior notice requirement] serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a free appropriate public education can be provided in the public schools.27
It is apparent that Parents’ failure to provide prior notice to Springfield did not undercut this purpose. Because of the Curtis Blake evaluation, Springfield was already under a legal obligation to convene the IEP Team and determine Student’s needs and whether those needs could be met within the public schools. There is no indication in the record that had Parents provided the requisite prior notice, Springfield would have convened the IEP Team more quickly to determine whether Student could be appropriately placed within the public schools.
I note that Parents made clear their concern regarding Springfield’s failure to have in place an appropriate proposed placement prior to the beginning of the 2002-2003 school year. There is no indication that Parents sought, in any way, to hide from Springfield their concerns or intentions. On the other hand, Parents were working with a friend (Ms. Jones) who was aware of the prior notice requirements although Ms. Jones apparently never advised Parents of this requirement, and Parents consulted with an attorney regarding special education rights during the summer of 2002. Facts, pars. 16, 18, 19, 22.
I further note that Springfield provided bus transportation to Student for his first day of school at Curtis Blake, and therefore was aware of his placement there at that time. The first day of school at Curtis Blake was prior to the first day of school for Springfield. Facts, pars. 25, 26.
It should be emphasized that Springfield put Parents and Student in an extremely difficult position. Upon receipt and review of the Curtis Blake evaluation, it was apparent to both Springfield and Parents that Student had significant learning disabilities which had yet to be addressed appropriately. It was not disputed that Springfield’s then-current IEP for Student and its proposed placement were inadequate in light of the Curtis Blake evaluation that was received by Springfield near the end of June 2002. Facts, par. 20.
Yet, Springfield apparently made no effort to convene a Team meeting as quickly as possible.28 Instead, Springfield delayed the Team meeting until thirty school days after the beginning of the 2002-2003 school year. The Team meeting would likely have been further delayed had not Father obtained the assistance of the state representative after Springfield staff repeatedly did not respond to Father’s inquiries; the state representative convened a meeting with the Springfield superintendent; and the superintendent then directed Ms. Hill to convene an IEP Team meeting. Ms. Hill made clear that it was this directive that resulted in the Team meeting on October 16, 2002. Facts, pars. 27, 28. I find this conduct of Springfield to be egregious in light of the obvious and significant unmet needs of Student and the legitimate and clearly expressed concerns of Parents.
Finally and perhaps most importantly, I note that pursuant to this Decision, Parents are to be reimbursed only for twenty school days of out-of-pocket school placement expenses, reflecting Springfield’s failure to convene the IEP Team meeting in a timely manner as discussed above in part B of this Decision. The reimbursement award serves only to require Springfield to pay for what it should have provided Student in the first instance.
I find that these equities favor Parents in virtually all respects, and therefore I decline to reduce the reimbursement award.
D. Greenland School District v. Amy N .
In its written closing argument, Springfield relies upon the First Circuit’s decision in Greenland29 for the proposition that Parents are precluded from receiving any reimbursement for their private placement of Student at the Curtis Blake Day School. Springfield takes the position that Greenland precludes reimbursement because, at the time of Parents’ private placement to Curtis Blake Day School, Student was not receiving FAPE in Springfield’s public schools.
The principles enunciated by Greenland in this regard are somewhat unique in special education law, are complex, and have not been further elucidated or applied by the First Circuit. Their applicability to the present dispute needs to be carefully considered.
