Sharon Public Schools – BSEA #02-1490



<br /> Sharon Public Schools – BSEA #02-1490<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re: Sharon Public Schools

BSEA # 02-1490

DECISION

This decision is issued pursuant to 20 USC 1400 et seq . (Individuals with Disabilities Education Act), 29 USC 794 (Section 504 of the Rehabilitation Act), MGL chs. 30A (state administrative procedure act) and 71B (state special education law), and the regulations promulgated under said statutes.

A hearing was held on December 17 and 19, 2001 in Malden, MA, before William Crane, Hearing Officer. Those present for all or part of the proceedings were:

Student’s Mother

Barry Mintzer Attorney for Sharon Public Schools

Jean Curtis Loud Director, Pupil Personnel Services, Sharon Public Schools

Gayle Winn Math Department Coordinator, Sharon Public Schools

Alison Friedman Math Teacher, Sharon Public Schools

Raymond Cashman Special Needs Teacher, Sharon Public Schools

Michelle Glynn School Psychologist, Sharon Public Schools

Meghan McCusker School Psychologist, Sharon Public Schools

Lisa Jolicoeur English Teacher, Sharon Public Schools

Yolanda Hyde Payroll Coordinator, Sharon Public Schools

Amy Strasnick Instructional Aide/Tutor, Sharon Public Schools

Stacey Popkin Instructional Aide/Tutor, Sharon Public Schools

The official record of the hearing consists of documents submitted by the Parents and marked as exhibits 1 through 33 (hereafter, Exhibit P-1, etc.); documents submitted by the Sharon Public Schools (hereafter, Sharon) and marked as exhibits 1 through 64, except exhibit 37 which was withdrawn by Sharon (hereafter, Exhibit S-1, etc.); and approximately ten hours of recorded oral testimony and argument. As agreed by the parties, written closing arguments were to be postmarked by January 8, 2001, and the record closed on January 14, 2001 by which date both closing arguments had been received.

ISSUES PRESENTED

1. Whether Sharon’s most recently proposed IEP (for the period October 4, 2001 to October 4, 2002) is reasonably calculated to assure Student’s maximum possible educational development in the least restrictive environment consistent with that goal, and, if not, what special education and related services should be ordered to meet said standard?

2. Whether Sharon has complied with its legal obligations to Student from the time period of the 1998-1999 school year through the present, and if not, what if any compensatory relief should be ordered?

3. If Student is entitled to relief, should that relief include (i) reimbursement for and/or prospective placement in the private tutorial program identified by Mother, (ii) a summer program sought by Mother, and/or (iii) monetary damages sought by Mother?

HISTORY AND DISPUTED IEP

Student currently attends 11 th grade at the public high school in Sharon, MA, where she lives with her parents. Student has a history of difficulties in academics, particularly during her first two years in high school and particularly in the area of math. Student also has certain emotional weaknesses, and has been receiving counseling. Testimony of Mother, Cashman, Glynn, McCusker.

In April 1995, when Student and her parents were living in the Freetown-Lakeville Public Schools District, this School District performed an educational evaluation which led to Student’s first IEP, which was for the period 6/9/97 to 4/9/98. Exhibits S-10, P-2. After moving to Sharon, Student attended the remainder of the 7 th grade at Sharon Middle School beginning in January 1998. Testimony of Mother.

Sharon’s first proposed IEP for Student was for the period March 1998 through March 1999. The IEP called for instructional support in the regular education classroom for 45 minutes each day; academic lab for 45 minutes each day; and counseling for 45 minutes, twice in each six-day cycle. On August 25, 1998, Mother accepted this IEP, except that she indicated that the instructional support should be for 45 minutes, twice each day. Exhibits S-2, P-4.

A Team meeting was next held on November 2, 1998, and a new IEP was drafted for the period March 1998 through March 1999 that provided for the same services as the previous IEP, except that the frequency/duration for counseling was left blank, and the comment section indicated that the counseling would be provided as needed. Exhibits S-3, P-6. Mother neither accepted nor rejected this IEP. She testified that she took this course of action because she believed that it would most likely result in the implementation of the previous IEP. Testimony of Mother.

An IEP was prepared for the period March 1999 through March 2000 which proposed services (under consultation) of counseling for 45 minutes, once per six day cycle and direct services of academic lab for 45 minutes, three times per six day cycle through 6/99 and for 55 minutes, three times per six day cycle of 9 th grade. Exhibits S-4, P-12. On June 28, 1999, Mother rejected this IEP (in part) seeking answers to certain questions and expressing concerns regarding language contained within the IEP but not objecting to the IEP’s proposed services. Exhibit P-33.

On July 6, 1999, a mediated agreement was entered into by Sharon and Mother, providing
for individual tutoring for 90 minutes, twice [per week],1 beginning in September 1999;

resource room services three days per six-day cycle; and counseling for one period per cycle. The mediated agreement states that it is “in effect from July 6, 1999 to June 30, 2000” and further provides that it “modifies the IEP and renders it accepted and in force.” Exhibit S-51.

The next IEP was prepared for the period October 5, 1999 to October 1, 2000, providing for services of academic lab for 83 minutes, four times in a six-day cycle. Exhibits S-5, P-21. Mother rejected this IEP. An amended IEP was prepared for the same period, providing for academic lab for 41 minutes, seven times in a six-day cycle; and counseling for 45 minutes, once during the six day cycle (with a comment indicating that the counseling would be during the academic lab). The amended IEP also references the mediated agreement pursuant to which Student is to receive two sessions per week of tutoring (one and one-half hours per tutoring session), and indicates that this tutoring is to continue through the 9 th grade year. Mother accepted this IEP in full on December 6, 1999. Exhibits S-6, P-22. Upon acceptance of this IEP, the IEP (including the referenced tutoring) essentially took the place of the mediated agreement for purposes of setting forth all of the special education and related services that were to be provided Student by Sharon. Testimony of Mother.

An IEP was then prepared for the period October 19, 2000 to October 18, 2001, providing for academic lab for 66 minutes, five times in a six-day cycle; and counseling for 30 minutes once in each six day cycle (with a comment indicating that the counseling would be during the academic lab). Exhibit S-7. When Mother did not consent to this IEP, an amended IEP for the same period and proposing the same services (but with different language describing the bi-monthly progress reports) was prepared. Mother accepted this IEP in full in March 2001, but she noted in her acceptance response that she would like Sharon to look into options for outside placement as Student is not doing well in large class settings. Exhibits S-8, P-25.

The most recent IEP was prepared for the period October 4, 2001 to October 4, 2002, proposing math tutoring for 40 minutes, twice in each six-day cycle; English tutoring for 40 minutes, twice in each six-day cycle; academic lab for 42 minutes, three times in each six-day cycle and adjustment counseling for 45 minutes, once in each six-day cycle. Under Student Strengths and Key Evaluation Results Summary appears the statement: “[Student] has a specific learning disability in the areas of math calculation and understanding math processes.” Under “Additional Information” the IEP further provides:

On October 4, 2001, the Team reviewed [Student’s] eligibility for services, development of an IEP, placement as well as compensatory services in response to [Mother’s] concern for past tutoring services.

The compensatory services will include individual one-to-one tutoring support in both mathematics and English and an increase in the amount of school counseling time.

On October 29, 2001, Mother rejected certain portions of the IEP, including the characterization of services as compensatory. Exhibits S-9, P-29. By subsequent letter to Dr. Loud dated November 21, 2001, Mother withdrew her partial acceptance of the IEP. Exhibits S-63, P-31. Notwithstanding the rejection of the IEP, Sharon is providing the services described in the IEP. Testimony of Loud.

STATEMENT OF THE EVIDENCE

· Mother testified that she first became concerned about Student’s academic, social, and emotional educational needs when she was in the 4 th grade. Mother stated that Student’s teacher reported that, at times, Student would have trouble concentrating and focusing on the task at hand, and she seemed to have difficulty remembering multiplication tables as well as fitting in with the other children. Mother testified that her daughter was shy, uncommunicative and immature; her anxiety level, at times, was overwhelming to her; her free time was spent reading, listening to music, drawing and playing with the dog and her birds; and she was seldom invited to birthday parties or play dates.

Mother testified that during 5 th grade, the same difficulties persisted. Mother explained that Student would become very frustrated when she couldn’t understand a certain concept; she would cry or get angry at herself, calling herself stupid; teachers reported that although Student was quiet and well behaved, at times she would act “inappropriately” in class, saying things out loud in an attempt to solicit friends. Mother stated that Student’s pediatrician suggested an assessment and she made that request to the School District.

Mother testified that testing was done and outside counseling was recommended, which Parents pursued. Mother explained that the Woodcock-Johnson Test of Achievement revealed that broad math, written language and knowledge were all consistent with grade norm, and broad reading was over baseline by two grade levels. Exhibit S-10. Mother testified that Student continued to produce average to below average grades and poor comprehension, with mounting frustration and anxiety; and she sat by herself in the lunchroom and was avoided by other children.

Mother testified that she requested testing again when Student was in 7 th grade, and after an independent neuropsychological exam, special education services were found to be appropriate for her.

Mother testified that in June 1997, she received Student’s first IEP and services were implemented to address Student and academic needs. Exhibit P-2. Mother explained that after moving to Sharon, Student attended 7 th grade at Sharon Middle School beginning in January 1998.

Mother testified that the TEAM meeting invitation for March 1998 (Exhibit S-36) was not received by her; nor did she receive any follow-up letters or phone calls; and she missed the TEAM meeting held in March 1998.

Mother testified that at the end of June 1998, she received the IEP from the March 1998 meeting; she gave her consent to services; and in addition she requested instructional assistance be twice per day, as recommended by Mr. Moriarty, instead of the once per day that was reflected on the IEP. Mother explained that the signed IEP was hand delivered to the School District during the third week of August (when she was able to arrange receipt of it by Sharon) as she did not want to mail sensitive, confidential information and have it misplaced or misdirected over the summer.

Mother testified that in September 1998, Student came home from the first day of school with a schedule that reflected no special education services. Mother explained that she made a call to school, and within a few days Student came home with a schedule that reflected honor classes but no special education services. Mother testified that Student complained that teachers were getting upset with her as she was missing work and/or couldn’t do the work asked of her; and Mother made another call to school, requesting a corrected schedule and a meeting with Student’s teachers.

Mother testified that on September 24, 1998 she met with Student’s regular education teachers, as well as the guidance counselor (Ms. Atwell); she explained the scheduling foul-up and asked their patience while the situation was being corrected; and she explained what Student’s needs were, as no teacher knew that Student had special needs. Mother testified that she expressed her willingness to assist them in whatever they felt was necessary to help Student succeed.

Mother testified that Student received her schedule (Exhibit P-5) reflecting resource room twice per cycle and no counseling. Mother stated that the instructional aide assigned to Student in regular academics would seldom take the initiative to assist Student. Mother testified that counseling notes indicate that counseling would focus on helping Student take the initiative with respect to schoolwork. Exhibit P-3B. Mother stated that Student was told to stay after school for extra help, which she did two to three times per week.

Mother testified that during several phone calls with Ms. Kilbride, Mother was told, in effect, that counseling would begin, that resource room support would be increased as soon as possible and that Student was doing fine.

Mother testified that she received the revised IEP (Exhibit P-6) mid-November 1998; and she immediately phoned Ms. Kilbride and asked for justification for this new plan — who had recommended the cut in services and why? Mother testified that she was not invited nor did attend a meeting during which this IEP was discussed; there were no teacher assessments recommending service cuts; and Student’s grades were all failing even with staying after school for extra help two to three times per week. Exhibit P-13A.

Mother testified that in a meeting that she requested with the Middle School Principal (Dr. Holmes), she began the meeting with a statement that there was a consensus that Student was doing poorly in school; she informed Dr. Holmes that there was little to no compliance with Student’s IEP and perhaps she could look into the situation. Mother testified that Dr. Holmes stated she would discuss the situation with Dr. Doyle.

