COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Student v. Arlington Public Schools
BSEA # 10-1957
DECISION
This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL ch. 71B), the state Administrative Procedure Act (MGL ch. 30A), and the regulations promulgated under these statutes.
On September 15, 2009, Parents requested a Hearing in the above-referenced matter. Following a Pre-Hearing Conference and other requests for postponements the Parties proceeded to hearing on January 19 and 20, 2010, at the Bureau of Special Education Appeals, 75 Pleasant St., Malden, Massachusetts. Those present for all or part of the proceedings were:
Student’s Parents
Student
Tim Sindelar, Esq. Attorney for Parents/Student
Nancy Roosa, Psy. D. Neuropsychologist
Teresa Sauro Educational Consultant
Lauren Michaud Academic Case Manager & Teacher, Landmark School
Mark Ryder Director of Special Education, Arlington Public Schools
Patricia D. Mahoney Special Education Coordinator, Arlington Public Schools
John Kevin Norris Psychologist, Arlington Public Schools
Elaine Allen Special Educator, Arlington Public Schools
Paul McKnight High School English Teacher, Arlington Public Schools
Moira Perry-Byer High School Reading Teacher, Arlington Public Schools
Bryan Sylvester High School Special Education Liaison & Academic
Support Teacher, Arlington Public Schools
Andrea Bell, Esq. Attorney for Arlington Public Schools
The official record of the hearing consists of documents submitted by Parents and marked as exhibits PE-1 through PE-38, and Arlington Public Schools (Arlington) marked as exhibits SE-1 through SE-23 with supplements; recorded oral testimony and written closing arguments1 . The record closed on February 10, 2010.
HEARING ISSUES:
1. Whether the IEP promulgated by Arlington in January 2009, as amended in June 2009, was reasonably calculated to offer Student a free and appropriate public education (FAPE) consistent with state and federal law?
2. Whether the IEP promulgated by Arlington in December 2009 was reasonably calculated to offer Student a FAPE in the least restrictive environment?
3. Whether Parents are entitled to reimbursement for their unilateral placement of Student at Landmark School, with transportation, for the 2009-2010 school year? and;
4. Whether Student is entitled to prospective placement at Landmark through the first semester of the 2010-2011school year?
POSITIONS OF THE PARTIES:
Parents’ Position:
Parents seek reimbursement for their unilateral placement of Student at Landmark for the 2009-2010 school year as well as prospective placement through the first semester of the 2010-2011 school year. According to Parents, Student’s struggles with academic demands diminished when she was placed in a language-based, substantially separate program in elementary school in Arlington. However, in the seventh and eighth grades when she began to receive more of her education in mainstream settings consisting of smaller classes coupled with supports, her difficulties intensified. Parents assert that during that time, Student’s educational performance declined and she experienced frustration, depression and anxiety over school performance. In an attempt to stop Student’s downward spiraling, Parents considered alternatives to Arlington as Student was about to enter high school.
Parents assert that Arlington’s January 2009 IEP as amended in June 2009, providing the program Arlington offered for the beginning of Student’s ninth grade, and the December 2009 IEP, covering the remainder of Student’s ninth grade and the first semester of her sophomore year, failed to afford Student a FAPE. Believing that Student required a more intensive and specialized educational program than the one proposed by Arlington, Parents rejected the proposed IEP and placed Student at Landmark, where, according to Parents, she has made good progress in all of her areas of disability. As such, Parents seek reimbursement for all out-of-pocket expenses associated with Student’s placement at Landmark from the beginning of the 2009-2010 school year and also seek prospective placement through December 2010.
Arlington’s Position:
Arlington does not dispute Student’s eligibility to receive special education services due to a specific learning disability which impacts her reading, writing and executive functioning. However, Arlington argues that this disability can be properly addressed through the IEPs offered by Arlington in June and December 2009.
In addition, Arlington disputes that Student failed to progress effectively in the inclusion model at the Ottoson Middle School as evidenced by her grades, progress reports and testing results. She is of average intellectual ability and academically was also performing within the average range. It is Arlington’s position that any failure on Student’s part was due to Student’s failure to access the in-class support offered and because she did not use the learning center time properly as she chose to use it to complete homework or “chill”.
Arlington further argues that the proposed program at Arlington High School comports with the recommendations made by Parents’ expert witness and thus, would have offered Student a FAPE for the 2009-2010 school year (Student’s ninth grade). The proposed IEP offered Student participation in a double block, small group English Language Arts class, a small group math class with a math lab, reading tutorials and academic support, all of which Arlington argued would be appropriate. In the Arlington High School program Student would have also benefitted from a rich curriculum and from interacting with regular education peers. As such, Arlington states that it is not responsible to reimburse Parents for their unilateral placement of Student at the Landmark School, and further asserts that it can offer Student a FAPE prospectively.
Arlington stipulates to the appropriateness of Landmark’s day program for Student.
FINDINGS OF FACT:
1. Student is a fourteen-year-old ninth grader who resides with her parents in Arlington, Massachusetts. She has been diagnosed with a Language Based Learning Disability and Attention Deficit Hyperactivity Disorder (ADHD) (PE-1).
2. In Kindergarten she received speech and language services to address weaknesses in speech and language and pre-reading skills. Thereafter, she continued to receive special education services from Arlington through the end of the 2008-2009 school year, her eighth grade (PE-4; PE-6; PE-7; PE-8; PE-9; PE-10; PE-11; PE-12; PE-13).
3. On February 4, 11, 25 and March 4, 2002, Audrey Stern, Ph.D., conducted a neuropsychological evaluation of Student at Parents’ request. Student had been displaying difficulty with attention and focus, and her Kindergarten teacher also noted that she frequently lost items, and had difficulty putting away her things in an organized manner. Teachers also noted impulsivity and attentional issues. Strengths were noted in gross motor skills and social skills. Dr. Stern described Student as quiet, friendly, motivated, and cooperative (PE-24). The results of Dr. Stern’s evaluation supported a diagnosis of Language-Based Learning Disability, with weaknesses in both receptive and expressive language. Student was also diagnosed with Attention Deficit Hyperactivity Disorder due to weaknesses in executive function skills, including the ability to initiate tasks, hold information in working memory, and plan and organize. Dr. Stern noted weaknesses in reading, math, and writing. She recommended that Student be placed in a language-based classroom with eight to ten students so that she could receive ample individual attention and where distractions could be minimized (PE-24).
4. On May 10, 2004, Dr. Stern conducted psychological testing. Student’s language processing difficulties were apparent both in conversation and during testing. Dr. Stern noted that Student had made substantial gains in her oral passage reading skills, and her reading fluency and comprehension were at grade level, but she evidenced weaknesses when decoding novel words and had a reduced ability in sound sequencing. Her math skills fell below grade level as did her writing skills. Dr. Stern strongly recommended that Student continue to receive her education in a language-based classroom, using language-based teaching techniques. Dr. Stern further stated that Student required “explicit teaching of executive functioning skills” as well as “explicit systematic approach to writing instruction” (PE-20).
5. Student was placed in a language-based program at the Hardy Elementary School for her fourth and fifth grades (PE-9; PE-10). According to Parents, her reading and writing skills improved and she made good academic progress. During this time Student was more confident and happy. Testing indicated that her scores had improved (testimony of Mother).
6. In sixth grade, Student moved to the Ottoson Middle School where she participated in a partial inclusion program. The placement page of Student’s IEP for the sixth grade, accepted by Parent on August 28, 2006, however, called for Student’s placement in a substantially separate classroom (PE-8). In the partial inclusion program in which Student was actually placed, Student received English and math instruction in a small-group language-based program, and received all other subjects in the mainstream. In mainstream history and science Student received in class support (testimony of Mahoney). Student continued to do well in terms of grades and overall attitude (testimony of Mother).
7. For seventh grade, Arlington proposed continued participation in a partial inclusion program at the Ottoson Middle School. At the beginning of the 2007-2008 school year, at Arlington’s suggestion, Student was moved into a small group mainstream math class after Parents accepted the IEP amendment proposing the change on September 12, 2007 (PE-6; PE-7). According to Mother, Student’s educational difficulties began during seventh grade.
8. Mother testified that Student began to have difficulty in math immediately and that she informed Student’s special education teacher (Testimony of Mother). Student also had difficulties with several of her peers in the special education classes who exhibited behavioral issues. Also, Student told Mother that she felt like the aide was always yelling at her. Mother asked Arlington to change Student’s aide, and reported Student’s difficulties with her peers. Student’s anxiety and frustration regarding school and school work increased until she began to fight Parents daily and refused to attend school towards the end of the school year. Parents requested a mediation, as a result of which the Parties agreed to change the aide (testimony of Mother).
9. In January 2008, an IEP amendment adding a social emotional goal to “help Student focus on her learning style and to help her become more comfortable in identifying and expressing her frustration and concerns”, was accepted by Parents (PE-6).
10. Student’s grades declined in seventh grade, and she received a Warning score in her math MCAS (PE-26; testimony of Parent). The MCAS report form marked Student as “Absent” for the English Language Arts (ELA) portion of the test (PE-26).
11. Student’s Team met on June 16, 2008, and offered an IEP calling for Student’s participation in a partial inclusion program, at the Ottoson Middle School, for the remainder of seventh and for Student’s eighth grade. The IEP, covering the period from June 16, 2008 through June 15, 2009 identified social emotional and communication issues as Student’s areas of need. It called for Student to participate in a partial inclusion program in which she would receive ELA at a rate of three times per week for 48 minutes each session; reading twice per week for 48 minutes each session; academic support three times per week for 48 minutes each session; speech and language services once per week for 45 minutes each session; and counseling services once per week for 45 minutes, all as direct services in a substantially-separate setting. In the general education classroom, Student would receive direct academic support fifteen times 48 minutes per week. Consultation between the regular education and special education teachers would occur once per week for fifteen minutes (PE-4). The IEP also called for participation in a co-taught English class five times 48 minutes per week, and offered Student participation in a two-week summer program during which she would receive services from a tutor two and a half hours per day, five days per week, from August 11, 2008 through August 22, 2008 (PE-4). The IEP was forwarded to Parents on June 23, 2008, and Parents accepted the IEP as developed on September 11, 2008, and additionally requested that Student be furnished with books on tape as discussed during the Team meeting (PE-4).
12. The Parent Concern portion of the IEP drafted in June 2008 (PE-4; PE-5) stated,
… [Student] requires a language-based classroom with peers of like disability. Because of her language issues, she will have a hard time with peers who have behavioral issues. [Student] has trouble communicating her thoughts or feelings to teachers or peers. Placement should be well thought out in order for her to make academic gains.
[Parents] feel that the grade 7 placement did not meet [Student’s] needs. [Parents] want to make sure that teachers read, understand and follow the IEP. [Parents] want Student to begin to work with staff around issue of communication to help her express any anxiety or frustration that she experiences around relationships and academic abilities.