I begin consideration of the Court’s holding in Greenland by reciting the Court’s description of the issue in dispute:
At issue in this case is whether the parents of Katie C. are entitled to reimbursement from the Greenland, New Hampshire School District for Katie’s tuition at a private special-needs school, the Learning Skills Academy, for part of the fifth grade and all of the sixth grade. Katie’s parents sought tuition reimbursement after having unilaterally removed Katie from Greenland Central School at the end of fourth grade and placed her in private school, without ever before raising with Greenland school officials the issue of special education services for Katie .30
The Court summarized its reasons for denying tuition reimbursement as follows:
These threshold requirements are key to this case: tuition reimbursement is only available for children who have previously received “special education and related services” while in the public school system (or perhaps those who at least timely requested such services while the child is in public school). There is no dispute that neither Katie’s parents nor anyone else requested an evaluation for Katie while she was at Greenland. There is also no dispute that she was removed from Greenland for reasons having nothing to do with any issue about whether Katie was receiving FAPE. Whether some of the techniques used for Katie in the regular classroom (such as the use of checklists) may also be techniques used in special education is beside the point. The point is that there was no notice at all to the school system before Katie’s removal from Greenland that there was any issue about whether Katie was in need of special education .31
In its above use of the phrase “special education and related services”, the First Circuit is quoting from and relying upon 20 USC 1412(a)(10)(C)(ii). The full text of the statutory section is:
If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency , enroll the child in a private elementary or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment. [Emphasis supplied.]
The underlined statutory language (above) makes clear that the special education services must be provided under the authority of a school district but do not have to be provided while the student is enrolled in a public school. This distinction is particularly important in Massachusetts where the rights of a privately enrolled student to special education services is broader than under federal law.32 I also note that it is apparent that the phrase “special education and related services” may be understood, at least as applied to Massachusetts, as including those students who only receive related services, as compared to receiving both special education and related services. Eligibility for special education under Massachusetts law may result from the need for only related services, as compared to the federal law which requires that the student need special education services in addition to any related services.33
When the First Circuit’s language is read within this statutory context, it is apparent that the reimbursement limitations described by Greenland do not apply to the instant dispute. Relevant facts in the present dispute, which differ significantly from the facts noted by the First Circuit as important in Greenland , include the following.
Student received special education services from Springfield prior to his enrollment at the Curtis Blake Day School, both while attending a private Montessori School and while attending an integrated public pre-school (Brunton). Moreover, for several years prior to the 2002-2003 school year, Springfield was well aware of Student and his need for special education services; Springfield evaluated Student on several occasions (speech-language evaluation, psychological evaluation and reading evaluation); through its own evaluations, Springfield concluded that Student had substantial special education needs regarding reading, speech-language and developmental progress; and Springfield proposed a number of IEPs to address Student’s special education needs. In addition, two months prior to Student’s placement at the Curtis Blake Day School, Springfield received independent evaluations from Curtis Blake (which were approved and paid for by Springfield) that made clear both to Springfield and to Parents that Student had extensive needs for special education services which were not being addressed by Springfield’s then-current IEP.
Finally, I note that reimbursement in the present dispute is based upon Springfield’s failure to comply with its legal responsibility to consider the Curtis Blake evaluations and convene a Team meeting to recommend any changes in the IEP in a timely manner. Springfield’s responsibility in this regard is not diminished or otherwise changed by Parents’ private placement of Student at the Curtis Blake Day School, or by Parents’ previous private placements of Student at the Montessori School.
For these reasons, I am not persuaded that Greenland requires any adjustment in the reimbursement award, as discussed above in part B of this Decision.
Springfield shall reimburse Parents for their out-of-pocket expenses for twenty school days of their unilateral placement at Curtis Blake Day School during the 2002-2003 school year. For purposes of determining tuition expenses for twenty school days, the total tuition expenses for the 2002-2003 school year shall be multiplied by the following fraction: twenty school days divided by the total number of school days in the 2002-2003 Curtis Blake school year. For these purposes, the 2002-2003 school year is not intended to include any summer program.
By the Hearing Officer,
Dated: January 18, 2005
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL
Effect of the Decision
20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must obtain such stay from the court having jurisdiction over the party’s appeal.
Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).
A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appeals contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).
Rights of Appeal
Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).
Under Massachusetts General Laws, Chapter 30A, Section 14(1), appeal of a final Bureau decision to state superior court must be filed within thirty (30) days of receipt of the decision.
The federal courts have ruled that the time period for filing a judicial appeal of a Bureau decision in federal district court is also thirty (30) days of receipt of the decision, as provided in the Massachusetts Administrative Procedures Act, M.G.L. c.30A . Amann v. Town of Stow , 991 F.2d 929 (1 st Cir. 1993); Gertel v. School Committee of Brookline , 783 F. Supp. 701 (D. Mass. 1992).