Mother testified that in February 1999, she received a request for permission for the District to conduct a standard three-year re-evaluation, and she denied this request because this request made in error (as Student’s re-evaluation date was March 2000), and because she was concerned this was another attempt by the School District to justify the denial of services.

Mother testified that she was never notified of the March 1999 meeting but learned of it by chance from one of Student’s teachers. Mother stated that the meeting started off with Dr. Holmes informing those present that Student was one of her most “needy” students and should be seeing a psychologist; recommendations were made for resource room and counseling at the High School. Mother testified that she explained at the meeting that appropriate services were not being delivered to her daughter and informed Dr. Holmes that if all services per the signed IEP were not delivered immediately, she would be contacting the Superintendent’s office.

Mother testified that at this time it was becoming extremely difficult to motivate Student to want to go to school. Exhibit P-13A (reflecting eight 4 th quarter absences).

Mother testified that in April 1999, an additional academic lab period and one session of counseling per cycle were added to Student’s schedule. Exhibit P-10. She stated that a progress report from Ms. Simmons (Exhibit P-11) was indicative of the confusion and mixed messages she was receiving — in her report of June 30, 1999, Ms. Simmons indicates not only the wrong services but that Student has achieved her goal of refraining from behaviors which may distract others (Ms. Simmons notes Student to be focused and exhibiting few distracting behaviors). Mother explains, however, in Mr. Smith’s report of May 28, 1999 (Exhibit P-9C), he indicates that Student constantly disrupts the class with inappropriate comments and/or questions, keeping other students from doing their work.

Mother testified that Student failed the math, history and science MCAS in the spring of 1999 and was shown to need improvement in English (Exhibit P-13B), a subject that two years prior, she was two years above grade level.

Mother testified that during the time period of September 1998 through June 1999 pursuant to Student’s IEP, she was to receive individual counseling twice in each six-day cycle but only four individual counseling sessions were provided, leaving 65 counseling sessions that were not provided but should have been under the IEP. She explained that her conclusion is supported by the lack of any individual counseling to be provided pursuant to Student’s schedule for the first three (of four) terms for the year (Exhibit P-5), that individual counseling was to be provided once per cycle on the Student’s schedule for the fourth quarter (Exhibit P-10), and that even after the beginning of the fourth term, the counselor (Ms. Perrier) was initially not available and therefore did not begin to provide counseling until part way through the term. Mother explained that her best recollection is that individual counseling was provided only four times during this academic year.

Mother testified that from September 1998 through June 1999 there should have been instructional assistance to Student twice each day pursuant to her IEP, but that it was only provided once per day. She explained that this conclusion is supported by Ms. Simmons’ Progress Report (Exhibit P-11) which reflects instructional support six times in a six-day cycle so that she should have received instructional assistance in 400 class sessions (45 minutes each session). Mother concluded that there were 180 hours of missed instructional assistance. Mother also testified that her daughter told her that “usually” there was an aide in her class.

Mother testified that during this time period, an academic lab was supposed to be provided to Student once each day for 45 minutes pursuant to the accepted IEP, but initially the academic lab was not on Student’s schedule, then her schedule included it but only twice each six-day cycle (Exhibit P-5) and finally for the fourth term, the schedule was revised to include it three times each six-day cycle (Exhibit P-10). She concluded that Student missed 126 periods of academic lab of 45 minutes each.

Mother testified that she and Dr. Doyle exchanged numerous letters (Exhibits P-15A, P-15B, P-15C, and S-44) in regards to a “compensatory gesture” by the School District (referenced in Exhibit P-15A). Mother explained that Sharon offered tutorial services “solely for compensatory reasons related to the level of academic support in regular education as indicated in the partial rejection of the last IEP” (Exhibit P-15B) and for “failing to notify BSEA regarding a partial rejection of the IEP on 8/25/98” (Exhibit P-16, item 2).

Mother testified that on May 25, 1999, she received the IEP from the March Team meeting (Exhibit P-12); the IEP provided for counseling on a “check-in” basis, which Mother thought inappropriate for a child with no self initiative, self advocacy or self monitoring skills; and the resource room was to be three times per cycle, which Mother did not feel was sufficient to address over 14 IEP goals (such as objective 4.1.1 solving problems involving decimals, fractions, percentages and positive and negative integers with 90% accuracy). Mother explained that Student still did not have a firm grasp on multiplication tables, and she hired a tutor privately to provide some help to Student.

Mother testified that on or about June 28, 1999, she returned the IEP as rejected, with a letter requesting information, requesting an art class for Student and requesting a change in the starting dates of services.

Mother testified that in the beginning of July 1999, she was “desperate” to resolve this matter, as communication between her and the school had broken down and Mother did not know what services would be provided in September. Mother explained that at the suggestion Ms. Brady (education specialist at the Program Quality Assurance office of the Mass. Department of Education), she pursued mediation as an alternative to complaint resolution or a hearing.

Mother testified that on July 6, 1999, she and Dr. Doyle met, with the assistance of a mediator (Patrick Davis), and it was decided there would be 3 hours a week of tutoring to clarify and reinforce all academic areas, especially long term project planning. Exhibit P-17A.

Mother testified that her understanding of the mediated agreement, as well as the IEPs which she signed (except for the most recently-proposed IEP which explicitly references compensatory services) is that the mediated agreement and IEPs addressed only current and prospective special education needs and did not address or otherwise provide compensatory services for alleged past violations by Sharon.

Mother testified that during the first week of school in September 1999 (9 th grade), she spoke with Ms. Bellao who had not yet found a tutor; and by the end of September, she was informed that Ms. Popkin (an instructional assistant in Student’s resource room) would be working with Student.

Mother testified that in September 1999, Mr. Cashman did an educational evaluation of Student (Exhibit P-19A) to compare with a previous evaluation in 1995 (Exhibit S-10). Mother explained that the 1999 evaluation demonstrated that Student’s math scores had gone from grade level in 1995 to more than 2 grades below grade level, her broad knowledge had dropped to 1 grade level below grade level, and reading went from 2 grade levels above grade level to grade level. In the report, deficits were noted in basic writing skills and the use of punctuation, and the evaluation stated “Student needs to be seated near the teacher-away from any distracting sounds or noises” and reinforcement or review of knowledge is recommended prior to start of a lesson. Exhibit P-19A.

Mother testified that Dr. Bernheimer did a psychological evaluation which revealed that Student’s difficulties are genuine, and they stem from a combination of factors. The evaluation showed that comprehension and picture arranging subtests had declined significantly since 1995. Dr. Bernheimer’s evaluation further states that Student demonstrates significant social and emotional vulnerabilities, and recommended continued in-school support, as well as continued support in math.

Mother testified that a teacher assessment of Student (by Ms. Lima, Student’s teacher) reported that “it’s hard to gage accurately her academic abilities as her emotional concerns are so predominant.” Exhibit P-20.

Mother testified that in November 1999 (9 th grade), she received an IEP (Exhibit P-21), which called for the academic lab seven times per 6 day cycle and counseling once per cycle. It also stated under a separate agreement Student was to have 3 hours of tutoring per week. Mother accepted the IEP in full on November 26 th .

Mother testified that on or about the 1 st week in December, Ms. Popkin informed her that she would be unable to continue tutoring Student and at the end of January 2000, Mother was informed that Ms. Strasnick would be tutoring Student. Mother explained that at first the tutoring was three times per week for one hour, but because of time constraints the tutor had to cut Student back to twice per week for one hour each session. Mother testified that in May or June 2000, she spoke with Dr. Doyle and asked him if the tutoring agreement could be extended as some time was missed, and Student seemed to benefit from the tutorial; he agreed. Mother testified that there were some sporadic sessions over the summer, and two one-hour sessions in September and one or two in October 2000. Mother explained that Ms. Strasnick informed her that Ms. Strasnick could no longer tutor Student, and Mother notified Dr. Doyle who said that he would take care of it.

Mother testified that compensatory tutoring services were due her daughter pursuant to the mediated agreement and subsequent IEP which referenced the mediated agreement. She explained that the agreement (and IEP) require that three hours (two sessions of 90 minutes each) of tutoring were to be provided each week, with the result that 120 hours of tutoring were due Student for 40 weeks (which does not include school vacations) for the period September 1999 through June 2000. Mother explained that her records indicated that 25 tutoring sessions were missed during this time period, at 90 minutes per session, or 37 ½ hours of tutoring. Mother stated that she based these calculations on her records that Ms. Popkin provided 26.5 hours of tutoring and Ms. Strasnick provided approximately 45 hours of tutoring. Mother also stated that her concern with the tutoring was not the quality of the tutoring that was provided but rather the failure to provide the requisite number of hours of tutoring. She noted that after a meeting on September 10, 2001, Dr. Loud offered to provide these 37 ½ hours of tutoring as compensation in order to resolve the pending dispute, but Mother declined to settle her dispute on this basis.

Mother testified that there was a TEAM meeting in October 2000 (10 th grade), and an IEP was developed which was signed and returned by her.

Mother testified that she spoke to Dr. Doyle as late as January 2001, and tutorial services were to be forthcoming. Mother noted that Student’s grades were C’s and D’s, although Student found significant interest in biology, had an extremely supportive teacher and was getting A’s and B’s in the class.

Mother testified that in April 2000, the 10 th grade MCAS were given, and Student received a score of 218 on the math portion of the MCAS. Exhibit P-30B.

Mother testified that in March or April 2000, Student informed her that when a teacher was available, Mr. Cashman would pull her out of resource room to work with the teacher. Mother testified that Mr. Cashman explained to her that he was concerned about the level of support he could offer in the resource room, and they discussed the need to have Student work one to one with a math teacher and they discussed downgrading resource room to a minor (three to four times per cycle), as Student expressed she wanted to take an art elective.

Mother testified that she had realized that the tutorial agreement would not be fulfilled as written, but hoped the new administration would review what had transpired over the last three years, and see the need for what was appropriate; she therefore contacted the new special education director (Dr. Loud) in mid to late August 2001.

Mother testified that on September 10, 2001, she met with Dr. Loud. Mother noted that Mr. Cashman shared that he was concerned over the level of support that the resource room could offer Student; due to the class size and the needs and demands of other students, he could seldom spend quality time with her (Student is to be seated away from noises and distractions), and his recommendation would be one-to-one tutorial in math for the upcoming TEAM meeting. Exhibit P-28A.

Mother testified that she does not believe that Student’s math goals, as reflected in her October 2000 IEP (Exhibit S-8), are being met appropriately although she agrees that the services described in the IEP (regarding these goals) were provided. Mother explained that her concerns regarding math are based on her daughter’s performance on MCAS for math (failing the most recent test by two points), her PSAT scores on math and her difficulty regarding math at school.

Mother testified that on October 4, 2001, a TEAM meeting was held and she addressed some of her concerns with the teachers, including allowing Student to test in an alternate classroom, if need be. Mother testified that the teachers’ progress reports were that Student was a polite, diligent, creative student with a solid work ethic, although she was uncommunicative; Mr. Cashman’s recommendation was read, along with a statement from a math teacher stating Student was doing very well. Mother stated that goals were to be self-advocacy and assertiveness, improved math skills and written language, as well as the study and organizational skills and daily academic reinforcement; the specific math areas would be determined by the MCAS results and the math department; one-to-one tutoring for math and English was to be provided in two half-hour sessions each cycle, as a pull out from the resource room.