Helping [Student] to break down information into manageable pieces is helpful in supporting [Student’s] success in assignments and in test taking. When overloaded with information, [Student] becomes overwhelmed and is unable to complete tasks. When information is approached is given and complete in smaller pieces, [Student’s] success is greatly enhanced. [Student’s] struggle with organization is a key factor in her academic success. Upon arriving home, she often does not have appropriate materials to complete assignments and is often unclear from her own handwriting about the specifics of an assignment. [Parents] feel that using the teaching assistant to record assignments and then have [Student] copy the details of the assignment into her own agenda book is very helpful. [Parents] work at home to support [Student] and when the agenda book is complete [Student] experiences less frustration and feels proud of completing all of her assignments.
[Student] struggles with math. She expressed this frustration at home and would get upset and “down on herself” if she received a poor grade. [Student’s] math placement should be such that she is able to experience some success so that she does not feel overloaded with feelings of frustration and low self-worth.
When participating in the mainstream classroom [Student] sometimes has difficulty answering questions, as she does not wish to make a mistake and “be made fun of.” [Parents] would like teachers to encourage greater class participation to help [Student] feel more comfortable. The family would like teachers to find the balance between encouraging class participation and grading [Student] for lack of participation, which they feel is a struggle for her (PE-4; PE-5).
13. In eighth grade, 2008-2009 school year, Student received her education primarily in mainstream classes. In mainstream science and social studies/world history, Student and other students received support from a teaching assistant who reported to Elaine Allen, the special education teacher. Student also participated in a co-taught model ELA class with both a regular and a special education teacher (PE-4; Ms. Allen; testimony of Mother). At the beginning of the school year, Student’s regular education teacher met with Ms. Allen about Student and four other students who needed to be changed to a special education math class. Student then received math in a small group with other special education students (testimony of Allen, Mahoney). This class was taught by Dennis Doble, a regular education math teacher, and a combination of special education teachers, Casey Harris and Elaine Allen. The class met for five periods per week and two additional support periods (testimony of Allen, Mahoney). Additionally, Ms. Allen taught the academic support period where students worked on organization of projects and work, preview and review of concepts, scaffolding, continued with class discussions, and answered questions regarding academic subjects. Student preferred to use most of her academic support classes to work on her homework except for the longer assignments which she preferred to do at home (testimony of Ms. Allen). Student also received a reading tutorial. According to Parent, Student struggled academically in this placement (testimony of Mother). Student’s IEP also called for provision of counseling services which were not delivered by Arlington ( Id. )2 .
14. On October 16, 2008 Dennis Doble and Casey Harris conducted an educational assessment in math finding that
[Student] ha[d] rather poor knowledge or memory of basic skills (below grade level). The first unit of the curriculum involves algebraic expressions and students need to be able to use the distributive property when simplifying. The breakdown here is when students need to work with positives and negatives. [Student] has had difficulty with these rules so she needs to review these before moving on to more complex problems (PE-19).
A separate educational assessment completed the same date states that Student “is very responsible in completing assignments and passing them in on time” but that she “struggled with graphing, organizing thoughts into words” and also converting within the metric system in mathematics. She is described as polite and quiet, rarely asking questions and lacking in classroom participation. This assessment also states that Student has trouble with rote memorization, remembering formulas and recalling vocabulary definitions (PE-19). Mr. Doble and Ms. Harris noted that Student needed modeled examples to help her solve problems she had learned the day before and stated that she could be impulsive, shouting things out loud in class (PE-19).
15. Arlington initiated Student’s three year re-evaluation on September 29, 2008, when Elaine Allen performed the Wechsler Individual Achievement Test –II (WIAT –II) (PE-18). Student was thirteen years old and in eighth grade. Ms. Allen reported the following scores (including information as to certain scores obtained on the same test in 2004 and 2003):
|
Subtests |
Standard |
Grade |
Age |
|
Word Reading |
85 |
5:2 |
10:4 |
|
Pseudoword |
96 |
5:2 |
11:4 |
|
Numerical |
103 |
8.5 |
13.4 |
|
Math |
96 2003: |
7.2 |
12:4 |
|
Spelling |
84 |
4:5 |
9:8 |
16. Ms. Allen also administered the Gray Oral Reading Tests (GORT 4) and indicated that Student’s oral reading rate was in the 7.0 grade equivalent level, 5.4 grade equivalent level for accuracy, the 6. 4 level for fluency, and the 5.7 level for comprehension (PE-18). Ms. Allen concluded that the results of Student’s testing were below average and indicative of a language-based learning disability (testimony of Ms. Allen).
17. Kevan Norris, M.S. Ed., of Arlington, performed a Psychological Evaluation on September 29, 2008 (PE -17). Mr. Norris found that Student’s general cognitive ability was within the average range of intellectual functioning as measured on the WISC-I, and noted that the degree of variability in the subtests that make up the Verbal Comprehension Index was unusual for a child of her age. He stated that her lowest score on the verbal reasons tasks was in the Vocabulary subtest, where she scored below most children her age. Mr. Norris reported that as measured by the WRAML, areas of verbal memory ranged from average to superior (PE -17).
18. As part of the September 2008 re-evaluation, Student was tested by Meghan Conneally, M.S., CCC-SLP, of Arlington. According to Ms. Conneally, Student obtained average scores on the Expressive One-Word Picture Vocabulary Test, the Peabody Picture Vocabulary Test and the Clinical Evaluation of Language Fundamentals. Ms. Conneally recommended that speech and language services be discontinued, but also stated that Student should be monitored through the end of the eighth grade (SE-10).
19. On an Educational Assessment on October 16, 2008, Dennis Doble and Casey Harris, Student’s math teachers, reported that Student showed poor knowledge or memory of basic skills (below grade level) (PE-19). They also observed that Student appeared to have attentional issues during class and could be impulsive by shouting things out loud. They also reported that Student’s memory appeared to adversely affect learning as they noted that she “need[ed] modeled examples to help her solve problems she learned the previous day” (PE-19).
20. Dr. Nancy Roosa, neuropsychologist (PE-36), evaluated Student at Parents’ request on November 12, 18, 25, and December 4, 2008 (PE-16). The evaluation was aimed at assessing Student’s academic progress in light of her three-year re-evaluation and to aid in planning her transition to high school.
21. On the Wechsler Intelligence Scale for Children- Integrated (WISC-IV), Dr. Roosa reported that Student obtained a standard score of 10 and a Percentile score of 50 on Picture vocabulary; a Standard score of 6 and Percentile score of 9 on Elithorn Mazes; and on Digit Span, a standard score of 11 and a percentile score of 63. Regarding the results of the WISC-IV, Dr. Roosa noted that Student obtained an “average range score on a test of vocabulary knowledge, which involved indicating the picture that defined a work. Low Average range score on test of completing mazes that required [Student] to adhere to certain rules (pass through a pre-determined number of dots) during their completion” (PE-16).
22. Dr. Roosa’s academic skills testing included the Woodcock-Johnson-III (WJ-III) Test of Achievement-Form A, the Gray Silent Reading Test (GRST)- Form B and the Wechsler Individual Achievement Tests (WIAT-II). To assess Student’s auditory/linguistic processing skills she used the Wide Range Assessment of Memory and Learning (WRAML-2) and the Boston Naming Test. Visual Motor and Visual Spatial Processing skills were assessed through the Beery/Buktenica Visual-Motor Integration (VMI), the Rey Osterrieth Complex Figure test and the Grooved Pegboard3 . For learning and memory Dr. Roosa used the California Verbal learning Test (CVLT) and the Wide Range Assessment of Memory and Learning -2 nd edition (WRML-2), and to assess attention and executive functioning skills she used the Integrated Visual and Auditory Continuous Processing test (IVA+CPT) (PE-16). In the aforementioned tests, Student scored as follows:
Academic Skills:
|
WJ-III Form |
Scaled |
Percentile |
Grade |
Comments |
|
Letter-Word |
87 |
19 |
4.9 |
Low |
|
Reading |
94 |
34 |
6.7 |
Average |
|
Calculation |
77 |
6 |
4.4 |
Significantly |
|
Spelling |
88 |
21 |
5.1 |
Low |
|
Applied |
93 |
32 |
5.7 |
Average |
|
GSRT |
Scaled |
Percentile |
Grade |
Comments |
|
Compre-hension |
85 |
16 |
4.5 |
Low |
|
WIAT-II |
Standard |
Percentile |
Comments |
|
Written |
86 |
4.8 |
Low |
Auditory/Linguistic processing:
|
WRML-2 |
Scaled |
Percentile |
Comments |
|
Sentence |
9 |
37 |
Average |
|
Story |
11 |
63 |
Average |
|
Design |
10 |
50 |
Average |
|
Boston |
Raw |
Mean |
Results |
Comments |
|
45/50 |
50+/-5 |
Low |
Mildly |
Visual-Motor and Visual-Spatial Processing:
|
Beery/Buktenica |
Standard |
Age |
Comments |
|
89 |
10-6 |
Low |
|
Rey |
Style |
Comments |
|
Copy Immediate Delayed |
Part oriented Parts Parts |
Student |
Learning and Memory:
|
California |
Raw |
Percentile |
Comments |
|
Total Trial Trial Learning (4,7,8,11,9) Semantic Clustering Percent Primacy Percent Percent Recency List Short Recall Short Recall Long Recall Long Recall Recognition Recognition Long |
52 6 12 1.4 1.1 29 38 33 7 10 11
9 10 14 – |
SS=51 32 50 50 16 50 16 84 69 32 50 16 32 50 84 |
Student’s |
Attention and Executive Functioning:
(IVA+CPT)
|
(IVA+CPT) |
Standard |
Percentile |
Comments |
|
Response |
|||
|
Auditory |
51 |
<1 |
Ability |
|
Visual |
52 |
<1 |
Ability |
|
Full |
44 |
<1 |
Overall |
|
Attention |
|||
|
Auditory |
50 |
<1 |
Ability |
|
Visual |
63 |
1 |
Ability |
|
Full |
48 |
<1 |
Overall |
|
Sustained |
|||
|
Auditory |
34 |
<1 |
Ability |
|
Visual |
32 |
<1 |
Ability |
|
D-KEFS |
Scaled |
Percentile |
Comments |
|
Color-Word Colon Naming Word Reading Inhibition Inhibition/ Switching |
12 13 8 10 |
75 84 25 50 |
Student |
|
Tower Achievement |
3 |
1 |
Student |
|
Brown |
T-Score 50+/-10 |
Comments |
|
Activation |
71-C |
On |
|
Attention |
61 |
Ability |
|
Effort |
60 |
Ability |
|
Affect |
<50 |
Affect |
|
Memory |
62 |
Student |
|
Total |
62 |
Student’s |
|
Achenbach |
Comments |
|
DSM ADHD |
Student’s |
|
BRIEF |
T-Score |
Percentile |
Comments |
|
Behavioral Inhibit Shift Emotional Control |
50 52 56 44 |
58 71 76 37 |
Student |
|
Metacognitive Initiate Working Memory Org Materials Monitor |
72-C 69-B 72-C 72-C 64 67-B |
97 95 97 97 92 93 |
Student |
23. In the Self-Report BRIEF completed by Student, she reported no difficulties in her behavioral regulation skills and some difficulty with organizing her materials and completing tasks, but her scores fell below the clinically significant levels. In this inventory, a clinically significant score is one greater than 97 th percentile (PE-16). In the Achenbach Child Behavior Checklist, Parents did not report any clinically significant problems regarding Student’s social or emotional behavior (PE-16).