Therefore, an appeal of a Bureau decision to state superior court or to federal district court must be filed within thirty (30) days of receipt of the Bureau decision by the appealing party.
In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
Record of the Hearing
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.
I have admitted exhibits P-14, P-15 and P-16 over Springfield’s objection. These documents are communications between Springfield and its attorney, and are protected pursuant to the attorney-client privilege. However, Springfield waived this privilege by its disclosure of the documents to Parents. It does not appear to be relevant that Springfield disclosed these documents without intending to waive the privilege. See, e.g., United States v. Mass. Institute of Technology , 129 F.3d 681 (1 st Cir. 1997).
Sandra M. Hill has been Springfield’s Executive Officer for Special Education since October 2000. Her duties include oversight of special education process and programs, as well as significant policy responsibilities, for the Springfield school district. Her testimony (and resume) indicate that she has substantial experience both as a special education teacher and as an administrator prior to her current position. Exhibit S-31 (resume). I found Ms. Hill to be a particularly candid and credible witness.
Pamela Jones has thirty years experience in special education, including as a teacher of students with moderate special education needs, as a school adjustment counselor and as coordinator of out-of-district special education placements for the Town of Agawam. She also has a master’s degree in reading. Ms. Jones is a family friend who has known Student since birth, and occasionally baby-sat for him. At all times relevant to this dispute, Ms. Jones was acting as a friend to the family.
20 USC 1400 et seq .
MGL c. 71B.
MGL c. 71B, ss. 1 (definition of FAPE), 2, 3.
For a more complete explanation of this standard and the legal authorities upon which it is based, see In re: Arlington , 37 IDELR 119, 8 MSER 187, 193-195 (SEA MA 2002). See also the following authorities not referenced in Arlington : Deal v. Hamilton County Board of Education, 104 LRP 59544 (6 th Cir. 2004) (“ IDEA requires an IEP to confer a ‘meaningful educational benefit’ gauged in relation to the potential of the child at issue”); 603 CMR 28.05(4)(b) (Student’s IEP must be “ designed to enable the student to progress effectively in the content areas of the general curriculum”); 603 CMR 28.02(9) (“ An eligible student shall have the right to receive special education and any related services that are necessary for the student to benefit from special education or that are necessary for the student to access the general curriculum.”); 603 CMR 28.02(18) (“ Progress effectively in the general education program shall mean to make documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to chronological age and developmental expectations, the individual educational potential of the child, and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district.”).
See, e.g., Knable v. Bexley City School District , No. 99-4326/4394, 34 IDELR 1 (6 th Cir. 2001) (district court erred in relying on the finding that school district had the capacity to offer the student an appropriate program; district court should have limited its assessment to the terms of the draft IEP document itself).
See, e.g., Roland v. Concord School Committee , 910 F.2d 983, 992 (1 st Cir. 1990) (IEP is a snapshot, not a retrospective. In striving for “appropriateness,” an 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.)
Florence County Sch. Dist. Four v. Carter ex rel. Carter , 510 U.S. 7, 15 (1993).
Dr. Muzio recommended that Student’s special education instruction be fully integrated across all parts of the curriculum, that there be consistency of instruction in all parts of the day, that Student’s curriculum would need to be modified in all areas, including science and social studies, that there should be systematic teaching of reading and language at Student’s precise academic level, that Student should be instructed by well-trained staff with a clear knowledge of the nature of the disability and the remediation needed, and that Student have a peer group that reflects his academic level. Facts, par. 74.
E.g., E.S. v. Independent School District, No. 196 , 135 F.3d 566 (8 th Cir. 1998) (“As long as a student is benefiting from her education, it is up to the educators to determine the appropriate methodology.”).
Had I concluded otherwise and determined that Springfield is liable for reimbursement of Parents for tuition at Curtis Blake Day School from October 16, 2002 through the end of the 2002-2003 school year, it is likely that the amount of tuition reimbursement would be reduced significantly or possibly denied altogether for failure of Parents to provide Springfield with the requisite prior notice, as discussed below in part C of this Decision.