Mother testified that on October 19, 2001, she received the proposed IEP, and in it, the School District had addressed the in-school one-to-one tutorials as compensatory and increased counseling by fifteen minutes per cycle “in consideration of compensatory services”. Exhibit P-29. Mother explained that she believed that this plan did not address the private tutorial issue or appropriate compensatory services. She further explained that the proposed IEP reduced Student resource room instructional time to less than 55 minutes per 6-day cycle, with the other minutes the 15 minutes left over each day at the end of tutoring and counseling, which is barely enough time for Student to walk from one end of the school to the other. Mother opined that the 55 minutes every six days in a class with 8 to 12 students of different grade levels and needs was hardly appropriate to address study and organizational skills, including planning and implementing long term assignments, as well as clarifying and reinforcing daily academics. Furthermore, she noted that the class is noisy and frenetic, impeding Student concentration and comprehension. In addition, she noted that under this IEP, Student could not taking an art elective, as resource room is a major, and to deny that in an attempt to satisfy the compensatory issues was not acceptable. Mother explained that after giving the matter much thought, she rejected the IEP by withdrawing her signature. Exhibit P-31.

Mother testified that Student’s PSAT scores reflected the 2 nd percentile in math, with comments indicating a need to improve basic concepts and operations in arithmetic problem solving and to apply rules in algebra and geometry. Exhibit P-32. Mother further explained that the results of her math MCAS was a failing grade of 218 (Exhibit P-30B); her report card shows a grade of B+ in math for the first term Exhibit P-30A. Mother stated that Student has not and is not being taught math in a practical, appropriate manner consistent with a way she can learn and apply the skills; the goals and objectives from the March 1999 IEP have not been properly addressed or accomplished (specifically objectives 4.1.2.3 and 4.1.4); and the measurable annual goals in the currently proposed IEP will not be met unless there is appropriate implementation of instruction by qualified personnel. Mother also explained that the in-school math tutor is not certified in special education.

Mother testified that since November 9, 2001, the individual tutoring in English has been “a little inconsistent” since the teacher apparently forgot to provide the tutoring on two occasions.

Mother testified that, in her opinion, the most appropriate plan for Student at this time would be to pull Student out of regular education math class, and have her work with a special education certified teacher with diagnostic/prescriptive training, and a math degree, until Student has a firm, basic skill foundation and the ability to apply the learned skills in a testing or practical situation. Mother further explained that the basic concepts and problem solving reinforcement could be integrated with geometry, algebra I and II (current curriculum) to prevent Student from falling any further behind.

Mother testified that having Student sit in a math class that is not or can not meet her needs is inappropriate and frustrating, and it is inappropriate and discriminatory to attempt to have her needs met by pullout to a transitional class (a class that is not designed for special needs students). She noted that at the pre-hearing conference, School District staff defined the transitional class as appropriate for students with extended absences, or problems that may cause them to miss class.

Mother testified that Student’s English teacher has demonstrated that she is experienced, knowledgeable and caring; she has developed a wonderful rapport with Student; and if she is apprised of Student’s specific needs in regards to verbal and writing skills, she could assign work or modify homework, to hone the development of these skills. Mother noted that skill development could also be monitored through any compensatory services allowed.

Mother testified that she has not been dissatisfied with the IEPs which she has signed, but rather her dissatisfaction is with their implementation (or lack of implementation).

Mother testified that she is asking for reimbursement of the tutorial program that she has contracted for (Exhibit P-1) in light of the failure to provide an appropriate education during the 1998-1999 school year and the lack of meaningful and appropriate remediation, as well as the failure to implement appropriate services to assist and enable the accomplishment of math goals. Mother also stated that she is requesting reimbursement for parent-provided transportation by car, and is requesting a summer camp or program at the District’s expense to improve Student social skills and foster emotional development to compensate for the failure to provide over 65 counseling sessions. Finally, Mother requests that art be a component of the summer program, as Student has had to forgo an elective this year.

· Stacy Popkin testified that she is currently employed by Sharon to work with Student in the resource room. She explained that Student is quiet and does not participate much, typically sitting by her self and not seeking out assistance from others. Ms. Stacy testified that occasionally she asks Student if she would like individual assistance, and Student typically responds that she does not need any help. She explained that there are six children in the resource room, and noted that the resource room is not particularly noisy – there is the normal noise from the various activities going on in the room.

Ms. Popkin testified that from September 29, 1999 through December 5, 1999, she went to Student’s home to provide Student with individual tutoring. She explained that she terminated the tutoring abruptly (on December 5 th ) when she learned of a family illness that required her time and attention, making it no longer possible for her to tutor Student. She also explained that she went to Student’s home (rather than providing the tutoring at school) because Student preferred not to be in school any more than necessary. She noted that Mother never expressed dissatisfaction with the tutoring, and that at times, Mother expressed her satisfaction regarding the tutoring.

· Amy Strasnick testified that she provided individual tutoring for Student from January 8 (or 9), 2000 until some time in June, approximately three weeks before the end of the school year. She noted that in addition to the tutoring sessions which were paid for by Sharon, she provided additional tutoring time as a “kindness” to Student although she was unsure how much additional tutoring time was provided. She noted that the tutoring occurred in her (Ms. Strasnick’s) home. She explained that she quickly developed a positive relationship with Student during the tutoring sessions and that Mother was extremely grateful for the tutoring. She also explained that Student did very well in the tutoring, making educational progress.

· Raymond Cashman testified that he has been a special needs teacher at Sharon since 1972, and has been Student’s resource room teacher and her liaison since 9 th grade. He stated that there are six children in the resource room.

Mr. Cashman testified that he has a “great” relationship with Student. He explained that he has never found her unwilling to attend the resource room, he believes that she has a solid work ethic and he has found that she asks him for assistance as needed. He further testified that she has made very good progress during her three years (9 th , 10 th and 11 th grades) at the high school, particularly in light of her academic difficulties during 9 th grade and her overcoming these difficulties last year and this year.

Mr. Cashman testified that, as he observed in his evaluation of Student in 9 th grade (Exhibit P-19A), Student does have a “weakness” in math. However, he further explained that, in his opinion, the services that Student is now receiving from the high school (including math tutoring) are meeting her academic needs, including her needs in math.

· Alison Friedman testified that she is employed as a math teacher at Sharon, and she is currently Student’s intermediate algebra teacher. She explained that Student is doing very well, is able to absorb the material and has an overall B average (including a grade of B for the first term). Ms. Friedman stated that she has spoken with Jared Sprague, the instructional assistant for Student in math this year. Ms. Friedman testified that in her opinion Student does not need any additional math instruction (beyond what Student is currently receiving from Ms. Friedman and Mr. Sprague) in order to be successful in her math class this year. Ms. Friedman also stated that math is a “cumulative” subject and therefore if a child is doing well in math currently, the child would have had to understand the math concepts and skills which were previously taught and upon which the current material relies. See also Teacher Observation Report of 10/3/01, Exhibit S-30.

· Gayle Winn testified that she is a math teacher at Sharon and that last year she was Student’s geometry teacher. She explained that Student passed geometry with an overall grade of C-. She stated that she agrees with Ms. Friedman’s opinion that math is a “cumulative” subject and therefore if a child is doing well in math now, the child would have had to understand the math concepts and skills which were previously taught and upon which the current material relies.

· Lisa Jolicoeur testified that she is an English teacher at Sharon and currently is Student’s junior year teacher for her college-preparatory English course on American literature. She stated that Student’s reading comprehension is slightly above average, her writing skills are good, but she has a weakness in the areas of punctuation, capitalization and overall editing skills. She noted that Student does not like to speak during class but approaches Ms. Jolicoeur with any questions after class. See also Teacher Observation Report of 10/3/01, Exhibit S-32.

Ms. Jolicoeur testified that Student is making significant progress in English and is likely to continue to make significant progress. She stated that, in her opinion, Student is not in need of any additional academic services beyond what she is currently receiving at the high school.

· Michelle Cashman Glynn testified that she first came to know Student in January 1998 when, as a school psychologist intern, she began seeing Student in counseling sessions once or twice each cycle, and this continued through Student’s 7 th grade. Exhibit S-14. She explained that she did not see Student in 8 th grade, but beginning in Student’s 9 th grade year (September 1998), she was hired as a school psychologist and worked with Student as her counselor in 9 th and 10 th grades, seeing her once per cycle.

Ms. Glynn testified that during 9 th and 10 th grades, she worked with Student on issues of self-esteem, confidence, relations with peers and self-advocacy. Ms. Glynn stated that compared to where Student started regarding these issues, she made “remarkable” gains with respect to increasing her confidence, reducing anxiety, being less impulsive and improving her ability to relate to peers and teachers. She explained that Mother has indicated to her how pleased she has been with Ms. Glynn’s work with Student.

· Meghan McCusker testified that she is a school psychologist employed by Sharon and in that capacity is currently working with Student, providing counseling to Student once per cycle. She explained that she is working with Student more on social than academic issues. Ms. Glynn stated that Student has indicated to her that so far this year she feels “pretty competent” in her academics.

· Yolanda Hyde testified that she has been employed by Sharon as its payroll coordinator since September 1998 and in that capacity processes the payroll paperwork and otherwise handles Sharon’s payroll. She explained that her responsibilities include reviewing payroll paperwork for accuracy and completeness (including appropriate signatures). She also explained that the general procedure regarding payment of an employee for extra work (for example, tutoring after school) is for the employee to fill out a form, the form is then submitted to his/her supervisor for review and signature, and the form then is sent to Ms. Hyde for processing.

Ms. Hyde testified (after being shown certain payroll forms by Mother at the Hearing, Exhibit P-17B) that the payroll forms for payment for tutoring by Ms. Popkin have the requisite two signatures and the processing stamp, as compared to the forms shown to her for Ms. Strasnick which did not have the supervisor’s signature or processing stamp. Ms. Hyde explained, however, that she would not have processed Ms. Strasnick’s forms that were shown to her since they did not include a supervisor’s signature. She further explained that she believed that the forms (from Ms. Strasnick) which were processed and resulted in payment, had the requisite signatures. She testified that for the period of January 2000 through October 2000, Ms. Strasnick was paid by Sharon a total of $2,140 for 53.5 hours of tutoring.

· Request for Payment forms of Sharon indicate that Stacy Popkin provided tutoring services to Student for a total of 26.5 hours from 9/29/99 to 12/8/99. Request for Payment forms of Sharon relevant to Amy Strasnick were signed by Ms. Strasnick but not by the Sharon Director of Pupil Personnel. Exhibits S-55, P-17B.

Sharon later introduced copies of Ms. Strasnick’s forms that were signed by the Sharon Director of Pupil Personnel, together with an affidavit of Ms. Hyde attesting that the forms are true copies. These forms indicate that Ms. Strasnick provided tutoring services to Student for a total of 53.5 hours from 1/9/00 to 6/8/00. Exhibit S-64.

· The parties stipulated that currently the rate paid by Sharon for tutoring services after school is $22.50 per hour, unless a higher rate needs to be negotiated because of an inability to obtain a tutor at the rate of $22.50 per hour.

· Dr. Loud testified that she has been Sharon’s Director of Pupil Personnel Services since July 1, 2001.

Dr. Loud testified that her understanding of the mediated agreement between Sharon and Mother is that it addressed and resolved Mother’s compensatory claims. She explained that the mediated agreement was in response to Mother’s rejection (in part) of an IEP (Exhibit S-2) which Sharon sent to the BSEA.

Dr. Loud testified that when Ms. Hyde reviewed the time sheets for tutoring, Ms. Hyde found time sheets that reflected more tutoring hours than had been referenced by Mother.

Dr. Loud testified regarding her (and the Team’s) understanding of the language addressing the compensatory nature of the IEP services with respect to Student’s most recently proposed IEP (Exhibit S-9). She stated that their understanding is that the compensatory part of the counseling services was an increase from 30 minutes to 40 minutes, once in each six-day cycle; and the compensatory part of the individual tutoring related to the quality and nature of the tutoring, rather than the amount of time of the tutoring. She explained that the Team believed that Student had made good progress and wanted all of the services to be reflected in the service delivery grid of the IEP to ensure that they would be provided. Testimony of Loud.

Dr. Loud testified that she believes that the most recently proposed IEP would provide Student with special education and related services to address her needs.