24. Dr. Roosa opined that Student’s scores were valid as Student was cooperative hard working and attempted to do her best on the tasks presented even though she admitted that she did not enjoy testing .
25. Dr. Roosa opined that in spite of average cognitive potential, Student’s academic functioning was weak. Her reading skills were found to be below grade level, and her overall skills had not made age appropriate progress in the past four years. She demonstrated average decoding skills but had not been able to apply those skills to functional reading. She presented difficulties responding to abstract, inferential questions and also evidenced difficulty with reading comprehension. According to Dr. Roosa, Student was better able to remember contextual information than rote information. Her then current reading skills clustered at around the fifth (5th) grade level in reading vocabulary and reading comprehension. According to Dr. Roosa, given Student’s weak reading scores, she would be unable to consistently read and understand grade level reading materials in the classroom. This would affect her ability to learn in mainstream classes. Given the decline in her skills over the previous four years, Dr. Roosa opined that without modifying her educational program, Student would continue to lose ground against grade expectations. Dr. Roosa recommended more intensive interventions in reading, accuracy, fluency, and comprehension in order for Student to make effective progress in eighth grade and in high school (PE-16; testimony of Dr. Roosa).
26. Dr. Roosa noted that Student’s skills in written expression also showed a pattern of decline against grade level expectations. Testing results demonstrated that Student had weaknesses when spelling words in isolation. On the WIAT test of Written Expression, she had achieved a score in the Low Average range, at the eighteenth (18 th ) percentile, whereas in the past she had achieved solidly average scores on the same test, scoring in the 66 th percentile in the year 2004 (PE-16; testimony of Dr. Roosa).
27. Student’s profile was also notable for significant weaknesses in executive functioning skills, attention and impulse control as evidenced in the test of Executive Function skills. According to Dr. Roosa, Student had great difficulty planning a way to solve a nonverbal puzzle, in which she had to move discs on pegs to replicate patterns (TOWER; DKEFS). The task required Student to think ahead, plan several steps in advance, and hold the plan in mind while moving discs one at a time. Student struggled greatly to do this, seeming not able to create a plan or move discs in a systematic way to advance toward the goal. She tended to move discs randomly; at times she seemed to get a flash of insight and begin moving in the right direction, but then would seem to forget where she was going. Dr. Roosa noted an overall score in the first (1 st ) percentile. In the Rey Osterrieth Complex Figure, Student demonstrated difficulty planning a way to approach complex visual stimuli in an organized manner so that she could draw and remember it effectively. She drew the complex figure rapidly, without planning, as a series of shapes, resulting in a complete drawing, with all elements present, but with the parts not well integrated into the whole. The limitations of her reduced ability to envision the object as a whole were most apparent when she was asked to redraw the figure from memory. Dr. Roosa surmised that these tests indicated that Student was likely to experience difficulty when asked to see the “big picture” and understand how to work with both parts and the whole – a situation analogous to the skills involved in planning, organizing or completing any long-term project such as a paper (PE-16; testimony of Dr. Roosa).
28. Dr. Roosa found that Student also demonstrated weaknesses in her attentional control. On a computerized test of sustained attention to rote stimuli, her scores were at less than the 1 st percentile. The results indicated that she had many errors of omission – when she missed responding to target stimuli – as well as errors of commission – or over-responding to non-target stimuli. These very weak scores suggested significant problems with sustaining attention on rote stimuli, as well as inhibiting impulsive responses (PE-16; testimony of Dr. Roosa).
29. Dr. Roosa remarked that Student’s weak executive functioning skills impacted her ability to do well at school. Student told Dr. Roosa that she usually gets home not remembering what she has to do for school work, and not having the necessary supplies to complete what she does remember. She reported feeling overwhelmed by the amount and complexity of her homework, and stated that she has difficulty understanding the content in some of her classes. Student also had trouble getting organized and getting started on homework. Sometimes, she would forget to turn in her homework. According to Dr. Roosa, a self-report inventory regarding issues of ADD, indicated that Student’s worst problem was in the area of activation, that is, “the ability to get motivated to embark on work, to stop procrastinating and to have the energy to start and finish work” (PE-16; testimony of Dr. Roosa).
30. Dr. Roosa noted that another large factor in Student’s academic difficulty – separate from organizational considerations – was that she is simply overwhelmed by the amount and complexity of homework. Assignments such as writing a five page paper in one night overwhelm her. Dr. Roosa pointed out that in such circumstance it is possible that she had the assignment for several days but left it until the last night. Given her learning profile, it was unlikely that she could do the kind of planning on her own that would be necessary to work on the assignment over a several day period. She could not be expected to have age appropriate skills in breaking down a complex task, like a paper or studying for a test, into manageable chunks, taking on one at a time. In many instances, she simply did not understand the content of her classes and therefore could not finish homework independently (PE-16, p.16-17, Testimony of Dr. Roosa).
31. Dr. Roosa described Student as a vulnerable learner who had failed to make the expected academic progress during the previous years and was overwhelmed by the demands of mainstream classes (PE-16). To address Student’s difficulty sustaining attention and her weaknesses with expressive language, basic academic skills, planning and organization, Roosa made the following recommendations:
[Student] has received special education support in a variety of models, in elementary school and middle school. She was in a language based program for several years during elementary school and, according to her parents, was successful there. In early elementary school and now again in middle school, [Student]’s support services were provided via a model that includes a mix of mainstream classes and pull out special education supports. This kind of model can certainly be done successfully, but for a student like [Student] it is a challenge to make this work, due to the fact that it usually places further demands on a student’s ability to transition between classes and integrate information across contexts. In other words, with [Student]’s very weak skills in planning/organizing, she is not likely going to be able to take skills taught in one context — say a reading tutorial – and apply them to her social studies reading assignment. [Student] is not likely going to be able to remember to ask for help understanding her science instruction several periods later, when she goes to academic support time. When supports are provided outside the context they are to be used, they are less effective for the EF disabled student. Therefore, I strongly recommend that [Student] be placed in an integrated instructional program.
In fact, with her significant weaknesses in basic academic skills, expressive language, attention and EF skills, [Student] should be receiving all academic instruction in an integrated, language-based program. Further, programming should include elements that help [Student] remediate these weaknesses and build important life skills. This type of integrated class should be based on the following principles :
A modified level of instruction , so that academic instruction is presented at a level [Student] can learn from. She is currently reading and writing at about a 5 th grade level. She can not be expected to read and absorb 8 th grade textbooks or work with 8 th grade materials.
A modified pace of instruction , so that she can absorb and process information presented. Verbal instruction should be presented in short chunks, with repetition. Basic skills should be taught and reviewed until [Student] has developed mastery of them.
A multisensory delivery of instruction . All verbal information should be reinforced through hands-on activities, visual aides or student participation in discussion. Students must be actively engaged in working with, visualizing and talking about information presented to them.
Classes should have a small number of students , no more than about 8, so that [Student] is encouraged to develop expressive language skills. She must be an active member of a small class, one where she is encouraged to use language for reasoning and discussion of ideas. [Student]’s attention will be much better managed in a small group setting, where she is being actively engaged by her teacher.
Teachers should be certified special education teachers, with experience and expertise in teaching students with LBLDs . Speech language therapists should be regular consultants and co-teachers in this kind of model.
The development of expressive language skills should be one of the teacher’s main pedagogical goals, through vocabulary building and reinforcement, building synonym and related word maps, and other language activities. Students must be encouraged to discuss ideas, create conceptual links, have debates, etc., as a regular part of instructional time.
An integrated method of teaching. Some of [Student]’s difficulty with understanding 8 th grade material may be because she is not naturally making the kind of conceptual connections that students without EF and LBLD would be easily making. So for example, she may not understand how to connect today’s discussion of the cotton gin with yesterday’s talk about plantation life. Therefore, teachers need to make these links explicit. Before new concepts are introduced and before new books are read, the time period and historical context should be presented. An outline of material to be covered in a unit might be usefully prepared and referred to so that students have a visual guide to what part of the whole they are learning at any point. Before each lesson, teachers should briefly remind the class what was discussed yesterday and the connection to today’s work explained. At the end of each lesson a preview of the upcoming day should be introduced. The relevance of readings and assignments to the main learning goals should be explained.
[Student will also need remediation of her academic skills . Specifically, she should be receiving special education, small group instruction in:
Reading . [Student] will need daily practice in reading fluency, using a program such as Read Naturally. She will need work on developing her sight word vocabulary; she may need coaching in order to learn to slow down while reading connected text and try to apply decoding skills or sight word recognition skills. She may need a review of phonics and syllabication principles. As for reading comprehension, this is perhaps the area needing most work. She will need reading comprehension strategies taught explicitly, at her level. This includes skills such as summarizing, finding main ideas, generalizing, making inferences, understanding figurative language, etc. Again, [Student] would be grouped with students at her level, which is below that of a typical 8 th grader.
Spelling . [Student] should be provided with a structured program to improve spelling skills, such as Mega Words. Spelling and vocabulary words should be taught each week, but then should be used and applied throughout the week, so that their correct use is reinforced frequently.
Writing . [Student] will need explicit systematic instruction in all aspects of written expression. She will need a program that starts at the paragraph level, works on topic sentences and supporting details. Skills in mechanics, such as punctuation, also need to be re-taught explicitly, and practiced in isolation before being combined with paragraph writing. When [Student] has mastered these skills, she can then move on to writing 3 to 5 paragraph essays. A variety of graphic organizers should be presented and [Student] should be taught how to choose the most appropriate organizer for the type of writing she is doing.
Math . [Student] should continue to receive math instruction in a small group class, where basic skills can be re-taught as necessary and worked on to mastery. [Student] needs review of long division and other skills past the elementary school level. She will need help finding ways to memorize the steps of an algorithm, as well as understanding the conceptual basis of math operations, so that she can do a better job reasoning about the process. I would suggest the school investigate the program, Symphony Math, which allows students to work on computers at home and at school, at an individualized level, to practice math problems, which are simultaneously presented with engaging visual supports.
[Student] will also need explicit support and instruction in Executive Function skills ; this kind of instruction must be integrated with every academic class, and they must be taught in a systematic way so that [Student] becomes able to do them independently. At this point, she needs to learn:
How to use an agenda book.
How to organize her materials, such as binders, notes, assignments, etc.
How to set up a plan and schedule for doing work.
How to manage longer-term projects and papers, breaking them into small pieces that she can tackle one at a time.
How to study for tests.
At this point, [Student] has very rudimentary skills in these areas and she will need explicit, perhaps individualized instruction as she learns these skills. It is important to emphasize that she can not be expected to perform these skills independently at this point in time. She needs to learn the important life skills of planning, organizing and studying; homework support time should not be spent on simply helping her get through today’s daily assignment. Therefore, explicit instruction in EF skills must be build into her program. However, with good coaching and consistent practice, these skills should become more natural and the level of support faded. She may for a longer time period, continue to require prompts and reminders to use these skills.