603 CMR 28.04(5)(f).
603 CMR 28.02(5).
Florence County Sch. Dist. Four v. Carter ex rel. Carter , 510 U.S. 7, 15 (1993) (p arents entitled to reimbursement if the proposed public placement violated the IDEA and the private placement was proper under the IDEA).
Roland M. v. Concord Sch. Comm., 910 F.2d 983, 994-95 (1st Cir. 1990).
E.g., NL v. Knox County Schools, 38 IDELR 62 (6 th Cir. 2003) (internal quotations omitted):
a school district’s failure to comply with the procedural requirements of the Act will constitute a denial of FAPE only if such violation causes substantive harm to the child or his parents. Substantive harm occurs when the procedural violations in question seriously infringe upon the parents’ opportunity to participate in the IEP process. Knable, 238 F.3d at 765 (citations omitted) (emphasis added). In Knable, we concluded that failure to hold an IEP meeting constituted a substantive harm. Id. at 766-67.
Parents have not sought to obtain reimbursement on the basis of any compensatory education claims. In addition, I note that the First Circuit has cast doubt on the availability of reimbursement for services as appropriate relief in a compensatory dispute. Ms. M. v. Portland School Committee , 360 F.3d 267, 273-274 (1 st Cir. 2004).
20 USC 1412 (a)(10)(C)(iii) & (iv); 34 CFR 300.403 (c), (d) and (e).
The First Circuit has made clear the necessity of strict compliance with the statutory/regulatory notice requirements. See, e.g., Ms. M. v. Portland School Committee , 360 F.3d 267 (1st Cir. 2004); Greenland School District v. Amy N. , 358 F.3d 150 (1st Cir. 2004); Rafferty v. Cranston Public School Committee , 315 F.3d 21, 27 (1st Cir. 2002).
20 USC 1412 (a)(10)(C)(iv)(IV); 34 CFR 300.403 (e)(4).
As a result of the 1997 amendments to the IDEA, the notice requirements were in effect when Parents signed the consent form on 11/23/99 and the IEP on 1/27/00.
20 USC 1412 (a)(10)(C)(iv)(II); 34 CFR 300.403 (e)(2).
20 USC 1412 (a)(10)(C)(iii); 34 CFR 300.403 (d).
Ms. M. v. Portland School Committee , 360 F.3d 267 (1st Cir. 2004); Greenland School District v. Amy N. , 358 F.3d 150 (1st Cir. 2004); Deal v. Hamilton County Board of Education, 104 LRP 59544 (6 th Cir. 2004) and cases cited therein.
Greenland School District v. Amy N. , 358 F.3d 150, 160 (1st Cir. 2004) (citations omitted).
Springfield was under no obligation to convene a Team meeting until ten school days into the 2002-2003 school year. However, I am not persuaded by Springfield’s argument that it had no choice but to wait until then to convene the Team meeting. In her testimony, Ms. Hill listed a number of reasons to explain why Springfield would not be convening a Team meeting during the summer. Facts, par. 17. Her reasons are, essentially, that it would be difficult to do so and could, possibly, be impossible depending on the availability of various people over the summer. However, it is apparent that Springfield made the decision not to have a Team meeting without ever inquiring whether the necessary people were available, or whether other people might be able to substitute for the persons whom Springfield would normally want at the meeting (for example, Student’s ETL). Facts, pars. 16, 17. I find no basis to conclude that Springfield violated its legal responsibilities by refusing to convene a Team meeting during the summer, but I consider its level of interest and effort in convening a Team meeting as quickly as possible when weighing the equities.
Greenland School District v. Amy N ., 358 F.3d 150 (1st Cir. 2004).
Greenland School District v. Amy N ., 358 F.3d 150, 152 (1st Cir. 2004) (emphasis supplied) (footnote omitted).
Greenland School District v. Amy N ., 358 F.3d 150, 159-160 (1st Cir. 2004) (footnotes omitted) (emphasis supplied).
Compare 603 CMR 28.03(1)(e) with 34 CFR 300.454.
Compare 603 CMR 28.02(9) with 34 CFR 300.7(a)(1).