Dr. Loud testified that she reviewed the academic calendar for the school year 1999-2000 and determined that there were 180 days in the school year (excluding weekends, holidays and vacations). She stated that by dividing 180 days by 5, she reached the conclusion that there were 36 weeks in this school year.

Dr. Loud testified that she understood that the tutoring provided to Student during the 1999-2000 school year may have been somewhat “spotty” and therefore sought to determine through payroll records what tutorial services were actually provided so that any compensatory services due Student could be offered to her. She also explained that she was concerned about possible missed counseling sessions during the 1998-1999 school year, but has not tried to substantiate what services were actually provided. She explained that she had not looked into Mother’s concerns regarding alleged failures to provide instructional assistance and academic labs in the 1998-1999 school year.

· An educational evaluation in April 1995 by Marc Weiner, Ph.D., School Psychologist of the Freetown-Lakeville Public Schools, concluded that Student has intact academic skills with no evidence of a learning disability. Broad math testing score reflected a grade equivalent of 5.4 (Student was in the 5 th grade when she was evaluated). The testing suggested emotional factors are reducing her ability to effectively function to the extent of her skills, manifesting agitation, inconsistent work habits, as well as a pattern of passive and aggressive behaviors in dealing with her environment. The evaluation recommended outside counseling “to deal with these long standing emotional issues and behaviors at home.” Exhibit S-10.

· A personality and cognitive assessment of Student by Richard Vinacco, Psy.D. on May 1, 1997 occurred as a result of a referral by Mother. Dr. Vinacco concluded that Student experiences painful introspection, low self-esteem and loneliness, and she feels unempowered to positively effect change in her life or her future. Exhibit S-12.

· A psychological evaluation on 9/16/99 and 10/1/99 (9 th grade) by Joan Bernheimer, Ph.D., Clinical Psychologist was conducted by Sharon in accordance with the terms of the mediated agreement between Mother and Sharon. The evaluator found a history of difficulty with math (failing math in 5 th and 7 th grades) and Student identified this area as the one where she struggles the most. The evaluation (which included the Wechsler Intelligence Scale for Children – Third Edition) found that Student continues to demonstrate “weaknesses” in math and this area warrants continued support, but the evaluation also found that all skills now fall in the average range, with Student having made “some nice gains” since she was evaluated in 1995. The report further concluded that Student has experienced “much growth and improvement” in the social and emotional areas, but nevertheless continues to demonstrate significant social and emotional vulnerabilities. Continued in-school support was recommended to decrease impulsivity and reactivity, increase ability to engage in thoughtful, pro-active problem-solving and increase ability to engage in adaptive conflict resolution. Exhibit S-27.

· An educational evaluation was conducted on September 30, 1999 by Raymond Cashman, MEd, in the beginning of Student’s 9 th grade. (Mr. Cashman has been Student’s resource room teacher and her liaison since 9 th grade.) The evaluation included the administration of the Woodcock-Johnson Psycho-educational Battery (Revised) Tests of Achievement. Mr. Cashman’s report concluded that Student’s performance, as compared to others at her grade level, is high average in Basic Reading Skills and Reading Comprehension; average in Mathematics Reasoning, Broad Written Language, Basic Reading Skills and Broad Knowledge; and low average in Basic Mathematics Skills (comparable to the average student in grade 6.7). The report recommends a variety of classroom accommodations and makes no reference to a need for additional educational services. Exhibit P-19A.

· A teacher assessment for math (algebra 1) by Student’s teacher (R. Lima) on October 5, 1999 indicates that Student seems to be comfortable with the new material being taught. The assessment indicates that much of Student’s difficulties come from “poor basic math skills”. The teacher noted that she had arranged for Student to seek extra help (both from this teacher and from the resource room) with her basic math skills. Exhibits S-24, P-20.

· Student’s report card for June 1998 ( 7 th grade ) indicates grades in the D range, except for two C grades. Exhibit P-3A. Student’s report card for June 1999 ( 8 th grade ) indicates six grades in the D range, one grade of C- (English), one grade of B + (theatre) and one grade of A + (art). Exhibit P-13A. Student’s report card for June 2000 ( 9 th grade ) indicates five grades in the D range, one grade of C- (world history), and two grades of P (academic lab and physical education). Exhibit P-24A. Student’s report card for June 2001 ( 10 th grade ) indicates one grade of D + (history), two grades of C- (English and geometry), one grade of B- (art), one grade of B + (biology), and three grades of P (academic lab, issues for youth and physical education). Exhibit P-26A. Student’s report card for November 2001 ( 11 th grade ) indicates for the first quarter one grade of B- (English), one grade of B (history), one grade of B + (algebra II), two grades of A (chemistry and Spanish) and grade of P (academic lab). Exhibit P-30A.

· MCAS test results from the spring of 1999 (8 th grade) indicate that Student received a score of 208 (within the failing range) in math and a score of 238 (within the needs improvement range) for English language arts. Exhibits S-23, P-13B.

· MCAS test results from the spring of 2001 (10 th grade) indicate that Student received a score of 218 (within the failing range which is 200 to 219) in math and a score of 248 (within the proficient range) for English language arts. Exhibits S-28, P-30B.

· PSAT scores from a test taken during calendar year 2001 during Student’s junior year indicate that Student scored 47 on verbal (higher than 45% of high school juniors), 28 on math (higher than 2% of high school juniors) and 48 on writing skills (higher than 47% of high school juniors). Exhibit P-32.

· Student’s schedule for the first three (of four) terms for the 998-1999 academic year does not include individual counseling. Exhibit P-5. Student’s schedule for the fourth term for the 1998-1999 academic year includes individual counseling to be provided once per cycle. Exhibit P-10.

· A letter dated February 10, 1998 from the Sharon Director of Pupil Personnel Services (Dr. Doyle) notified parents that Sharon proposed to conduct the three-year re-evaluation of Student (including a psychological assessment and educational evaluation), and sought parents consent for this. Exhibit S-37. Parents responded on February 8, 1999, indicating that they did not consent to the evaluation but requested a Team meeting to review the IEP. Exhibit S-38.

· By letter of May 14, 1999 to parents, the Sharon Director of Pupil Personnel Services (Dr. Doyle) wrote that in response to the meeting yesterday with parents, Sharon was consenting to parents’ request for tutorial services and counseling. The letter indicates that what was discussed at the meeting was “4 hours of tutoring and 1 hour of counseling to be provided through the summer of 1999.” The letter then states

Because there have been many inconsistencies in services to [Student] and she did not receive the full amount of time as you point out in your complaint, Sharon Public Schools agrees with you. As a compensatory gesture, we will offer these services immediately or as soon as they can be arranged.

Exhibits S-41, P-15A.

· In a letter of May 21, 1999 to parents, the Sharon Director of Pupil Personnel Services (Dr. Doyle) wrote that as a follow-up to a meeting yesterday, Sharon is offering four hours of tutorial services and one hour of counseling per week for Student. The letter then states

These services are being offered solely for compensatory reasons related to the level of academic support in regular education as indicated in your partial acceptance and rejection of the last agreed upon Individual Education Plan (IEP). I have taken the liberty of incorporating these services in the enclosed new IEP which is a result of the last TEAM meeting and yesterday’s meeting as well.

Exhibits S-43, P-15B.

· A letter of May 23, 1999 from parents to the Sharon Director of Pupil Personnel Services (Dr. Doyle) indicates that parents understood that compensatory services had been agreed to pursuant to Dr. Doyle’s letter of May 14 th and after speaking with Sharon staff on May 19 th . The letter further explains that at no time during the meeting of May 20 th was there discussion of plans relevant to the IEP, and parents therefore objected to consideration of the May 20 th meeting as a “supplement” to the March Team meeting. Exhibit S-44.

· In a letter of May 26, 1999 to parents, the Sharon Director of Pupil Personnel Services (Dr. Doyle) wrote “to clarify my letter dated May 21, 1999.” Dr. Doyle wrote that Sharon’s proposed compensatory services plan should be seen as separate from the proposed IEP that parents received. Dr. Doyle requested that parents accept and return the enclosed compensatory services plan, which called for three hours of tutoring and forty-five minutes of counseling per week for May, June, July and August, to begin on June 1, 1999. Exhibits S-45, P-15C.

· A letter of May 29, 1999 from parents to the Sharon Director of Pupil Personnel Services (Dr. Doyle) indicates that parents find the proposed compensatory services plan to be unacceptable. Parents state that Sharon’s letter of May 14 th offered four hours of tutoring and one hour of counseling per week for approximately fifteen weeks, and parents had agreed to that proposal; on May 21 st Sharon then sent a different proposed plan calling for four hours of tutoring and one hour of counseling for six weeks; and on May 26 th , Sharon proposed a third plan calling for three hours of tutoring and forty-five minutes of counseling per week for thirteen approximately thirteen weeks. In light of receiving three “inconsistent comp. plans” and because of parents’ other stated concerns, parents wrote that “we will have to take maters into our own hands, this summer, to expedite [Student] getting the help she needs.” Parents also indicated that the revised IEP dated May 21 st was received May 26 th and that parents would need time to assess it before responding. Exhibit S-47.

· In a letter of June 2, 1999 to parents, the Sharon Director of Pupil Personnel Services (Dr. Doyle) wrote in response to parents’ letter of May 29, 1999. Dr. Doyle explained that the “hour” of counseling services had been translated into a school period which is forty-five minutes, and noted that Sharon had no intention of reducing services to Student. Dr. Doyle explained the number of weeks of compensatory service being offered, clarifying that Sharon was prepared to provide the amount of services offered on May 14, 1999 or to “prorate the number of sessions over the available time period.” Dr. Doyle again enclosed a proposed compensatory services plan and noted that this plan had been separated from the IEP so that, with agreement to the compensatory services, they could begin immediately, and at a later time, these services (if accepted) can be incorporated into an IEP. Finally, the letter notes that a BSEA mediator (Patrick Davis) had called, asking if Sharon would be willing to have him mediate Student’s case, and Dr. Doyle indicated that he would welcome his assistance “in mediating whatever differences we may have.” Exhibit S-48.

· A letter of June 28, 1999 to the BSEA Director, the Sharon Director of Pupil Personnel Services (Dr. Doyle) wrote that he enclosed a copy of the proposed IEP rejected by parents. With this letter is a three-page note to Dr. Doyle, received by Sharon on June 28, 1999, explaining Mother’s concerns and questions regarding the IEP. After stating these concerns and questions relevant to the IEP, Mother explained that she was “in the process of deciding whether to let Claire Brady of D.O.E. address compensatory services issues or to have it heard before a hearing officer.” Mother then explained that she thought it would be best for all concerned “if we could settle this matter ourselves” and Mother added that what she is requesting for compensatory services is three hours per week of tutoring, to be provided in two one-and-a-half hour periods from September 6, 1999 through June 2000; one hour session per week of counseling from September 7, 1999 through June 2000, to be provided by a psychologist; and private transportation home to be provided by Sharon. Exhibit S-49.

· A mediated agreement was entered into by the parties, as a result of a mediation conference with the BSEA mediator (Patrick Davis) on July 6, 1999. The agreement states that it modifies the IEP and renders it accepted and in full force. The substantive provisions of the agreement are as follows:

1. Sharon will provide Student with “2 x 1 ½ hour tutorial services one-on-one for the coming academic year, which services will begin in Sept. 1999.”

2. Student’s liaison will convey to Student’s “teaching Team” the accommodations and modifications to be provided relevant to her special education needs.

3. Student’s liaison of resource room teacher will communicate with parents bi-weekly.

4. Dr. Bernheimer will provide Student with a psychological evaluation at the beginning of the school year.

5. Student will participate in resource room services three days per six-day cycle.

6. Student will be provided with counseling one period per cycle.

7. Student will forego French in order to be available for resource room services and counseling, described above.

The agreement was written to be in effect from July 6, 1999 to June 30, 2000. Both parties submitted the mediated agreement into evidence. Exhibits S-51, P-17A.