[Student] should be taught self advocacy skills . If she needs additional time on assignments, she should be encouraged to advocate for herself with a teacher, asking for additional time as needed and preparing a plan for work completion.
[Student]’s ability to complete homework at home must be improved, as, according to her report, homework that doesn’t get completed at school may not ever get completed, due to lack of organization, structure and motivation. There needs to be a coordinated effort between home and school to ensure she has what she needs at home and understands her assignments and takes the time to do them. School personnel will have to ensure that [Student] goes home with all needed supplies, accurate and complete assignments written in her agenda book and a clear understanding of how to do the assignments. For the near future, [Student] will probably need a short, regular check-in time at the end of the day to get appropriate supplies home, with an agenda book completely filled out. This level of support should be weaned if and when [Student] becomes responsible for her own supplies (PE-16). (Emphasis supplied in original)
Additionally, Dr. Roosa recommended a number of accommodations and instructional strategies to be implemented throughout [Student]’s day in order for Student to make effective progress and be ready for high school. (PE-16).
32. Student’s Team convened on January 9, 2009 to develop an IEP covering the period January 9, 2009 to January 8, 2010 (PE-3). This IEP listed only “social/emotional needs” in the area of general considerations, although goals were drafted to address Student’s writing, reading, math and offered Student participation in a counseling/girls’ group.
33. The January 2009 Team considered the evaluation performed by Dr. Roosa as well as Mr. Norris and Ms. Allen’s testing. The Team rejected Dr. Roosa’s recommendations as well as Parents’ request for a language-based program. Arlington offered to move Student from her co-taught English class to the small group English class, but after some discussion, this option was not pursued. In the end, Arlington offered Student continuation of the partial inclusion program for the remainder of her eighth grade. Under this partial inclusion program, Student would receive reading, math, academic support and counseling as direct services outside the general education classroom, as well as academic support in her mainstream classes and would participate in a co-taught English class that met five times per week for forty eight (48) minutes each session. The service delivery grid also proposed a fifteen minute monthly speech and language consultation, and a fifteen minute per week academic support consultation by the regular education and special education teachers (PE-3). On March 3, 2009, Parents accepted the proposed program but rejected the placement proposed by Arlington ( Id. ).
34. Student continued to have difficulty in completing assignments and with tests and quizzes during the second half of the eighth grade year (testimony of Mother). She had particular difficulty with a writing project for her ELA class. Student brought in a draft of her biography report and was accused by both the regular education and special education teachers of plagiarism. Mother requested a meeting with the Ottoson Middle School Principal. According to Mother, during that meeting, the Principal told Parents that Student was a “poster-child for language-based programs” and that she was one of the most impaired language-based children in the school (testimony of Mother). Mother testified that during this period, she and Student’s sibling had to provide Student a lot of support with homework ( Id. ).
35. Student had difficulty accepting assistance from Ms. Allen and the teacher assistant. She also had difficulty completing her homework at home. Parent provided a great deal of assistance to Student with homework and alerted Arlington of Student’s issues with homework, the length of time it took to complete, the amount of homework in general, and the need to break down assignments because Student was having difficulty understanding the assignments, and the vocabulary she was expected to learn. Parent also wrote to Ms. Allen about Student’s acceptance of help in the classroom (testimony of Mother, Ms. Allen). While Arlington was aware of Student’s difficulties, the Team was not reconvened to discuss changes to address the aforementioned issues (testimony of Ms. Allen).
36. In March 2009, after Parent had raised concerns regarding Student’s homework difficulties, Ms. Allen instituted “work chasers”, a system through which Ms. Allen sent weekly updates regarding Student’s missing assignments which Parent had to sign and return to school. According to Ms. Allen, she rarely received any work chasers back from Parents or Student (testimony of Ms. Allen).
37. In eighth grade Student obtained a D in the first term and a D- in the second term in science, although Ms. Allen testified that Student had obtained a C-. (Student was turning in her assignments and received A and A+ in those; however, she received D and F in her in-class test and quizzes.) In social studies/world history, Student obtained a C+. She obtained a B average in math (a special education class), and a D in three of the four marking periods in English, with a B- in the fourth marking period because she completed a biography project for a final grade of C-. Alot of the grade in English was due to Student’s failure to pass in homework regularly (testimony of Ms. Allen).
Ms. Allen attributed Student’s difficulties in mainstream classes to Student’s failure to “make herself available” during the academic support sessions and resistance to accepting assistance during mainstream classes. Since September 2008, however, Ms. Allen was aware that Student had difficulty and felt embarrassed about receiving help in the regular education classes (testimony of Mother, Ms. Allen).
38. Student’s disciplinary record for the 2008-2009 school year show that Student had detentions for disrespectful and or disruptive behavior during academic support on October 24, 2008, March 19, May 1, 2009; and an in-school suspension on June 8, 2009 for taking a picture of her teacher and “amp” and sharing it with classmates without permission (SE-18).
39. Counseling services were not provided during Student’s eighth grade year (testimony of Mother).
40. The Team reconvened on June 1, 2009. It proposed two different service delivery schemes for 9 th grade, depending on whether Student would attend Minuteman Vocational Technical School (Minuteman) or Arlington High School. Minuteman would provide support in mainstream classes in addition to support for reading twice per week and daily academic support. The Arlington High School IEP proposed direct services outside the general education classroom consisting of reading three times per week for fifty six minutes each, and daily direct instruction for one period per day (PE-1; PE-2). Present at this Team meeting were: Chris Carlson, Team Chairperson; Elaine Allen, liaison/special education teacher; Will Verbits, Special Education Director for Minuteman; Terry Sauro, Parents’ Educational consultant; Mother, and John J. Gonsalves, Assistant Principal ( Id. ). No Arlington High School regular or special education teacher or provider attended this meeting.
41. Following the June 2009 Team meeting Student and Parents decided that Minuteman would not be a viable option for Student as it did not offer a language-based program (Testimony of Mother).
42. After it became apparent that Student would not attend Minuteman, Arlington prepared an Amendment to the IEP presenting the services that would be offered at Arlington High School. Pursuant to eighth grade teachers’ recommendations, Student would continue to participate in general education science and social studies. She would be placed in a double block English class in an inclusion setting, and a math class with a math laboratory (SE-2). An organizational goal would be added to Student’s IEP5 . It was further recommended that Student receive academic support and reading tutoring three times per week.
43. Neither Ms. Mahoney, Mr. Knight, Ms. Perry-Byer, nor Brian Sylvester attended the June 2009 Team meeting, and they did not discuss the proposed program at Arlington High School with Student or Parents prior to December 2009.
44. Progress reports were provided to the family in June 2009. The progress report for the written expression goal stated that Student could write multi-paragraph essays as evidenced by her performance on the ELA biography project in which Mother testified she and Student’s sibling had helped and on which Student had been accused of plagiarism (PE-28; testimony of Mother). The progress report for reading notes progress in some areas but states that Student had been “less successful when answering questions that had to do with processing information and connecting the author’s and the reader’s ideas”. She also required cueing and reminders to read at a slower pace so as to decrease the number of errors and improve comprehension. Her participation in the pre-algebra math, small group class was deemed successful (PE-28).
45. On July 22, 2009, Student visited Landmark School (Landmark), at which time, she was administered a number of standardized tests (PE-14). On the Gray Oral Reading Test, 4 th edition, Student scored at the 16 th percentile on rate of reading, the 16 th percentile on accuracy and the 9 th percentile on fluency (i.e., she obtained a 6.4 grade equivalent for Rate, 5.4 for accuracy and 6.0 for fluency). On the Woodcock Reading Mastery Test, Student received a 5.3 grade equivalent level score on the word identification subtest and a 8.7 grade equivalent level score on word attack score (PE-15).
Landmark also performed the Lindamood Auditory Conceptualization test Ver:3, in which she obtained a 7.7 grade equivalent score, and the Expressive Vocabulary Test (PE-14; PE-15). The evaluator made the following observations of Student:
Cooperative, polite, hard worker: willingly attempted all tasks, sometimes persisted when faced with more challenging tasks; flat affect for most of the screening; did not initiate conversation but did respond to examiner’s prompts and often asked for directions to be repeated; good eye contact, overall work pace varied; she often responded just before time limits were reached; at other times, she was either impulsive, answering immediately or exceeded time limits before she offered her final response (PE-15).
46. On August 5, 2009, Parents fully rejected IEP and amendments proposed by Arlington because they called for Student to receive services largely in a mainstream setting (PE-1). Also on August 5, 2009, Parents notified Arlington of their intention to privately place Student at Landmark and seek funding though Arlington (PE-1).
47. Student was enrolled at Landmark in August 2009, for the 2009-2010 school year (PE-1; PE-35; testimony of Mother).
48. Landmark offers Student participation in a small group, substantially separate, language-intensive and language-based program of instruction, with same-age peers who present similar cognitive and learning profiles. The classroom presents a minimum of distractions. Student has a team of teachers and professionals who follow a coordinated teaching approach and all of whom are trained in the needs of language-learning disabled students. Student receives daily one-to-one intensive and remedial instruction in the areas of her disability as well as assistance with speech and articulation deficits.
49. At Landmark, Student has received good interim reports and has done well academically and educationally (PE-32; PE-33; testimony of Mother). Her grades for the first quarter were: B+ in Language Arts Tutorial; B+ in Language Arts; A- in Foundations of High School Math; A- in Marine Science; B+ in US History I; Pass in Foundations of Art and A- in Reading Fluency (PE-32). Her teachers remarked that she “always” came to class with her homework completed reflecting thought and effort, that she was improving her organizational skills and she was demonstrating more independence in maintaining her binders properly organized, and that she participated in class (PE-33; PE-34). Student has reported that for the first-time in her life she feels like everybody else (testimony of Mother).
50. Student aspires to attend college to become a psychologist and help students with learning disabilities (testimony of Mother).
51. Arlington stipulate to the appropriateness of Landmark’s day program for Student.
52. On December 16, 2009, Arlington convened Student’s annual Team (SE-3). Based upon the input provided at that meeting from Landmark personnel and Arlington staff, Arlington agreed that Student required a more extensive special education program than the one offered in June 2009. The Team agreed that Student needed to receive her ELA instruction in a small, language-based setting. The Team also agreed that Student needed twice as much direct special education instruction in reading than had been offered and increased that service to six fifty-six minutes sessions per week (SE-3). The Team continued to offer the direct instruction resource room service that had been included in the June 2009 IEP. Arlington also removed the teacher assistant support in the regular education classes (SE-3). Parents rejected the proposed program as insufficient to meet Student’s needs and sought to continue Student’s placement in Landmark (testimony of Mother).
53. Regarding the proposed program for the remainder of the 2009 to 2010 school year, the Arlington Team recommended that Student drop the double block English and instead participate in a small group ELA with Mr. McKnight6 , in addition to six blocks per week of reading services.
54. Mr. McKnight’s double block ELA class is comprised of fourteen regular and special education students including some eligible due to a specific learning disability. The class was designed for students who have struggled with ELA or failed the ELA portion of the MCAS in seventh and/or eighth grades, and offers them more intensive instruction while addressing organizational skills. The class meets for twelve periods in a seven day cycle and follows the Massachusetts Curriculum Frameworks using a multitude of teaching strategies. Mr. McKnight uses techniques such as spiraling, scaffolding, preview, review as well as graphic organizers and modeling to assist students in learning and with their writing assignments, which are generally completed in the classroom. Mr. McKnight testified that he regularly used the techniques recommended by Dr. Roosa in his class and opined that the accommodations appearing in Student’s IEP could be implemented in his class in coordination with the special education teacher (testimony of Mr. McKnight).
55. Regarding Student’s testimony, Mr. McKnight commented that the books Student was now reading were within the eighth to tenth grade level and further opined that the essay written by Student this school year demonstrated capabilities consistent with those of other students in his class. He testified that the success students experience in his class tends to translate across the board to other curriculum areas (testimony of Mr. McKnight).
56. Moira Perry-Byer would be Student’s reading specialist. She holds a bachelor’s degree in English and a Masters degree in reading. Her special education certification is pending. She testified that in her class she had between one and up to five students at a time, in what she described as a comfortable and accepting space with structured, predictable routines, and where there was access to appropriate grade level books. She is able to individualize reading instruction for each student and keeps them engaged through multi-sensory approaches. She utilizes technologies such as Kurzweil and Reading for the Blind and Dyslexic (testimony of Ms. Perry-Byer).
57. Ms. Perry-Byer reviewed the results of Student’s GORT and testified that they were similar to the scores obtained by many other students with whom she works. She further remarked that Student’s seventh and eighth grade scores showed that she had “jumped a stanine in everything and two stanines in listening comprehension” (testimony of Ms. Perry-Byer). She testified that she would help Student understand patterns in words, syllabication and accents to help her improve reading accuracy scores, and would use Orton-Gillingham materials and the Mega Words system to assist Student build phonemic awareness skills and improve automaticity. According to Ms. Perry-Byer, students consistently make over a year’s progress in a year’s time in her class, including students with language based disabilities and or ADHD (testimony of Ms. Perry Byer).
58. Brian Sylvester is the special educator who would teach the small group ELA offered to Student under the December 2009 IEP, would be her liaison and would also provide the academic support sessions. Mr. Sylvester holds a Masters degree in Special education, is certified in teaching students with moderate disabilities grades 5 to 12, and passed the MTEL for reading instruction. Prior to initiating his employment at Arlington High School, he taught at Landmark High School (SE-19; testimony of Mr. Sylvester). As Student’s liaison and academic support teacher, he would coordinate with regular education teachers across curriculum areas. He would preview material and vocabulary, review and/or re-teach material, assist Student to prepare for tests and teach her organizational skills. According to Mr. Sylvester, while the work is challenging, the scaffolding done by Mr. McKnight allows them to complete the assigned work in ELA. He also coordinates reading strategies with Ms. Perry-Byer, math and math lab with Nigel Kraus, as well as with the social studies and science teachers with whom he oversees the implementation of accommodations (testimony of Mr. Sylvester).
59. Mr. Sylvester works with three students at a time, one period per day in a cycle. He testified that Student’s abilities fell within the range of abilities presented by some of his other ninth grade students who were making good progress this year and had begun demonstrating use of the strategies taught by him more independently. As a former Landmark teacher, he noted that in his opinion the content of instruction was richer in Arlington than at Landmark, and stated that at Landmark if a student attended class and submitted all the homework regularly, it would be difficult to get less than a “C” (testimony of Mr. Sylvester).
60. Dr. Roosa observed Mr. Sylvester’s class, which Mr. Sylvester stated had not been a typical class (testimony of Mr. Sylvester).
61. Patricia Mahoney is the Special Education Coordinator at Arlington High School. She testified that Student was among the more successful eighth graders targeted for transitioning into the high school and stated that Student very much wanted to be with her peers in the mainstream. Ms. Mahoney testified that Student’s peers who went on to Mr. McKnight’s and Mr. Sylvester’s classes have evidenced progress in English and reading. She further noted that the small group ninth grade class follows a similar model to the one followed by the Ottoson Middle School in which Student was successful. She stated that Arlington’s inclusion model offered an enriched curriculum which allowed students to increase their proficiency in ELA as evidenced by the Rennie Report. In Arlington, teachers participate in collaborative learning teams which are cross departmental teams that facilitate the cross over between special education and regular education. They also participate in professional development and receive special instruction in technologies used in Arlington such as Kurzweil and Reading for the Blind and Dyslexic (SE-19; testimony of Ms. Mahoney).
CONCLUSIONS OF LAW :
The Parties do not dispute that Student is an individual with a disability falling within the purview of the Individuals with Disabilities Education Act7 (IDEA) and the state special education statute.8 As such, Student is entitled to a free, appropriate public education (FAPE).9 The dispute between the Parties is centered on the appropriateness of the IEP and services offered by Arlington and whether Parents were justified in placing Student at Landmark for the 2009-2010 in order to enable her to receive a FAPE. Because the most recent IEP covered both the end of this school year and the first semester of the 2010-2011 school year, I must examine whether Student is also entitled to prospective placement at Landmark. If so, Arlington would be responsible to reimburse Parents for their unilateral placement through the date of this decision and also to issue an IEP placing Student at Landmark through December 2011. In rendering my decision, I rely on the facts recited in the Facts section of this decision and incorporate them by reference to avoid restating them except where necessary.
The IDEA and the Massachusetts special education law, as well as the regulations promulgated under those acts, mandate that school districts offer eligible students a FAPE. A FAPE requires that a student’s individualized education program (IEP) be tailored to address the student’s unique needs10 in a way reasonably calculated to enable the student to make meaningful11 and effective12 educational progress. Additionally, said program and services must be delivered in the least restrictive environment appropriate to meet the student’s needs.13 Under the aforementioned standards, public schools must offer eligible students a s pecial education program and services specifically designed for each student so as to develop that particular individual’s educational potential .14 Educational progress is then measured in relation to the potential of the particular student.15 School districts are responsible to offer students programs and services that will allow them to make meaningful, effective progress.16
As the party challenging the adequacy of Student’s IEP and seeking public funding for their unilateral placement, Parents carry the burden of persuasion pursuant to Schaffer v . Weast , 126 S.Ct. 528 (2005)17 , and must prove their case by a preponderance of the evidence. Also, pursuant to Shaffer , if the evidence is closely balanced, the moving party, that is Parents, lose. Id .
In the instant case the evidence is persuasive that Arlington did not provide a program and services that addressed Student’s disabilities effectively, which resulted in Parents’ unilateral placement of Student. The evidence supports Parents’ position and therefore, I find that Parents have met their burden of persuasion pursuant to Shaffer , and are entitled to reimbursement for their unilateral placement of Student at Landmark for the 2009-2010 school year. With regard to the IEP promulgated in December 2009, which covers the beginning of the 2010-2011school year (Student’s eleventh grade), Parents did not meet their burden of persuasion. My reasoning follows:
I. Arlington’s January 2009 IEP as Amended in June 2009:
At issue is whether the IEP proposed by Arlington in January 2009, as amended in June 2009, was reasonably calculated to provide Student a FAPE in the least restrictive setting.
To ascertain whether Parents are entitled to reimbursement for their unilateral placement of Student for the 2009-2010 school year, I must consider the information available to the Team at the time the IEP and IEP Amendment were developed. The appropriateness of the IEP must be assessed by “what was, and was not, objectively reasonable when the snapshot was taken, that is, at the time the IEP was promulgated.” In Re: Southwick-Tolland Regional School District ,12 MSER 279, 289 (Crane, 2006), citing Roland M. and Concord Sch. Comm ., 910 F. 2d. 983, 992 (1 st Cir. 1990). In assessing the “snap shot”, the personalized instruction and support services need not maximize Student’s potential to assure her a FAPE. That is, “the public school district is not responsible to offer Student a “Cadillac” but rather a serviceable Chevrolet that allows Student to get around effectively.” In Re: Arlington Public Schools, 8 MSER 187 (Crane, 2002); In Re: Middleborough Public Schools, 12 MSER 310, 328 (Figueroa, 2006). While Arlington was not mandated to offer Student the best program possible, it was responsible to provide her a program tailored to meet her unique needs so as to enable her to make effective educational progress and not simply fit her into whatever program it had available that might not address her needs. The June 2009 Team was responsible to consider the information reasonably available to it at the time it was planning Student’s program and placement for ninth grade. As such, I begin by analyzing available information.
The Parties agree that Student possesses average cognitive ability. While in the eighth grade, Student was evaluated by Ms. Allen (in September 2008). Her report noted that Student’s standard scores on the WIAT-II Word Reading and Spelling subtests had declined from previous testing in 2003 and 2004. In September 2008, Student’s word reading and pseudo-word decoding skills were at a 5.2 grade level, suggesting that Student had only gained two years progress in four years since her previous testing done in 2004 (PE-18). In the spelling portion of the test, Student’s scores fell in the low average range placing her at a 4.5 grade level. On the GORT 4, Student’s reading accuracy fell at the 5.4 grade level and comprehension at the 5:7 grade level. Reading fluency was slightly higher at a 6.4 grade equivalent level ( Id. ). Ms. Perry-Byer, reading specialist in Arlington High School, opined that the GORT 4 was a reliable and effective way to measure a student’s reading skills (testimony of Ms. Perry-Byer).
Dr. Roosa reported similar findings in her testing of academic achievement conducted in November of 2008. She noted that Student’s reading was now below grade level and that her skills had not made age appropriate progress in the previous four years (PE-16). Dr. Roosa found that Student’s reading skills clustered at around the fifth grade level in reading vocabulary and reading comprehension. She explained that the low reading levels would prevent this then eighth grader from consistently reading and understanding grade level reading materials presented in the classroom, impacting upon her ability to learn in mainstream classes (PE-16; testimony of Dr. Roosa). She explained for example that if Student got stuck on a word she did not understand, she would likely continue to try to figure out what it meant during which time the class may have moved on to something else, and Student would have missed valuable information. Given the decline in Student’s scores and previous yearly progress, Dr. Roosa expressed concern that without modifications to Student’s educational program, she would continue to lose ground against grade expectations. Dr. Roosa recommended more intensive intervention – in reading, accuracy, fluency, and comprehension – in order for Student to make effective progress in eighth grade and in high school (PE-16; testimony of Dr. Roosa).
According to Dr. Roosa, Student’s skills in Written Expression also showed a pattern of decline against grade level expectations. On the WIAT test of Written Expression, Student had achieved a score in the low average range, at the 18 th percentile, whereas in the past she had achieved solidly average scores on the same test, scoring in the 66 th percentile in 2004 (PE-16; testimony of Dr. Roosa).18 To improve in this area, given Student’s organizational and planning skills, she would require instruction and writing templates should be consistent across all settings (testimony of Rossa).