· A letter of July 9, 1999 to Mother from Claire Brady, Education Specialist, Program Quality Assurance Services, Mass. Department of Education acknowledges a telephone call from Mother informing DOE that the issues raised in # 1, # 5 and # 7 in parents’ request for investigation would be included in a BSEA mediation session scheduled for July 6, 1999. The letter then explains that in accordance with federal requirements, these issues will be “set aside” until the conclusion of the BSEA proceedings. Exhibits S-52, P-18.

Previous correspondence from Ms. Brady indicate that the parts of Mother’s complaint to DOE that were to be addressed through BSEA mediation (and therefore were “set aside” by DOE) were as follows:

· Allegations by Mother that the services specified in Student’s IEP were not implemented appropriately during the 1998-1999 school year (# 1).

· Allegations that what was reflected in Sharon’s proposed IEP did not reflect decisions by the Team at a Team meeting on March 29, 1999 (# 5).

· Allegations that the IEP proposed by Sharon in November 1998 was not developed at a Team meeting and that services were reduced without parental input (# 7).

Exhibits S-42, P-14. A letter of July 9, 1999 from Ms. Brady to Dr. La Grasta (Sharon Superintendent of Schools) reflects that the above-referenced three parts of Mother’s original complaint to DOE would no longer be pursued by DOE with Sharon. Exhibit S-53.

· A memorandum to Mother from Andrianne Maniatis, dated November 3, 2001, indicates that Mother has retained Ms. Maniatis to provide tutorial services to Student for the purpose of addressing four areas: organizational skills, study and testing skills, reinforcement of daily academics, and development and monitoring of long term project planning. The memo indicates that the services will consist of a minimum of 120 hours of tutoring to be provided in the tutor’s residence, at a cost of $400 for consultation and program development fee and $6,000 for contracted tutorial services. Exhibit P-1.

FINDINGS AND CONCLUSIONS

Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA)2 and the state special education statute.3 As such, she is entitled to a free, appropriate public education which is reasonably calculated to assure maximum possible educational development in the least restrictive environment consistent with that goal.4 Neither her status nor her entitlement is in dispute.

A. Sharon’s Most Recent IEP

The first issue presented is whether the programming and specialized services embodied in the most recently-proposed IEP5 are consistent with this legal standard.

1. Academic Difficulties .

Student is a seventeen-year-old young woman who lives with her parents in Sharon, MA, attending the Sharon Public High School as an 11 th grader.

Mother correctly emphasizes that, until recently, Student has had a history of academic difficulties. Student’s grades in 7 th grade (1997-1998 school year) were in the D range, except for two C grades. Exhibit P-3A. Her grades improved somewhat during the next two years (8 th and 9 th grades), although she continued to do poorly in most areas, including language arts and mathematics.6 During 10 th grade (2000-2001 school year) her grades improved significantly, with Student’s report card indicating only one grade in the D range (D + in history), and the remaining grades in the C and B range – that is, two grades of C- (English and geometry), one grade of B- (art), one grade of B + (biology), and three grades of P (academic lab, issues for youth and physical education). Exhibit P-26A. And, for the first quarter of the current school year, Student’s report card indicates further, significant improvement with all grades in the A and B range – that is, one grade of B- (English), one grade of B (history), one grade of B + (algebra II), two grades of A (chemistry and Spanish) and grade of P (academic lab). Exhibit P-30A.

Student’s math is of particular concern to Mother. A psychological evaluation on 9/16/99 and 10/1/99 (9 th grade) found a history of difficulty with math (failing math in 5 th and 7 th grades) and the evaluator noted that Student identified this area as the one where she struggles the most. The evaluation (which included the Wechsler Intelligence Scale for Children – Third Edition) found that Student continued to demonstrate “weaknesses” in math and this area warrants continued support. Exhibit S-27.

Mother also notes a drop in standardized test scores in the area of math from 1995 to 1999. Mother compared the 1995 educational evaluation (where Student demonstrated grade level skills in math – that is a grade equivalency of 5.4 in broad math during the spring of her 5 th grade) with the 1999 educational evaluation by Mr. Cashman (where Student scored in the low average range in basic math skills and a grade equivalency of 6.7 during the fall of her 9 th grade). Mother notes that Mr. Cashman agreed in his testimony that his 1999 evaluation indicated a weakness in mathematics. Exhibits S-10, P-19A.

Mother also points to Student’s difficulties in math on the MCAS and PSAT. Student continues to score in the failing range in math on MCAS; and on the PSAT, she scored higher than only 2% of other high school juniors.7

A teacher assessment for math (algebra 1) by Student’s teacher (R. Lima) on October 5, 1999 indicates that Student’s difficulties appear to be the result of “poor basic math skills”. Exhibits S-24, P-20. Mother also notes a statement by Dr. Holmes (Sharon’s Middle School Principal) that Student was one of her most “needy” students. Testimony of Mother.

From all of this, Mother has argued that special education services have failed her daughter with respect to academics, and in particular with respect to math.

This evidence supports persuasively Mother’s claims that Student has had a substantial difficulty or “weakness” with math, and that Student has struggled for many years in this area, as well as with other academic subjects. However, what distinguishes academic difficulties or “weaknesses” of a special needs child from those of a regular education child is that the special needs child has a qualifying disability (or disabilities) which is determined to be the cause of the poor educational performance. As explained below, the evidence does not support a finding of such a disability.

Student has had two formal evaluations relative to her academics. An educational evaluation was first performed in April 1995 by Marc Weiner, Ph.D., School Psychologist of the Freetown-Lakeville Public Schools when Student lived in that school district. The evaluation concluded that Student has intact academic skills with no evidence of a learning disability. Exhibit S-10.

More recently, an educational evaluation on September 30, 1999 concluded that Student’s performance, as compared to others at her grade level, is high average in Basic Reading Skills and Reading Comprehension; average in Mathematics Reasoning, Broad Written Language, Basic Reading Skills and Broad Knowledge; and low average in Basic Mathematics Skills. The report makes no reference to any underlying learning disabilities, nor in his testimony did the report’s author (Mr. Cashman) indicate that such a disability exists. Testimony of Cashman; Exhibit P-19A.

The only piece of evidence that might support a finding that Student has such a special education learning disability is a sentence in Sharon’s most recent IEP which states: “[Student] has a specific learning disability in the areas of math calculation and understanding math processes.” Exhibits S-9, P-29. The sentence is not explained by other parts of the IEP, and (as discussed above) there is nothing either by way of Student’s evaluations or testimony which supports this statement or even indicates on what it might be based. This statement within the IEP stands alone, and I therefore discount it.

For these reasons, I find no credible evidence to support Mother’s contention that Student has a learning disability. I therefore find no basis for concluding that special education or related services may be justified solely on the basis of Student’s academic difficulties.

2. Emotional Deficits .

In contrast to Student’s academic difficulties, the evidence is persuasive (and Sharon agrees) that her emotional deficits are appropriately understood as a special needs disability which require specialized services, including assistance with academics.

It was recognized that Student has significant emotional needs in 1995 when testing conducted by the previous school district indicated that emotional factors are reducing Student’s ability to effectively function to the extent of her skills, manifesting agitation, inconsistent work habits, as well as a pattern of passive and aggressive behaviors in dealing with her environment. The evaluation recommended outside counseling “to deal with these long standing emotional issues and behaviors at home.” Exhibit S-10.

A personality and cognitive assessment of Student by Richard Vinacco, Psy.D. on May 1, 1997 concluded that Student experiences painful introspection, low self-esteem and loneliness, and she feels unempowered to positively effect change in her life or her future. Exhibit S-12.

A psychological evaluation on 9/16/99 and 10/1/99 (9 th grade) by Joan Bernheimer, Ph.D., Clinical Psychologist concluded that Student has experienced “much growth and improvement” in the social and emotional areas, but nevertheless continues to demonstrate significant social and emotional vulnerabilities. Continued in-school support was recommended to decrease impulsivity and reactivity, increase ability to engage in thoughtful, pro-active problem-solving and increase ability to engage in adaptive conflict resolution. Exhibit S-27.

Student’s emotional difficulties impact upon her academics, for example, resulting in Student not willing to raise her hand to participate in class (she asks the English teacher any questions after class), not having the resources to engage in pro-active problem solving, and demonstrating impulsivity and reactivity in academic situations. Testimony of Jolicoeur; Exhibit S-27. In light of Student’s emotional difficulties (and its impact upon her education), Sharon has provided Student with individual counseling as well as academic assistance (for example, academic lab or resource room, tutoring, accommodations) over the years as well as through its most recent IEP, as explained above in the part of this Decision entitled HISTORY AND DISPUTED IEP.

3. Recent Progress both Emotionally and Academically .

Student has made significant progress regarding her social and emotional needs. Ms. Glynn, who provided counseling services to Student the past two academic years, testified that Student has made “remarkable” gains regarding increasing her confidence, reducing anxiety, being less impulsive, and improving her ability to relate to peers and teachers. Ms. Glynn explained that Mother has indicated to her how pleased she has been with Ms. Glynn’s work with Student. Ms. McCusker (a school psychologist) is currently working with Student, providing counseling to Student once per cycle. Mother has disputed neither the appropriateness of the counseling services nor Student’s progress in this area.

As explained in more detail above (footnote 6 and accompanying text), Student’s grades improved significantly last academic year, and the grades for the first quarter of the current academic year further improved, with all grades in at least the B range. Her current math and English teachers testified that Student is performing well academically and needs no additional services to continue to do so. Her math teachers explained that her current success in math reflects an understanding of previously-taught materials. This evidence supports the conclusion that Student’s academic skills in all areas now fall within the average range or higher. Testimony of Friedman, Winn, Jolicoeur; Exhibits S-27, S-30, P-26A, P-30A.

In sum, Sharon presented credible and persuasive evidence that Student’s emotional needs that impact upon her education are being addressed appropriately through a combination of counseling and academic support, and that Student has made significant progress academically as well as socially/emotionally. This evidence supports Sharon’s contention that its most recently-proposed IEP satisfactorily addresses Student’s special education needs.8

4. Mother’s Arguments to the Contrary .

Mother takes the position that Student has not and is not being taught math in a practical, appropriate manner consistent with a way she can learn and apply the skills. Mother argues that Student’s most recent math grade (B + for the first quarter this year) is not a reliable indicator of progress in this area.

Mother’s principal argument in support of this position is that the MCAS test results from the spring of 2001 (10 th grade) indicate continued difficulties, particularly in math with a score of 218 (within the failing range which is 200 to 219) in math. Also, Student’s recent PSAT scores (from a test taken during calendar year 2001 during the fall of this school year) indicate that Student scored 28 on math (higher than only 2% of high school juniors). Exhibits S-28, P-30B, P-32 (explained in more detail in footnote 7 of this Decision).

I do not discount the MCAS and PSAT test scores as meaningless. For example, I understand generally the significance of MCAS for purposes of graduation from high school. I also note that the MCAS scores improved from 1999 to 2001 in both math and English, with Student attaining a passing grade in English and being very close to a passing grade in math. I also agree that it is troubling that Student scored higher than only 2% of high school juniors on math.

However, the relevance of MCAS and PSAT scores to Student’s current special education needs and to her educational development is not self-evident. It is not sufficient simply to present this raw data without any interpretation or explanation from someone with educational expertise. Mother has presented no evidence which would assist me to draw any conclusions as to the relevance of these standardized test scores. As a result, I am not able to assign any particular weight or significance to these standardized test scores, and it would not be appropriate for me to speculate. In contrast to these test scores, there is evidence (through grade reports and testimony of teachers) which more clearly demonstrates Student’s significant academic progress within the public high school and that her educational needs are currently being addressed.