The record further shows that Student’s grades declined in seventh and eighth grade, when she was moved from a substantially separate language-based program to more participation in inclusion settings. Student received Ds in English. She received a D- in the first semester of science. She received Cs in her World History course, and failed the math MCAS in seventh and eighth grades (testimony of Mother). Arlington cannot in good faith argue that a student who completes a class with a D grade, albeit a passing mark, has therefore demonstrated effective progress within the meaning of the IDEA. This becomes even more concerning in subjects such as math where a student will be called upon to build upon previously learned material, in order to move on to the next level; for instance, a solid foundation in arithmetic is needed before that individual can move on to algebra. In this regard, Dr. Roosa commented on the issues identified by Landmark personnel regarding Student’s readiness for algebra (testimony of Roosa). The evidence shows that Student was not performing at grade level.
Student also had difficulty completing homework, and required increased assistance from Parents. In the eighth grade, she began to refuse going to school. Her self-esteem began to deteriorate, and she began to show some inappropriate behavior in school (testimony of Mother).
In addition, progress reports for the 2008-2009 school year were not helpful in providing the family adequate, detailed, accurate information concerning Student’s true progress during that year. For example, the reading goal progress reports of November 7, 2008, January 26, 2009 and April 3, 2009 do not directly address any of the four benchmarks for that goal (PE-28). The April 3, 2009 progress report for the math goal lacks reference to the data-driven benchmarks and simply states that “[Student] has attained some progress toward the annual goal. She seems to grasp concepts presented during math class as demonstrated by her participation and completion of assignments” (PE-28). The June 22, 2009 progress report for writing indicates that Student’s progress was demonstrated by the accomplishment of her ELA biography report, yet fails to note the difficulties with the completion of that report that had necessitated a meeting with the principal. (There is no statement regarding the counseling goal, presumably because this service was not provided). Dr. Roosa opined that the progress reports failed to provide specific information to truly gauge Student’s progress (testimony of Dr. Roosa).
I found Dr. Roosa’s testimony to be credible despite Dr. Norris’ attempt to discredit her. She has known Student for several years and had the opportunity to evaluate her twice. She reviewed past and current records, interviewed Student and Parents, observed portions of the proposed 2009-2010 program in Arlington, and observed Student at Landmark. Moreover, she made recommendations that are found to be helpful for Student, recommendations that have now proven correct in light of Student’s experience at Landmark. In contrast, on cross-examination, Dr. Norris’ testimony was seriously compromised and found to be unreliable. He was reluctant to accept Student’s diagnosis and recognized areas of disabilities and simply stated that he accepted the findings of the Team; and, he attempted to disregard statistically significant data obtained through Arlington’s testing, including parts of his own testing. Dr. Norris is not certified as a reading specialist, and he did not agree that Student presented with a specific learning disability. In areas where he seemed to disagree with the findings of the Arlington Team, he was reluctant to argue in favor of his own views. Dr. Norris’ only knowledge of Student came from his limited testing on September 29, 2008. Based on the results of his testing, Dr. Norris made no recommendations whatsoever and relied completely on recommendations made by the rest of the Arlington personnel, on the basis that they knew Student better than he, better than Dr. Roosa, and presumably better than Parents, since they also disagreed with Arlington (PE-17; testimony of Dr. Norris, Dr. Roosa). There is no doubt that Dr. Norris is knowledgeable regarding the administration and scoring of certain tests, but he did not come across during the hearing as totally candid, credible or reliable. As such, his testimony is given little weight.
Arlington argued that the information available to the Team in January and June 2009, supported continuation of the partial inclusion program. As explained supra, this conclusion is not supported by the evidence. Pursuant to the IEP and Amendment, for ninth grade Arlington offered Student three blocks of reading instruction with Ms. Perry-Byer, a reading specialist, to assist with fluency, accuracy and comprehension. Writing skills would be addressed through regular education with support from Mr. Sylvester, a former employee of Landmark versed in the same strategies used at Landmark, and student would partake in a double-block ELA class with a regular education teacher. The ninth grade IEP and Amendment dropped participation in co-taught models, as Arlington explained that no aide would accompany Student to any mainstream class.19 This IEP indicates under the methodology section that Student requires instruction in a “small group setting” (PE-3). However, under the amendment proposed on June 3, 2009, the only two services provided in small group setting were reading and academic support.20 In essence, the proposed IEP reduced the amount of special education services to Student.
Arlington recognized that Student’s areas of need include development of her self-advocacy and self-esteem issues in addition to her reading and writing deficiencies, organizational and planning skills difficulties. While Arlington asserts that the IEPs address these needs, the evidence shows that Arlington did not follow through with services in these areas during Student’s eighth grade, at a time when Student was showing signs of distress, was frustrated and was becoming disenfranchised from her education because she did not believe that she could make it. Arlington asserted that Student’s behavior was becoming problematic (Ms. Allen, Dr. Roosa, Student, Mother).
Recognizing that it had failed to provide a direct service mandated under the accepted IEP, Arlington offered to provide makeup counseling services over the summer. No documents were offered to detail what was offered and how it would have been delivered. No evidence was offered to indicate that provision of this service during the summer would have in any way made-up for the loss of 1440 minutes of counseling services throughout the year. Furthermore, regarding Arlington’s offer to make up the counseling services over the ten weeks of summer break, these services would have had to be provided for two hours and 24 minutes per week to remedy the breach, an arrangement which Parents ultimately rejected.
Clearly, Student needed counseling services during the eighth grade, not after the year was over. Offering to compensate Student after the year was over was not only too little too late, but out of context, and it is doubtful that any counseling services at that time would have yielded the results intended pursuant to the IEP. S ince counseling was not delivered, Arlington remains responsible for the provision of compensatory services for this infraction. Nevertheless, failure to offer counseling services pursuant to Student’s accepted IEP alone, does not automatically result in Parents right to reimbursement for an outside placement. Ms. M. v. Portland Sch. Comm ., 360 F.3d 297 (1 st Cir. 2004). This is one factor to be considered among the totality of the circumstances existing when Parents opted to place Student unilaterally at Landmark.
Arlington asserted that Student’s eighth grade teachers who knew her capabilities made the recommendations regarding her high school schedule. According to Arlington, since the other students similarly situated to Student who went on to Arlington High School were capable of progressing both in special and mainstream classes in ninth grade, Student would have also fared well because her abilities fell in the upper end of the group. Arlington asserted that Mr. McKnight, Mr. Sylvester and Ms. Perry-Byer, who would have taught/serviced Student in ninth grade, were all experienced teachers who received specific training in addressing executive functioning deficits, and who taught in structured settings where other students similarly situated to Student had made progress (testimony of McKnight, Sylvester, Byer ). Mr. McKnight is not a special education teacher, and while he may be trained in techniques appropriate to address specific language disabilities, this is not his expertise. The credible evidence shows that language-based instruction in a small group setting is what Student required after her difficulties in seventh and eighth grades. Furthermore, none of these teachers/providers ever observed Student in a regular education or small group setting, and never provided direct services to her, making their knowledge of Student limited. Notably, none of the teachers or providers that would have serviced Student at Arlington High School and who testified at Hearing, were present during the June 2009 Team meeting21 , and no one from Arlington explained to Parents the actual program that would have been available to Student.
Specifically with respect to the math with math lab class, Arlington stated that the ninth grade model was similar to the eighth grade model in which Student had been successful. The difference in ninth grade was that Ms. Sylvester would provide support through coordination with the math teacher, rather than being present in the classroom as was the model in eighth grade (testimony of Sylvester). Another difference was that as opposed to the seven periods it occupied in middle school, the high school math and math lab occupied nine periods per seven day cycle (testimony of Mahoney). The record further shows that staff at Landmark indicated to Dr. Roosa that Student’s deficits in math were such that it would take two years before she would be ready for algebra. This was corroborated by Dr. Roosa’s observation of Student at Landmark (testimony of Dr. Roosa).
Regarding the social studies and science mainstream classes, Arlington reasoned that since Student had obtained “B” and “C” grades with support during the eighth grade, it would be sufficient if she received support from Mr. Sylvester who would also coordinate with the regular education teachers. This assumption was however premised on incorrect information as during cross-examination, Ms. Allen conceded that Student had actually obtained a D in the first term and a D- in the second term in science, and a C+ in social studies (testimony of Ms. Allen).
There were other inconsistencies in Ms. Allen’s testimony. She testified that she had instituted the “work chasers” in January 2009, but when shown the date on the actual form letter sent to Parents she changed her testimony to having instituted them in March 2009. She also denied having had communications with Parent regarding Student’s difficulties understanding vocabulary, her inability to do homework and Student’s resistance to work with Ms. Allen, but also changed her testimony regarding the aforementioned in cross-examination (testimony of Ms. Allen). She also had to agree that while SE-1 called for Student to receive math in a substantially separate setting, in eighth grade Student was placed in a co-taught model math class (SE-2; Id. ). As such, Ms. Allen’s credibility was somewhat compromised.
Dr. Roosa indicated that Student required that mainstream course textbooks be modified, as Student was reading at a fifth grade level, not ninth, and she would have difficulty meeting the writing assignment demands. Additionally, the size of the classroom (14-15 students) would be a problem due to Student’s attentional difficulties. Dr. Roosa noted that even in a class of half that size at Landmark, it was necessary at times to redirect Student when she drifted off. Dr. Roosa opined that this would be difficult to manage in a larger class since Student is quiet and does not actively demonstrate lack of concentration or struggle with literature.
Arlington offered Student participation in a small group, double block, ELA class in addition to the small group math class and lab. Little information was offered regarding the math and math lab course. Written assignments would be worked on primarily in class and not the home. Organizational skills, note-taking and planning would be addressed through Mr. Sylvester’s academic support period and he would also be the liaison between Student’s teachers for carry-over, regular education material, pre and post teaching, and other tasks.
According to Arlington Student possessed average intelligence and her grades and test scores, in their view, support regular education with support. Arlington’s argument that other students in Student’s eighth grade “co-hort” did well in Arlington’s high school programs is irrelevant.
Arlington also argued that the Team further considered Student’s difficulty with the stigma of special education when they placed her in classes such as the double block English with Mr. McKnight combined with support from Mr. Sylvester, where techniques typical of language-based classrooms were implemented within the regular education context (testimony of McKnight). This argument is simply not persuasive. Student’s classroom participation in mainstream programming had to be elicited as opposed to her volunteering in class. She was, according to Parent, embarrassed to be different, but to reach a conclusion that she preferred to participate in classes where, as she admitted to Dr. Roosa, she was getting lost, was Arlington’s mistake.
The evidence is persuasive that neither the “double-block English” or the math with math lab proposed in Arlington’s June 2009 IEP and Amendment would have allowed Student to make effective progress (PE-1; testimony of Dr. Roosa). Little information was offered about the math with math lab. Arlington’s proposed program ignored Student’s lack of progress, actual performance and academic decline during seventh and eighth grades, ignored its own history with Student’s performance in substantially separate classrooms, ignored Dr. Roosa’s recommendations for a language-based program as well as Student’s failure on the MCAS (while having no score for the ELA MCAS), and ignored its own failure to deliver counseling (one of four direct services on the IEP22 ) for an entire year, resulting in Student’s increased frustration in light of her inability to meet educational demands . At Arlington’s request, the strength of the regular education classes and teachers was considered in rendering this decision. According to Arlington, the classes offered at the beginning of the 2009-2010 school year were designed for students with a history of struggling with ELA, regardless of special education eligibility. Arlington further argued that the high school offered extensive supports through regular and special education, to afford students like Student access to the regular education curriculum despite their weaknesses in reading, writing and organizational skills (testimony of Mahoney, McKnight). However, Arlington ignored Student’s need for a small group, language-based model especially in ELA, and considered only a combination of support services as opposed to actual instruction in Student’s areas of deficit. Arlington failed to tailor a program to Student’s needs even when Student was doing worse from year to year. In light of the totality of the circumstances, it was time for a different approach. Parents were therefore justified in seeking an alternative placement for Student, one in which her specific language deficits would be appropriately addressed.