Mother further argues that the proposed IEP provides insufficient time within the resource room, that the resource room has 8 to 12 students of different grade levels and needs and therefore is not appropriate to address Student’s needs, and that the class is noisy and frenetic, impeding Student’s concentration and comprehension. Mother is correct that the time in the resource room was reduced – the most recent IEP calls for academic lab (or resource room) for 42 minutes, three times in each six-day cycle, as compared to academic lab for 66 minutes, five times in a six-day cycle in the previous IEP. However, tutoring has been added, providing Student with four tutoring periods of 40 minutes each in a six-day cycle. Exhibits S-8, S-9, P-25, P-29. Also, Sharon offered testimony that rather than 8 to 12 students in the resource room, there are 6 children in the room, and that the room is not particularly noisy or frenetic – the noise is the normal sound of student activity. Testimony of Cashman, Popkin.

Mother points out that the in-school math tutor is not certified in special education. I find no reason why the tutor should be certified in special education. As discussed above, Mother has presented no evidence that Student has a learning disability or other special needs relevant to math that would require the tutor to have special education training or certification.

Mother testified that it is inappropriate and discriminatory to attempt to have Student’s needs met by pullout to a “transitional class” (a class that is not designed for special needs students). Mother stated her understanding that the transitional class is appropriate for students with extended absences, or problems that may cause them to miss class. Sharon’s Director of Special Education explained, however, that Student is not a member of the transitional class but has been receiving English tutoring there because the tutor has responsibilities in that classroom. Testimony of Loud.

Mother testified that, in her opinion, the most appropriate plan for Student at this time would be to pull Student out of regular education math class, and have her work with a special education certified teacher with diagnostic/prescriptive training, and a math degree, until Student has a firm, basic skill foundation and the ability to apply the learned skills in a testing or practical situation. Testimony of Mother.

Mother’s opinions are obviously important and relevant to my consideration. There is no dispute that Mother has been actively involved with her daughter’s education and has been a strong advocate. However, Mother’s opinions (as to what are her daughter’s special education needs and how those needs should be met) cannot be given the same weight as the testimony of those people who, by education and experience, are professionals in this area.

Mother has offered no testimony by educational professionals and has submitted no professional assessments or evaluations from which I could find that Student’s special education needs are not being met currently, that she is not making substantial progress, or that she is in need of additional or different services than what Sharon has included in its most recent IEP.

For these reasons, I find that Mother has provided no persuasive evidence or argument to contradict Sharon’s evidence that the most recent IEP is appropriate.

5. Conclusion .

I conclude that Sharon’s most recently proposed IEP is reasonably calculated to assure Student’s maximum possible educational development in the least restrictive environment consistent with that goal. In reaching this conclusion, I have considered all of those services described in the service delivery grid of the IEP as necessary to meet Student’s current needs and therefore have not separated out any services that may have been intended by Sharon solely as compensatory in nature.9

B. Compensatory Education Claims

In response to a request from the Hearing Officer to clarify the issues in dispute, Mother sent to the Hearing Officer a letter dated November 11, 2001, describing six issues that she intended to address through the Hearing on this matter. These six issues generally reflect Mother’s claims regarding alleged past violations, as she argued them at the Hearing and in her written closing arguments. They are as follows:

1. The service specified in Student’s IEP were not implemented appropriately during the 1998-1999 school year. Specifically, 65 (45 minute) counseling sessions, 126 (45 minute) academic labs, and 180 (45 minute) in class support sessions were not implemented.

2. The second IEP for the period 3/31/98-3/30/99 (dated 11/2/98) was implemented without a Team meeting, without written explanation of why services needed to be discontinued and without parent approval.

3. The IEP for the period 3/29/99-3/29/00 did not reflect the recommendations or decision of the Team regarding provision of service, nor were the services reflected in the IEP the result of any valid criteria or assessment.

4. The services specified in the modification of the IEP, dated 6/6/99-6/30/00 were not implemented appropriately. Specifically, 40 hours of service were not implemented, and the consistency of service and quality of instructional design were not appropriate.

5. Sharon failed to ensure annual Team meetings met the criteria to develop, review and, if necessary, revise some or all components in Student’s IEPs (1998-10/2001), therefore failing to provide appropriate services to address Student’s learning disability.

6. There were reoccurring procedural violations following DOE-mandated corrective action on the same violations.

I will review each of these concerns, as well as several other issues raised in Mother’s written closing argument.

I note at the outset that the First Circuit Court of Appeals has recognized the availability of compensatory services in an appropriate case.10 Compensatory education is essentially a remedy designed to make eligible students whole as a result of not having received services or accommodations they should have received had the school district complied with its obligations at the time.11 In order to obtain compensatory services, a parent generally must show more than a de minimus failure by the School District.12 And, equitable considerations (including the conduct of both parties) may become relevant to a determination of whether compensation is due and what, if any, compensation should be provided.13

1. Implementation of Services During the 1998-1999 School Year .

Sharon’s first proposed IEP for Student was for the period March 1998 through March 1999. The IEP called for instructional support in the regular education classroom for 45 minutes each day; academic lab for 45 minutes each day; and counseling for 45 minutes, twice in each six-day cycle. On August 25, 1998, Mother accepted this IEP, except that she indicated that the instructional support should be for 45 minutes, twice each day. Exhibits S-2, P-4. Mother did not accept another IEP until June 28, 1999, when she rejected in part and accepted in part an IEP for the time period of March 1999 through March 2000 (Mother wrote a note seeking answers to certain questions and expressing concerns regarding language contained within the IEP, but not otherwise objecting to the IEP’s proposed services). Exhibit P-33. Therefore, I look to Sharon’s first IEP (Exhibits S-2, P-4) as governing the time period for the 1998-1999 school year.

Mother testified that during the time period of September 1998 through June 1999 pursuant to Student’s IEP, she was to receive individual counseling twice in each six-day cycle but only four individual counseling sessions were provided, leaving 65 counseling sessions that were not provided but should have been under the IEP. She explained that her conclusion is supported by the lack of any individual counseling to be provided pursuant to Student’s schedule for the first three (of four) terms for the year (Exhibit P-5), that individual counseling was to be provided only once per cycle on the Student’s schedule for the fourth quarter (Exhibit P-10), and that even after the beginning of the fourth term, the counselor (Ms. Perrier) was initially not available and therefore did not begin to provide counseling until part way through the term. Mother explained that her best recollection is that individual counseling was provided only four times during this academic year.

Sharon does not dispute Mother’s claim that only four sessions of individual counseling were provided. Rather, Sharon takes the position that the counseling was never intended to be individual sessions, and that the school district met its obligation in this regard through group sessions with a guidance counselor. I do not find Sharon’s position persuasive. The IEP for the time period in question includes Goal 3.1, stating that Student will participate in 1:1 counseling to address issues effecting school performance. Exhibits S-2, P-4. This leaves no doubt that what was agreed to was individual counseling. I therefore conclude that Mother established compensatory claims for missed individual counseling sessions during the 1998-1999 school year.

Mother testified that from September 1998 through June 1999 there should have been instructional assistance to Student twice each day pursuant to her IEP, but that it was only provided once per day. She explained that this conclusion is supported by Ms. Simmons’ Progress Report (Exhibit P-11) which reflects instructional support six times in a six-day cycle so that she should have received instructional assistance in 400 class sessions (45 minutes each session). However, the IEP only calls for instructional assistance once per day. Exhibits S-2, P-4. Mother sought instructional assistance twice per day, but there is no evidence that Sharon agreed to this increase in services. For these reasons, I find no merit in Mother’s claim for compensatory services for missed instructional support.

Mother testified that during this time period, an academic lab was supposed to be provided to Student once each day for 45 minutes pursuant to the accepted IEP, but initially the academic lab was not on Student’s schedule, then her schedule included it but only twice each six-day cycle (Exhibit P-5) and finally for the fourth term, the schedule was revised to include it three times each six-day cycle (Exhibit P-10). She concluded that Student missed 126 periods of academic lab of 45 minutes each. Sharon presented no rebuttal evidence on this issue. I therefore conclude that Mother established compensatory claims for missed academic lab sessions during the 1998-1999 school year.

I also note Mother’s understandable frustration and concern with such significant failures by Sharon to implement an IEP that it had agreed to and that was presumably necessary to meet Student’s educational needs.

2. The Mediated Agreement of July 1999 .

Sharon’s principal defense to Mother’s claims for compensatory services from the 1998-1999 school year is that her claims were fully addressed through a mediated agreement, dated July 6, 1999. Exhibits S-51, P-17A.

Mother disagrees. She testified that this agreement was never intended to address compensatory claims. Dr. Loud testified in opposite, stating that her understanding of the mediated agreement between Sharon and Mother is that it addressed and resolved Mother’s compensatory claims, but Dr. Loud was not employed by Sharon when the agreement was negotiated and signed, nor did Sharon offer any testimony from anyone who participated in the mediation process or who otherwise was employed by Sharon at the time.

This testimonial evidence, together with the fact that the agreement itself is silent on the issue of whether it is meant to address compensatory claims, supports Mother’s position that her claims should survive the mediated agreement. However, for the reasons explained below, I find the documentary evidence persuasive that both Sharon and Mother intended the mediated agreement to address fully Mother’s compensatory claims.

In a series of correspondence between Mother and Sharon, there is repeated reference to resolving Mother’s compensatory claims. The first reference in the documentary evidence is a letter of May 14, 1999 to parents from the Sharon Director of Pupil Personnel Services (Dr. Doyle) who wrote that Sharon was consenting to parents’ request for four hours of tutoring and 1 hour of counseling to be provided through the summer of 1999. The letter then states

Because there have been many inconsistencies in services to [Student] and she did not receive the full amount of time as you point out in your complaint , Sharon Public Schools agrees with you. As a compensatory gesture, we will offer these services immediately or as soon as they can be arranged.

Exhibits S-41, P-15A (emphasis supplied).

A subsequent letter of May 21, 1999 to parents, from Dr. Doyle reiterated Sharon’s offer of four hours of tutorial services and one hour of counseling per week for Student, and then stated

These services are being offered solely for compensatory reasons related to the level of academic support in regular education as indicated in your partial acceptance and rejection of the last agreed upon Individual Education Plan (IEP). I have taken the liberty of incorporating these services in the enclosed new IEP which is a result of the last TEAM meeting and yesterday’s meeting as well.

Exhibits S-43, P-15B (emphasis supplied).

A responsive letter of May 23, 1999 from parents to Dr. Doyle indicates that parents understood that compensatory services had been agreed to by Sharon. The letter further explains that parents viewed these compensatory services as separate and distinct from the services addressed through the most recently discussed IEP, and in a letter of May 26, 1999 to parents, Dr. Doyle agreed that Sharon’s proposed compensatory services plan should be seen as separate from the proposed IEP that parents received. Exhibits S-44, S-45, P-15C. In other words, the parties clearly separated out what services would be needed to address Student’s current special education needs (through the IEP) and a settlement to address past alleged failures (through the compensatory services plan).

At this point, negotiations broke down, as reflected in a letter of May 29, 1999 to Dr. Doyle, in which parents informed Sharon that they found the proposed compensatory services plan to be unacceptable and that “we will have to take maters into our own hands, this summer, to expedite [Student] getting the help she needs.” In the same letter, parents indicated that the would respond separately to Sharon’s proposed revised IEP dated May 21, 1999. Exhibit S-47.

Dr. Doyle sought to revive the negotiations, writing back to the parents in a letter of June 2, 1999 in which he sought to address their concerns, and again enclosed a proposed compensatory services plan and noting that this plan had been separated from the IEP so that, with agreement from parents, the compensatory services could begin immediately. Finally, Dr. Doyle’s letter notes that a BSEA mediator (Patrick Davis) had called, asking if Sharon would be willing to have him mediate Student’s case, and Dr. Doyle indicated that he would welcome his assistance “in mediating whatever differences we may have.” Exhibit S-48.