In contrast to her middle school experience in Arlington, Student has done well at Landmark and has, with the right program and services, progressed effectively. I found Mr. Sylvester’s statement that it would be difficult for a student who attended class and regularly turned in homework to get less than a C at Landmark to be significant, especially when at Hearing, Arlington unsuccessfully argued that Student’s lower grades in science and social studies were the result of her failure to turn in homework in eighth grade. Homework in Arlington was an issue but not for the reasons offered by Arlington. From Arlington’s perspective it was Student’s unwillingness to utilize the academic support period in the manner designed by Arlington that resulted in Student’s difficulties with homework and her classes in general. In this regard, I found Ms. Allen’s testimony to be contradictory and unpersuasive. If Arlington had intended to use the support sessions differently, then it was Arlington’s responsibility to use that time as intended and it should have found other ways to assist with homework. Instead, academic support was, according to Ms. Allen, not used as intended and Student did not use the time to work on her longer assignments. I note that all of Student’s disciplinary infractions during the 2008-2009 school year occurred during academic support period (SE-18). At Landmark, there have been no issues with Student being disrespectful or not accepting direction from her teachers. In her Landmark classes, Student is an active participant, doing very well educationally and academically, and her self-esteem has greatly improved (PE-32; PE-33; testimony of Ms. Michaud, Student, Mother, Dr. Roosa).
Student’s executive functioning issues, and her reading and writing difficulties had made homework a painful process with which she and Parents struggled in eighth grade (testimony of Ms. Allen, Mother). The fact that homework is no longer an issue at Landmark speaks volumes as to how, with the right combination of instruction and support in a language-based setting, Student was able to fully access her education.
The evidence shows that Student possessed the ability to progress effectively with proper programming and services, but Arlington’s program did not appropriately meet her needs. In contrast, when placed in a language-based, small group, supportive environment, as was Landmark, Student flourished. As the Supreme Court held in Burlington, “ the Act contemplates that such education will be provided where possible in regular public schools, with the child participating as much as possible in the same activities as non-handicapped children, but the Act also provides for placement in private schools at public expense where this is not possible.” School Comm. of Burlington v. Dept. of Ed., 471 US 359, 369 (1985) .
II. Arlington’s December 2009 IEP:
In December 2009, after Student had spent the first semester of ninth grade at Landmark, Arlington modified the original program made available in June 2009.
The December 16, 2009 to December 15, 2010 IEP (received by the Parents on January 12, 2010) which proposes direct instruction in ELA by a Special Education Teacher for 12 session of 56 minutes each session per cycle, supplemented by six sessions of direct instruction by a special education teacher (in a resource room setting),with consultative services by the special education teacher and regular education teacher for 15 minutes per week and a monthly 15 minute consultation by the speech and language therapist, will not provide a program for Student that will meet her needs and allow her to make effective progress in all goal areas. Ms. Michaud testified that she offered input into the goals and objectives in this IEP (testimony of Michaud). Ms. Mahoney testified that there was no substantially separate language-based program in Arlington High School (testimony of Ms. Mahoney).
This program is an improvement over the June 3, 2009 IEP amendment proposal. As Parents noted however, it is still insufficient to meet Student’s needs (SE-3). This program proposed that Student receive ELA instruction in a small language-based classroom. The number of students in that classroom would be appropriate, but the other students do not share a similar profile with Student. According to Dr. Roosa, some of the students appeared to have significant emotional or behavioral issues, including panic disorders and Asperger’s (testimony of Dr. Roosa). She also indicted that the academic support provided in the “Direct Instruction” daily support would not be adequate, since it required Student to indicate her areas of need and to be able to recall and reiterate in the academic support class concerns that she had earlier in her other classes,23 something that according to Dr. Roosa Student could not do. Student needs a comprehensive program where all parts of the program are integrated and work together.
Ms. Mahoney testified that when the IEP changed from double-block English to the language-based ELA special education classroom, Student had more time in her schedule and that was the reason why reading sessions had been added in the 2009-2010 IEP. There was no indication that the decision was based on an assessment of Student’s individual needs.
The December 2009 IEP also presents inconsistencies. While the IEP grid calls for a five-day cycle, Ms. Perry-Byer explained that reading services are provided per seven day cycle. Also, reading services do not appear in the grid, but the IEP contains a reading goal (SE-3).
Nevertheless, according to Arlington, under the two IEPs it proposed for ninth grade, reading instruction would have been provided by Ms. Perry-Byer. Ms. Perry-Byer testified that she would provide Student reading services in a small group, six days in a seven day cycle, even though the reading services provided by the reading specialist were missing from the IEP.24 She stated that her small groups typically include no more than five students at a time. She agreed that her review of the GORT indicated that Student was reading below grade level and noted difficulties with reading accuracy and orthographic errors (testimony of Ms. Perry-Byer).
The IEP amendment covering the September 2009 through December 2009 period specifically calls for Reading in the C grid for three times per week for 56 minutes each (PE-1), whereas the IEP for December 2009 through December 2010 calls for “Direct Instruction ELA” for six sessions of 56 minutes each to be provided by special education personnel. While Ms. Perry-Byer is a reading specialist awaiting her reading certification, s he is not currently certified as a special education teacher nor is she seeking such certification (SE-19; testimony of Ms. Perry-Byer). Ms. Perry-Byer acknowledged in her testimony that she could have not delivered that service as indicated in the IEP.
Parents argued that “while the administrative assignments of qualified personnel to provide the specific service is left to the discretion of the district, see Hendrick Hudson Dist. Bd. F Educ. v. Rowley , 458 US 176 (1982); R oland M. v. Concord School Committee , 109 F. 2d 983 (1st Cir. 1990); In Re: Medfield Public Schools, BSEA # 04-0706 (MA SEA 2004, Crane); In Re: Ipswich Public Schools , BSEA #05-3855 (MA SEA 2005, Figueroa); In Re: Ipswich Public Schools , BSEA #07-0962 (MA SEA 2007, Berman), this analysis has been augmented by changes adopted in the IDEA in 2004. As a special education teacher, the IDEA requires Ms. Perry- Byer to be ‘highly qualified’.” Parents are persuasive that the term “highly qualified” means that Ms. Perry-Byer must hold full state certification as a special education teacher, or have passed the state special education teacher licensing examination, and hold a license to teach in Massachusetts as a special education teacher. See: 20 U.S.C.A. § 1401(10)(B).25 Therefore, while seemingly an excellent reading specialist, Ms. Perry- Byer is not a special education teacher.
Counseling services are not offered under either of the applicable IEPs for the ninth grade, although the January 9, 2009 to January 2010 IEP contained a goal for counseling/girls’ group stating that “when faced with academic or social issues, [Student] will independently seek the support of appropriate adult personnel and use age appropriate social language skills to solve problems as they arise” (PE-3). Both personnel at Landmark and Arlington agree that Student has issues with self-advocacy. The December 2009 through December 2010 IEP contains a goal for self-advocacy, but the grid does not provide a service through which this goal can be addressed (SE-3). Taking into account that Student was entitled to receive counseling services in the eighth grade, which were not provided, ninth grade would have been the perfect opportunity to provide this service. Arlington recognized the need for Student to work on self-advocacy skills, but failed to provide an adequate way to address it.
Student requires a n integrated program where skills are taught and carried over from one setting to the next and her instruction must be delivered in small group settings. She also needs assistance with planning and organization so that she can do her homework independently. Arlington’s witnesses’ testimony was persuasive that some of the services in the program offered, specifically reading with Ms. Perry-Byer and the academic support with Mr. Sylvester, may have been effective, but in Arlington she would have participated in essentially a regular education program. The weight of the credible evidence however, supported participation in a language-based program. Moreover, the level and effectiveness of the carryover between regular and support services necessary to address Student needs remains questionable. There was no testimony that the rest of the regular education classes in which Student would be placed were infused with language-based approaches and techniques, or that the teachers in those classes were prepared to deliver instruction in the manner Student needed.
In sum, Parents argued that the instant case was not a situation in which the programs offered Student were reasonably calculated to provide her a “serviceable Chevrolet”. See: In Re: Arlington Public Schools , 8 MSER 187 (Crane 2002); In Re: Middleborough Public Schools, 12 MSER 310 (Figueroa, 2006) (holding that FAPE does not require that the school District provide the Student with a “Cadillac, but rather a serviceable Chevrolet that allows him to get around effectively.”) Consistent with the IDEA, t he standard in Massachusetts is that the public school’s program must allow the student to make meaningful, effective progress and do so in the least restrictive setting. The school is not responsible to offer a program that maximizes Student’s potential. Consideration of the evidence shows that even when everything indicated that Student was not making effective progress in eighth grade, Arlington offered yet more inclusion in regular education courses during the ninth grade. The programs offered through the end of the 2009-2010 school year were not likely to allow Student the opportunity to receive a FAPE in the ninth grade.
The evidence shows that Landmark has offered Student an appropriate program through which Student is once again feeling excited about her education and is now setting goals to continue onto college when she graduates from high school. At Landmark, student’s attitude and expectations have turned around.26 There has been notable improvement in her turning homework in consistently. In an appropriate and supportive environment she has been able to flourish.
Therefore, I find that Parents proved their case by a preponderance of the evidence, consistent with Shaffer v. Weast , 546 U.S. 49; 126 S.Ct. 528, 534, 537; 44 IDELR 150 (2005). The evidence further supports a finding in favor of Parents for reimbursement for Student’s placement at Landmark. Since Arlington does not dispute that Parents met the necessary notice requirements pursuant to the IDEA prior to their unilateral placement of Student at Landmark, and further stipulated to the appropriateness of Landmark for Student, Parents are entitled to all out of pocket expenses associated with Student’s unilateral placement at Landmark through the date of this decision.
Furthermore, considering that Arlington does not currently have an appropriate language-based program to offer Student in high school, the Team must amend Student’s IEP providing for placement at Landmark for the rest of the 2009-2010 school year. There is however, insufficient evidence to ascertain whether Student should remain at Landmark for the 2010-2011 school year, or whether she should be brought back to Arlington, which constitutes a less restrictive placement, assuming that Arlington can offer her an appropriate language-based program. It is also possible that Student’s progress is such by the end of the year that she is able to access some small group, regular education courses with assistance.