On June 28, 1999, Sharon received a three-page note addressed to Dr. Doyle, explaining Mother’s concerns and questions regarding the proposed IEP. After stating these concerns and questions, Mother explained that what she is requesting for compensatory services is three hours per week of tutoring, to be provided in two one-and-a-half hour periods from September 6, 1999 through June 2000 ; one hour session per week of counseling from September 7, 1999 through June 2000 , to be provided by a psychologist; and private transportation home to be provided by Sharon. Exhibit S-49.

Soon thereafter, a mediated agreement was entered into by the parties on July 6, 1999, with the assistance of the BSEA mediator (Patrick Davis). The substantive provisions of the agreement include a commitment by Sharon to provide Student with “ 2 x 1 ½ hour tutorial services one-on-one for the coming academic year, which services will begin in Sept. 1999 ” and “ counseling one period per cycle .” The agreement was written to be in effect from July 6, 1999 to June 30, 2000 . Exhibits S-51, P-17A.14

In other words, what parents requested for compensatory services (via their June 28 th letter) was what Sharon agreed to provide through the mediated agreement a week later.

The day after the agreement was signed, a letter was written to Mother from Claire Brady, Education Specialist, Program Quality Assurance Services, Mass. Department of Education acknowledging a telephone call from Mother informing DOE that the issues raised in # 1, # 5 and # 7 in parents’ request for investigation would be included in a BSEA mediation session scheduled for July 6, 1999. The letter then explains that in accordance with federal requirements, these issues will be “set aside” until the conclusion of the BSEA proceedings. Exhibits S-52, P-18. Previous correspondence from Ms. Brady indicate that the parts of Mother’s complaint to DOE that were to be addressed through BSEA mediation (and therefore were “set aside” by DOE) included allegations by Mother that the services specified in Student’s IEP were not implemented appropriately during the 1998-1999 school year (# 1 in parents’ request for investigation) – that is, her compensatory education claims. Exhibits S-42, P-14.

This correspondence is persuasive that Sharon and Mother utilized the mediation process for the purpose of addressing and resolving Mother’s compensatory claims from the 1998-1999 school year. I therefore find that the signed mediation agreement ended Mother’s then outstanding compensatory claims regarding missed services during the 1998-1999 school year.

3. The IEP for the period March 1999 through March 2000 .

An IEP was prepared for the period March 1999 through March 2000. Exhibit P-33.

Mother argues that this IEP did not reflect the recommendations or decision of the Team regarding provision of service, nor were the services reflected in the IEP the result of any valid criteria or assessment.

Within her three-page letter attached to the signature page of the IEP, Mother raised concerns with the IEP. However, she also checked the box on the signature page (of the IEP) indicating that she accepted all portions of the IEP not rejected, and her three-page letter attached to the signature page rejects none of the proposed services. I conclude that Mother thereby accepted the services described within the IEP. Exhibit P-33.

Acceptance of services contained within an IEP required the school district to implement those services without delay.15 Moreover, for the reasons described below, acceptance by Mother limited her right to claim, at a later date, that the services (described in the IEP) were inappropriate or were inappropriately decided upon by Sharon.

The record amply demonstrates that over the years, Mother regularly participated in the process of developing and critiquing proposed IEPs as well as the implementation of those IEPs. She no doubt generally understood the purpose and implications of the description of the services within an IEP. Specifically with respect to the IEP in question, Mother wrote a three-page letter, seeking answers to certain questions and expressing concerns regarding language in the IEP. This letter followed other correspondence with the Sharon’s Director of Special Education, in which parents made clear that they were considering this IEP. Mother presumably understood the processes available to seek resolution of disagreements regarding this IEP, either through PQA or the BSEA, as she had previously utilized these processes regarding other issues. Mother has introduced no evidence indicating either that she misunderstood the IEP and its implications, or that she was coerced to assent to it. Testimony of Mother; Exhibits S-2, S-44, S-45, S-49, P-4, P-15C, P-33.

Finally, I note that Mother testified that she has not been dissatisfied with the IEPs which she has signed, but rather her dissatisfaction is with their implementation or lack of implementation.

On the basis of this evidence, I find that Mother voluntarily agreed to the services described in the IEP with sufficient understanding so as to preclude her from now asserting a claim for compensatory relief on the basis that these agreed-upon services were inappropriate or were inappropriately decided upon by Sharon.16

4. Implementation of the Services During the Period 6/6/99 to 6/30/00 .

Mother takes the position that the services to be provided during the period 6/6/99 to 6/30/00 were not fully implemented appropriately.17

Mother’s argument is that the mediated agreement (and subsequent IEP referencing the agreement)18 require that three hours (two sessions of 90 minutes each) of tutoring were to be provided each week, for 40 weeks (which does not include school vacations) for the period September 1999 through June 2000, with the result that 120 hours (3 hours X 40 weeks) of tutoring were due Student. Mother stated that her records indicate that Ms. Popkin provided 26.5 hours of tutoring and Ms. Strasnick provided approximately 45 hours of tutoring, totaling 71.5 hours of service delivered, as compared to 120 hours due under the agreement and IEP. Mother argues that she is now due the missed tutoring sessions.

Sharon does not disagree that some tutoring services were missed, but disputes the amount of missed services claimed by Mother.

Request for Payment forms of Sharon indicate that Stacy Popkin provided tutoring services to Student for a total of 26.5 hours from 9/29/99 to 12/8/99, which reflects the identical figure provided by Mother. Therefore, there is no dispute regarding the amount of hours of service provided by Ms. Popkin.

The only other tutor was Ms. Strasnick. Her payment forms, signed by Ms. Strasnick and the Sharon Director of Pupil Personnel, together with an affidavit of Ms. Hyde attesting that the forms are true copies, indicate that Ms. Strasnick provided tutoring services to Student for a total of 53.5 hours from 1/9/00 to 6/8/00. Exhibit S-64.19 Mother argues that Student was out of town on at least two of the dates for which Ms. Strasnick was paid for tutoring, but Mother did not identify the precise dates. On the last day of Hearing, Mother was given an additional opportunity to file (within one week) an affidavit to support this argument through additional factual evidence. Mother did not provide this additional evidence.

Dr. Loud testified that she reviewed the academic calendar for the school year 1999-2000 and determined that there were 180 days in the school year (excluding weekends, holidays and vacations). She stated that by dividing 180 days by 5, she reached the conclusion that there were the equivalent of 36 weeks in this school year.

With respect to the calculation of number of weeks in the school year as well as the calculation of services provided by Ms. Strasnick, I find Sharon’s evidence and argument persuasive. I therefore conclude that Student was due three hours of tutoring per week for 36 weeks during the 1999-2000 school year – that is, 108 hours of tutoring services. I further find that Sharon provided 26.5 hours (by Popkin) and 53.5 hours (by Strasnick) – that is, a total of 80 hours.

Therefore, I conclude that Mother has a compensatory claim for 28 hours of missed tutoring services – that is, 108 hours due Student minus 80 hours provided by Sharon. Although Sharon has been providing what it has described as compensatory services to Student through the most recent IEP, none of what Sharon considers to be compensatory in nature addresses the 28 hours of tutoring due Student.20

Mother has initiated the process of obtaining tutoring services privately by retaining a tutor, but she submitted no evidence relevant to whether any tutoring has occurred or whether she has incurred any out of pocket expenses for tutoring. Exhibit P-1.

The parties stipulated that currently the rate paid by Sharon for tutoring services after school is $22.50 per hour, unless a higher rate needs to be negotiated because of an inability to obtain a tutor at the rate of $22.50 per hour. The tutoring that Sharon provided pursuant to the mediated agreement (and IEP incorporating the agreement) was after school, and it appears that any additional, compensatory tutoring required to be provided pursuant to the agreement/IEP should also be after school.21 Therefore, it is likely to cost Sharon $22.50 per hour (or more) to provide tutoring to Student as compensation.

Considering all of the circumstances of this dispute and how best to make Student whole with respect to the missed tutoring services, I find that Mother shall be allowed the option of either

1. Sharon providing or arranging for 28 hours of tutoring, or

2. Mother being reimbursed for out-of-pocket tutoring expenses (up to $22.50 per hour of tutoring) for 28 hours of tutoring, plus reimbursement for travel expenses (one round trip per tutoring session) to transport Student to the place where the tutoring occurs. If Mother chooses this second option, she will need to provide Sharon with sufficient evidence of out-of-pocket expenses.

Mother has also requested reimbursement for travel expenses for driving her daughter to and from the tutoring sessions at Ms. Strasnick’s home during the 1999-2000 school year. There is no dispute that these tutoring services occurred in Ms. Strasnick’s home (at Ms. Strasnick’s request) and that Mother provided the necessary transportation. Therefore, Mother shall be reimbursed by Sharon for the costs of one round-trip (between Mother’s home and Ms. Strasnick’s home) for each paid session that was paid for by Sharon and that occurred in Ms. Strasnick’s home.

5. Remaining Concerns of Mother Regarding Compensatory Claims .

Mother raises several additional concerns.

· Mother alleges that Sharon failed to ensure that annual Team meetings met the criteria to develop, review and, if necessary, revise some or all components in Student’s IEPs (1998 – 10/2001), therefore failing to provide appropriate services to address Student’s learning disability . As discussed above in part A1 of this Decision, Student has not been diagnosed or identified as having a learning disability. Therefore, it is not persuasive to argue that Sharon was remiss in not addressing such a disability.

· Mother argues that there were reoccurring procedural violations following DOE-mandated corrective action on the same violations. This argument, by itself, is not sufficiently specific for me to know what precisely is being referring to. However, there is a specific concern regarding procedural violations which I will address below.

Mother has alleged that the second IEP for the period 3/31/98-3/30/99 (dated 11/2/98) was implemented without a Team meeting, without written explanation of why services needed to be discontinued and without parent approval. Exhibits S-3, P-6. This IEP provided for the same services as the previous IEP, except that the frequency/duration for counseling was left blank, and the comment section indicated that the counseling would be provided as needed. Exhibits S-3, P-6.

Mother neither accepted nor rejected this IEP. She testified that she took this course of action because she believed that it would most likely result in the implementation of the previous IEP. Testimony of Mother. Mother then had the right to implementation of the services described within the previous, accepted IEP. Mother’s position is that the requisite procedural requirements were not followed, but it appears that Mother’s only substantive claim relevant to services for Student pertains to counseling.

As discussed above in part B1 of this Decision, I have concluded that Mother has established her claim for compensatory services relative to counseling sessions missed during this time period. Her argument relative to the second IEP does not alter this claim as it pertains to the special education and related services that Student received or should have received. I therefore find that the mediated agreement (discussed above in part B2 of this Decision) addressed any compensatory claims relevant to this IEP.22

· In her written argument, Mother has raised the concern that her daughter has never been appropriately evaluated regarding her difficulties with math. I do not find this argument persuasive for the following reasons.

Student has received two educational assessments (Exhibit S-10 (1995) and Exhibit P-19A (1999)), neither of which indicated that Student has a learning disability relevant to math or that further testing in this area was needed. Although Student was struggling in math, this fact alone, in light of the two educational evaluations, is not sufficient for me to conclude that Sharon, on its own initiative, should have performed additional testing. Mother has apparently never sought to contest these evaluations through a request for an independent evaluation (except during 7 th grade when the former school district arranged for an independent neuropsychological exam at Mother’s request), nor has she apparently ever requested Sharon to conduct additional evaluations in this area. I also note that in February 1999, Mother received a request for permission for the District to conduct a standard three-year re-evaluation, and she denied this request. Testimony of Mother. For these reasons, I find that Sharon cannot be faulted for failure to perform additional assessments regarding math.

· Finally, Mother testified that since November 9, 2001, the individual tutoring in English has been “a little inconsistent” since the teacher apparently forgot to provide the tutoring on two occasions. This unrebutted evidence is accepted to be true, but I find that this claim reflects a sufficiently de minimus failure by Sharon so as not to warrant compensatory relief.23

7. Conclusions .

I conclude that Mother is entitled to compensatory education as follows.