In light of Student’s documented progress at Landmark, and assuming that this progress continues through the end of the school year, it is possible that she will be able to succeed in a less restrictive program during her sophomore year. Mr. McKnight, Ms. Perry-Byer and Mr. Sylvester were impressive. They would have taught/serviced Student under the December 2009 IEP for the remainder of the 2009-2010 school year. They are the type of teacher/provider with whom Student may be able to continue her success in the future, assuming her continued progress and ability to do well in a less restrictive environment after her year at Landmark. The aforementioned individuals were found to be solid professionals whose commitment to assisting students is unquestionable, and their testimony was found to be credible. There is however, no evidence at this point that Student will be ready for some inclusion or that these individuals would necessarily be Student’s teachers during her sophomore year. Moreover, while specific individuals may be a consideration in ascertaining the appropriateness of a program, a finding of program appropriateness cannot be contingent on instruction being provided by a specific provider(s). Rather, the determination of the appropriateness of a program must rest on whether the program and services themselves are likely to meet the needs of the individual student.
Also, at this point the record lacks sufficient evidence as to whether Arlington would consider creating a small group, language-based program, with appropriate peers, and with opportunities for inclusion, for the 2010-2011 school year. For these reasons it would be premature to enter a finding regarding Student’s placement for next year. However, should Student continue to require a language-based program and if Arlington continues to be unable to provide Student such program, the Parties shall give preference to allowing Student to remain at Landmark.
Arlington is ordered to reconvene Student’s Team in June 2010 to re-assess progress at the end of Student’s year at Landmark, and to determine what program and placement will offer Student a FAPE in the least restrictive environment for the 2010-2011 school year. Arlington shall include Dr. Roosa and relevant Landmark staff as part of the Team.
ORDERS:
1. Arlington shall reimburse Parents for their out-of-pocket expenses relevant to the day portion of Student’s private placement at Landmark from August 2009 through the day of this decision.
2. Arlington shall convene Student’s Team to draft an IEP that offers Student prospective placement at Landmark through the end of the 2009-2010 school year. The Team shall also address the manner in which Arlington will compensate Student for its failure to offer counseling services during Student’s eighth grade.
3. Student’s Team shall reconvene in June 2010 to re-assess Student’s progress and performance and to discuss program and placement for the 2010-2011 school year. Dr. Roosa and Landmark staff with relevant information regarding Student shall be included in the meeting.
4. Parents’ right to bring any disagreement regarding compensation for counseling services is preserved.
By the Hearing Officer,
___________________________________________
Rosa I. Figueroa
Dated: March 15, 2010
1
Following the hearing, Arlington requested an extension of the deadline to submit written closing arguments, to which Parents assented and which was therefore granted.
2
Arlington offered to compensate Student by offering counseling services during the summer following Student’s eighth grade but Parents rejected this offer as having come too late in the year (testimony of Mother).
3
In this test, Student’s scores fell within normal limits showing good finger dexterity and fine motor control with both hands.
4
In this test a clinically significant score is one greater than 70.
5
See IEP Amendment dated June 10, 2010 (SE-2).
6
Mr. McKnight is a certified regular education English teacher with sixteen years experience, six of which have been in Arlington (SE-19; testimony of Mr. McKnight).
7
20 USC 1400 et seq .
8
MGL c. 71B.
9
MGL c. 71B, ss. 1 (definition of FAPE), 2, 3.
10
E.g., 20 USC 1400(d)(1)(A) (purpose of the federal law is to ensure that children with disabilities have FAPE that “emphasizes special education and related services designed to meet their unique needs . . . .”); 20 USC 1401(29) (“special education” defined to mean “specially designed instruction . . . to meet the unique needs of a child with a disability . . .”); Honig v. DOE , 484 U.S. 305, 311 (1988) (FAPE must be tailored “to each child’s unique needs”).
11
Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 192 (1982) (goal of Congress in passing IDEA was to make access to education “meaningful”); Deal v. Hamilton County Board of Education, 104 LRP 59544 (6 th Cir. 2004); (“ IDEA requires an IEP to confer a ‘meaningful educational benefit’ gauged in relation to the potential of the child at issue”); G. by R.G. and A.G. v. Fort Bragg Dependent Schs , 40 IDELR 4 (4th Cir. 2003) (issue is whether the IEP was reasonably calculated to provide student meaningful educational benefit); Weixel v. Board of Education of the City of New York , 287 F.3d 138 (2 nd Cir. 2002) (placement must be “‘reasonably calculated’ to ensure that [student] received a meaningful educational benefit”); Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) (educational benefit must be “meaningful”); Ridgewood Board of Education v. NE for ME , 172 F.3d 238 (3 rd Cir. 1999) (IDEA requires IEP to provide “significant learning” and confer “meaningful benefit”).
12
Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993) (program must be “reasonably calculated to provide ‘effective results’ and ‘demonstrable improvement’ in the various ‘educational and personal skills identified as special needs’”); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990) (“Congress indubitably desired ‘effective results’ and ‘demonstrable improvement’ for the Act’s beneficiaries”); Burlington v. Department of Education , 736 F.2d 773, 788 (1 st Cir. 1984) (“objective of the federal floor, then, is the achievement of effective results–demonstrable improvement in the educational and personal skills identified as special needs–as a consequence of implementing the proposed IEP”); 603 CMR 28.05(4)(b) (Student’s IEP must be “ designed to enable the student to progress effectively in the content areas of the general curriculum”); 603 CMR 28.02(18) (“ Progress effectively in the general education program shall mean to make documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to chronological age and developmental expectations, the individual educational potential of the child, and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district.”).
13
See generally In re: Arlington , 37 IDELR 119, 8 MSER 187, 193-195 (SEA MA 2002) (collecting cases and other authorities).
14
MGL c. 69, s. 1 (“paramount goal of the commonwealth to provide a public education system of sufficient quality to extend to all children the opportunity to reach their full potential… ”); MGL c. 71B, s. 1 (“special education” defined to mean “…educational programs and assignments . . . designed to develop the educational potential of children with disabilities . . . .”); 603 CMR 28.01(3) (identifying the purpose of the state special education regulations as “to ensure that eligible Massachusetts students receive special education services designed to develop the student’s individual educational potential…”). See also Mass. Department of Education’s Administrative Advisory SPED 2002-1: Guidance on the change in special education standard of service from “maximum possible development” to “free appropriate public education” (“FAPE”), effective January 1, 2002, 7 MSER Quarterly Reports 1 (2001) (appearing at a href=”http://www.doe.mass.edu/sped”>www.doe.mass.edu/sped) (Massachusetts Education Reform Act “underscores the Commonwealth’s commitment to assist all students to reach their full educational potential”).
15
Hendrick Hudson Dist. Bd. of Educ. v. Rowley , 458 U.S. 176, 199, 202 ( court declined to set out a bright-line rule for what satisfies a FAPE, noting that children have different abilities and are therefore capable of different achievements; court adopted an approach that takes into account the potential of the disabled student ); Deal v. Hamilton County Board of Education, 104 LRP 59544 (6 th Cir. 2004); (“ IDEA requires an IEP to confer a ‘meaningful educational benefit’ gauged in relation to the potential of the child at issue”); HW and JW v. Highland Park Board of Education , 104 LRP 40799 (3 rd Cir. 2004) (“benefit must be gauged in relation to the child’s potential”); Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) (progress should be measured with respect to the individual student, not with respect to others); T.R. ex rel. N.R. v. Kingwood Twp. Bd. of Educ., 205 F.3d 572, 578 (3d Cir. 2000) (appropriate education assessed in light of “individual needs and potential”); Ridgewood Board of Education v. NE , 172 F.3d 238 (3 rd Cir. 1999) (“quantum of educational benefit necessary to satisfy IDEA . . .requires a court to consider the potential of the particular disabled student”); Mrs. B. v. Milford Board of Ed. , 103 F.3d 1114, 1122 (2d Cir. 1997) (“child’s academic progress must be viewed in light of the limitations imposed by the child’s disability”); MC v. Central Regional School District , 81 F.3d 389 (3 rd Cir. 1996), cert. denied 519 US 866 (1996) (child’s untapped potential was appropriate basis for residential placement); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990) (“academic potential is one factor to be considered”); Kevin T. v. Elmhurst , 36 IDELR 153 (N.D. Ill. 2002) (“ Court must assess [student’s] intellectual potential, given his disability, and then determine the academic progress [student] made under the IEPs designed and implemented by the District ”).
16
E.g. Lt. T.B. ex re.l N.B. v. Warwick Sch. Com ., 361 F. 3d 80, 83 (1 st Cir. 2004)(“IDEA does not require a public school to provide what is best for a special needs child, only that it provide an IEP that is ‘reasonably calculated’ to provide an ‘appropriate’ education as defined in federal and state law.”)
17
Schaffer v . Weast , 126 S.Ct. 528 (2005) places the burden of proof in an administrative hearing on the party seeking relief.
18
Arlington attempted to discredit Dr. Roosa by attacking several of the tests that she administered and indicating minor typographical errors in her report. However, no testimony was offered to indicate that Dr. Roosa’s findings and recommendations were unsupported. In this regard, I disregard the testimony of Dr. Norris for reasons explained later in the decision. Dr. Norris stated that there was no such diagnosis as a language-based learning disability. However, the other Arlington witnesses acknowledged that Student had a language-based learning disability (testimony of Ms. Perry-Byer).
19
The June 2009 Amendment also contained information regarding the services that would have been available to Student had she attended Minuteman for high school. Since this option was rejected by Parents, any further discussion regarding Minuteman is irrelevant.
20
A Service Delivery Proposal signed by Ms. Allen and Parent dated June 1, 2009, contemplated that Student would receive unspecified direct instruction, by the special education staff, one for six times, fifty-six minutes each per cycle, and the other for three times fifty-six minutes each per cycle. It also contemplated once per week, fifteen minute consultation for speech and language, as well as another consultation between the regular education and the special education teacher (SE-2).
21
Regarding whether Mr. Sylvester was present or not at the June 2009 meeting, the record contains some inconsistencies. Mr. Sylvester did not sign the meeting signing sheet (PE-3), but Mother testified that he had spoken a bit about the double block English class at the June 2009 meeting.
22
In their closing argument, Parents suggested that a finding be made that Student is owed compensatory services in counseling but then argued that the remedy be addressed in supplemental pleadings following the entry of a decision as to future placement. Since an order requiring Student’s Team to re-convene in June 2010 is being issued to re-evaluate Student’s placement for the 2010-2011 school year, the Team shall address the manner in which Arlington will compensate Student. However, Parents’ right to bring any disagreement regarding compensation for counseling services is preserved.
23
Elaine Allen had testified that when she was providing academic support for Student, she was unable to address whether she comprehended her homework assignments on days when the academic support sessions fell early in the day. There was no system in place for Student to check in at the end of the day – nor is any such system proposed in either the June 2009 amendment or the 12/09 -12/10 IEP.
24
The previous IEP Amendment called for reading by a reading specialist three times per week, for 56 minutes each session, to be added to the C part of the grid.
25
Massachusetts regulations also require a proper certification. See: 603 CMR 7.14(9).
26
Arlington argued that in seventh and eighth grade Student’s performance was impacted by her attitude, and that at least with one provider, she was becoming somewhat defiant (testimony of Allen). Parent testified that Student was becoming so frustrated that she began to refuse going to school in the morning. In contrast Student has no problem waking-up at five in the morning to travel approximately an hour and a half to Landmark (testimony of Mother).