At the option of Mother, Sharon shall either

· provide or arrange for 28 hours of tutoring, or

· reimburse Mother for out-of-pocket tutoring expenses (up to $22.50 per hour of tutoring) for 28 hours of tutoring, plus reimbursement for travel expenses (one round trip per tutoring session) to transport Student to the place where the tutoring occurs.

In addition, Sharon shall reimburse Mother for the costs of one round-trip (between Mother’s home and Ms. Strasnick’s home) for each tutoring session that has been paid for by Sharon and that occurred in Ms. Strasnick’s home from 1/9/00 through 6/8/00.

C. Monetary Damages.

Mother seeks monetary damages.24 Several BSEA decisions have addressed the question of whether a BSEA Hearing Officer has the authority to order monetary damages.25 These decisions, with which I agree, have concluded that a BSEA Hearing Officer has no such authority.

These BSEA decisions were issued under (and to some extent relied on) previous state special education regulations. I see no basis under current state special education regulations for a different result.

For these reasons, I conclude that I do not have authority to order monetary damages.

ORDER

Sharon’s most recent IEP meets the requisite legal standards.

Sharon shall provide, arrange or pay for compensatory education as described above in part B7 Conclusions of this Decision.

By the Hearing Officer,

William Crane

Dated: February 5, 2002

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL

EFFECT OF DECISION AND RIGHTS OF APPEAL

The decision of the Bureau of Special Education Appeals is final and is not subject to further agency review. Because 20 U.S.C. s. 1415(i)(1)(B) requires the Bureau decision to be final and subject to no further agency review, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision, once it is issued. Any party aggrieved by the Bureau decision may file a complaint in the 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 must be filed within 30 days of receipt of the decision.

Except as set forth below, the final decision of the Bureau must be implemented immediately. Under 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 seek 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,” 20 U.S.C. s. 1415(j). 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. Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983); Honig v. Doe , 484 U.S. 305 (1988).

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 MGL c.30A, ss. 11(6) and 14(4), an appealing party seeking a certified written transcription of the entire proceedings, must arrange for the transcription, or portion thereof, by a certified court reporter, at his/her own expense. Transcripts prepared by the party must then be submitted to the Bureau of Special Education Appeals with appropriate court reporter certification for final review and certification. A party unduly burdened by the cost of preparation of a written transcript of the sound recordings may petition the Bureau of Special Education Appeals for relief.

COMPLIANCE

A party contending that a decision of the BSEA is not being implemented may file a complaint with the Department, whose responsibility it shall be to investigate such complaint. 603 CMR s. 28.00, par. 407.0.

In addition, the party shall have the option of filing a motion with the Bureau of Special Education Appeals, requesting the Bureau to order compliance with the decision. The motion shall set out the specific area of alleged non-compliance. The Hearing Officer may convene a hearing at which the scope of inquiry will be limited to facts bearing on the issue of compliance, facts of such nature as to excuse performance and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief and refer the matter to the Legal Office of the Department of Education for enforcement.

CONFIDENTIALITY

In order to preserve the confidentiality of the child 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.

NOTICE OF REVISED BUREAU PROCEDURES

ON RECONSIDERATION/REHEARING

The United States Department of Education, Office of Special Education Programs (OSEP) in its 1990 Monitoring Report, issued July 17, 1991, ordered the Bureau to amend its procedures to eliminate the availability of reconsideration or re-opening as post-decision procedures in the Bureau cases. Accordingly, parties are notified that the Bureau will not entertain motions for reconsideration or to re-open. Bureau decisions are final decisions subject only to judicial review.

In addition, parties should be aware that the federal Courts have ruled that the time period for filing a judicial appeal of a Bureau decision is thirty (30) days, as provided in the Massachusetts Administrative Procedures Act, MGL c.30A. See, 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.


1

The agreement itself does not state the time period within which the two tutoring sessions are to be provided. Mother testified (and it was not rebutted by other witnesses) that two tutoring sessions were to occur weekly. This is further supported by a subsequent IEP which references the tutoring to be provided under the mediated agreement as tutoring sessions twice each week. Exhibit S-6. I will therefore assume that the mediated agreement intended to reflect tutoring of twice per week.


2

20 USC 1400 et seq .


3

MGL c. 71B.


4

David D. v. Dartmouth School Committee , 775 F.2d 411, 423 (1 st Cir. 1985). Although the applicable legal standard changed to FAPE effective January 1, 2002, the “maximum possible educational development” standard was applicable at the time that the IEP was developed and proposed by Sharon (in calendar year 2001) and therefore is the standard by which the IEP will be judged. Sharon has not disputed the applicability of this standard.


5

The most recent IEP is for the period 10/4/01 to 10/4/02. Exhibits S-9, P-29.


6

In 8 th grade (1998-1999 school year, Student’s report card indicates six grades in the D range, one grade of C- (English), one grade of B + (theatre) and one grade of A + (art). Exhibit P-13A. Student’s report card for 9 th grade (1999-2000) indicates five grades in the D range, one grade of C- (world history), and two grades of P (academic lab and physical education). Exhibit P-24A.


7

The MCAS test results from the spring of 1999 (8 th grade) indicate that Student received a score of 208 (within the failing range) in math and a score of 238 (within the needs improvement range) for English language arts. Exhibits S-23, P-13B. The MCAS test results from the spring of 2001 (10 th grade) indicate continued difficulties (particularly in math) but an improvement with a score of 218 (within the failing range which is 200 to 219) in math and a score of 248 (within the proficient range) for English language arts. Exhibits S-28, P-30B. Also, Student’s recent PSAT scores (from a test taken during calendar year 2001 during this school year) indicate that Student scored 47 on verbal (higher than 45% of high school juniors), 28 on math (higher than 2% of high school juniors) and 48 on writing skills (higher than 47% of high school juniors). Exhibit P-32.


8

The most recent IEP for the period October 4, 2001 to October 4, 2002, provides Student with math tutoring for 40 minutes, twice in each six-day cycle; English tutoring for 40 minutes, twice in each six-day cycle; academic lab for 42 minutes, three times in each six-day cycle and adjustment counseling for 45 minutes, once in each six-day cycle. Exhibits S-9, P-29.


9

Sharon’s witnesses, who testified in support of the appropriateness of the services Student is currently receiving, did not distinguish between the parts of the services that Sharon has labeled as compensatory and those services which are not labeled as compensatory in the most recent IEP. The evidence therefore does not support separating out some of the services within the IEP as compensatory and not needed to meet Student’s current needs. (Dr. Loud testified that the compensatory part of the counseling services was intended to be an increase from 30 minutes to 40 minutes, once in each six-day cycle; and the compensatory part of the individual tutoring related to the quality and nature of the tutoring, rather than the amount of time of the tutoring. She explained that this was the view of the Team. There was no other testimony on this point.)


10

Frazier v. Fairhaven Sch. Com. , 35 IDELR 271 (1 st Cir. 2002); Pihl v. Mass. Dept. of Ed. , 9 F.3d 184, 20 IDELR 668 (1 st Cir. 1993).


11

Lester H. v. Gilhool, 916 F.2d 865 (3rd Cir. 1990), cert. denied 499 U.S. 923, 111 S.Ct. 317 (1991)).


12

The Fifth Circuit Court of Appeals explained this as follows:

Therefore, we conclude that to prevail on a claim under the IDEA, a party challenging the implementation of an IEP must show more than a de minimis [sic] failure to implement all elements of that IEP, and, instead, must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP. This approach affords local agencies some flexibility in implementing IEP’s, but it still holds those agencies accountable for material failures and for providing the disabled child a meaningful educational benefit.

Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000).


13

See, e.g., Student W. v. Puyallup Sch. Dist. No. 3 , 31 F.3d 1489 (9 th Cir. 1994) (fact-specific analysis used to determine equitable remedy in compensatory education dispute); Murphy v. Timberlane , 973 F.2d 13 (1 st Cir. 1994) (equitable considerations are relevant to a compensatory education dispute); Everett v. Santa Barbara High Sch. Dist ., 32 IDELR 175 (C.D.Cal. 2000) (applying equitable considerations to a compensatory education claim).


14

See footnote 1 of this Decision for a discussion of the frequency of the tutoring sessions.


15

603 CMR 28.05(7)(b) (school district must implement without delay all accepted elements of the IEP).


16

See W.B. v. Matula , 67 F.3d. 484 (3 rd Cir. 1995) (court should inquire into the totality of the circumstances surrounding execution of an agreement waiving claims relevant to the IDEA, and should decline to enforce the agreement unless its execution was knowing and voluntary); Independent School District No. 432, Mahnomen School v. J.H ., 8 F.Supp.2d 1166, 28 IDELR 427 (D.Minn. 1998) (acceptance of IEP precluded Hearing Officer from considering its appropriateness).


17

Mother included in her November 11, 2001 letter to the Hearing Officer an additional concern that the consistency of service and quality of instructional design were not appropriate. However, Mother later testified that her concern with the missed services was not the quality of the tutoring that was provided but rather the failure to provide the requisite number of hours of tutoring. I therefore do not further address this aspect of the dispute.


18

The mediated agreement provides that it “modifies the IEP and renders it accepted and in force.” Exhibit S-51. The next IEP was prepared for the period October 5, 1999 to October 1, 2000. Exhibits S-5, P-21. Mother rejected this IEP. An amended IEP was then prepared for the same period, providing for academic lab for 41 minutes, seven times in a six-day cycle; and counseling for 45 minutes, once during the six day cycle (with a comment indicating that the counseling would be during the academic lab). The amended IEP also references the mediated agreement pursuant to which Student is to receive two sessions per week of tutoring (one and one-half hours per tutoring session), and indicates that this tutoring is to continue through the 9 th grade year. Mother accepted this IEP in full on December 6, 1999. Exhibits S-6, P-22. Upon acceptance of this IEP, the IEP (including the referenced tutoring) essentially took the place of the mediated agreement for purposes of setting forth all of the special education and related services that were to be provided Student by Sharon. Testimony of Mother.


19

Mother testified that there were some sporadic tutoring sessions by Ms. Strasnick over the summer, and two one-hour sessions in September and one or two in October 2000. These tutoring sessions would be in addition to Sharon’s calculation of 53.5 hours from 1/9/00 to 6/8/00, and would reduce Mother’s compensatory claim. However, Ms. Strasnick’s testimony (and Sharon’s records) were persuasive that her tutoring ended in June 2000, and I therefore will not consider any possible tutoring that might have occurred after 6/8/00.


20

Dr. Loud testified that the compensatory part of the counseling services was an increase from 30 minutes to 40 minutes, once in each six-day cycle; and the compensatory part of the individual tutoring related to the quality and nature of the tutoring, rather than the amount of time of the tutoring. See also footnote 9 of this Decision, and accompanying text.


21

See Manchester School Dist. v. Christopher B ., 807 F. Supp. 860 (D.N.H. 1992) (compensatory education should not be provided during the time in which school district is already obligated to provide a free appropriate education).


22

I also note that procedural flaws, if demonstrated, do not automatically render an IEP ineffective. The First Circuit Court of Appeals has explained:

Before an IEP is set aside, there must be 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.

Roland M. v. Concord School Committee , 910 F.2d 983, 994 (1 st Cir. 1990).


23

See footnote 12 of this Decision and accompanying text.


24

The term “monetary damages” is differentiated from compensatory education, including any payment by the school district in order to reimburse a parent for out-of-pocket expenses based on a valid compensatory claim.


25

E.g., In Re: Natick Pub. Sch ., 6 MSER 48 (BSEA 99-3852) (2000); In Re: Brockton Pub. Schs ., 6 MSER 17 (BSEA 00-2572) (BSEA 00-2572) (2000); In Re: Wareham Pub. Schs ., 5 MSER 154 (BSEA 00-0679) (1999).


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