COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Student v. Belmont Public Schools
BSEA # 10-5170
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.
Parents filed a request for Hearing in the above–referenced matter on May 14, 2010. The case proceeded to hearing on July 28, and August 13, 16, and 19, 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 Mother
Student’s Father
Constance Hilton, Esq. Attorney for Parents
Ann Brochin Private Neuropsychologist
Dr. Marilyn Engelman Independent Evaluator
Ken Kramer Director of Student Services, Belmont Public Schools
Melissa Glotzbecker School Psychologist, Belmont Public Schools
Amanda Rei Guidance Counselor, Belmont Public Schools
Michael McAllister School Principal, Daniel Butler School, Belmont Public Schools
Alissa Goodrich High School Teacher, Belmont Public Schools
Stephen Krom Public School liaison, Landmark School
John Feerick Academic Case Manager, Landmark School
Mark Lefebvre High School Teacher, Belmont Public Schools
Erin McCarthy Special Education Teacher, Belmont Public Schools
Liaison to Parents during 2007-2008
Mary Gallant, Esq. Attorney for Belmont Public Schools
Laurie Jordan Court Reporter
Maryellen Coughlin Court Reporter
The official record of the hearing consists of documents submitted by Parents and marked as exhibits PE-1 through PE-74, and Belmont Public Schools’ (Belmont) exhibits marked as SE-1 through SE-431 , SE-45 through SE-552 , SE-57 and SE-58; recorded oral testimony and written closing arguments.
The deadline for submission of the Parties’ closing briefs was set at their request for Monday September 20, 2010. On September 10, 2010, Belmont’s Attorney requested an extension for filing the closing arguments via telephone, on the basis that the Parties had not yet received the transcript for the first day of hearing. In a letter dated September 13, 2010, Parents communicated their assent but requested that the briefs be due on September 27, as opposed to October 1, 2010, as had been previously requested by Belmont. It was agreed in a telephone conference that the record would close on September 27, 2010.
On September 27, 2010, Belmont again requested an extension of time to submit closing arguments until seven days following receipt of the transcripts for the last part of the fourth day of hearing (for personal reasons, the stenographer had been released prior to completion of the hearing and the remainder of the proceeding was recorded). Via Order issued on September 28, 2010, this request was granted in Part. Copies of the final tape were mailed to the Parties and closure of the record was extended to October 6, 2010. Said Order further stated that no further extensions for submissions of the closing briefs would be granted.
At 6:51 a.m. on Wednesday October 6, 2010, the BSEA received Parents’ electronic mailing of their closing argument. The first unfinished draft of Belmont’s closing brief was received at 5:01 p.m., also on October 6, 2010, along with a letter stating that she was experiencing computer difficulties and had only been able to email a version of her draft which she had saved earlier but which did not contain her edits, revision or the summary of the testimony of the final witnesses and her summary. Through the evening and into October 7, 2010, Belmont’s attorney continued to mail portions and finally the final draft of her closing argument. On October 7, 2010 via electronic mail, I responded to Belmont’s attorney reminding her that my instructions were clear that I would abide by the post–date stamped on the mailed draft of the closing briefs and that the electronic version was simply a fall–back. I further informed her that so long as the mailed draft was posted by the deadline there was no issue. An electronic mail containing the final version of Belmont’s closing brief was received at the BSEA on October 7, 2010. A hard copy of Belmont’s written closing argument was received on October 12, 2010.
On October 7, 2010, Parents’ attorney objected to Belmont’s closing argument requesting that the record close at the end of the business day on October 6, 2010, and requesting that all versions of Belmont’s closing argument received after October 6, be disallowed. Parents’ attorney argued that Belmont had already requested two extensions to submit briefs. The first extension was granted and the second extension had been partially granted. Belmont did not request nor was it granted a third extension and thereby, Belmont’s attorney had in effect given herself an additional extension, past the deadline, claiming computer problems. As such, Parents’ attorney claimed that Belmont’s attorney had violated Parents’ rights and the integrity of the hearing process.
The hard copy of Parents’ closing brief mailed on October 6, 2010 was received on October 7, 2010. The hard copy of Belmont’s closing brief was received at the BSEA on October 12, 2010.
On October 13, 2010 Belmont’s attorney wrote to the BSEA responding to Parents’ objection to her closing argument, offering additional explanations regarding the computer difficulties which had prevented her from submitting the final version of her document on October 6, 2010. She further requested that her letter be considered a request for further extension nunc pro tunc to October 6, 2010.
On October 14, 2010, Parents’ attorney wrote again stating that she had not received a hard copy of Belmont’s closing brief. Belmont’s attorney responded on October 15, 2010, stating that she had forwarded hard copies of her closing brief to both the BSEA and Parents’ attorney on October 7, 2010 and attached a copy of the stamped and dated envelope forwarded to Parents’ attorney on October 7 th .
While Parents’ attorney is correct that the Order of September 28, 2010 set the final date for submission of closing briefs, and that Belmont’s attorney did not email or mail the final draft by October 6, 2010 (the deadline), Belmont’s delay of less than one day is of no harm to Parents. I note that Parents did not oppose the previous extensions. Furthermore, accepting Belmont’s closing brief advances the Hearing Officer’s understanding of Belmont’s position, and as such, Belmont’s request for final extension nunc pro tunc to October 6, 2010 is granted.
The record in the above-referenced matter closed on October 7, 2010, upon receipt of the electronic version of Belmont’s final draft of its written closing argument.
ISSUES:
1. Whether the IEPs promulgated by Belmont covering the periods from 2008 to 2009 (10 th grade), 2009 to 2010 (11 th grade) were reasonably calculated to offer Student a free appropriate public education (FAPE) consistent with state and federal law meeting all of his educational needs;
2. Whether the IEP promulgated by Belmont covering the period from 2010 to 2011 (12 th grade) was reasonably calculated to offer Student a FAPE consistent with state and federal law meeting all of his educational needs; if not,
3. Whether Parents are entitled to reimbursement for their unilateral placement of Student at Landmark School (Landmark) for the 2008-2009, 2009-2010 and the 2010-2011 school years, as well as prospective placement through the end of the 2010-2011 school year.
POSITION OF THE PARTIES:
Parents’ Position:
Parents assert that even though Student is of average intelligence, his ability to make educational progress has been significantly impacted by his disabilities and Belmont’s failure to offer him appropriate language–based instruction.
Parents state that Student attended Belmont from kindergarten through the ninth grade and that despite the provision of special education services beginning in the first grade, Student failed to make educational progress commensurate with his potential. As a result, his academic skills fell several years below his age, grade levels and educational potential. Parents state that the programs and services offered by Belmont for the tenth, eleventh and twelfth grades at Belmont High School were not appropriate to provide Student a FAPE despite clear evidence available to the Team that he required an intensive and comprehensive special education program. They state that the IEPs offered for the high school years provided Student with the same inadequate services and the same type of program that he received in ninth grade. As such, Parents argue that the IEPs for the tenth, eleventh and twelfth grades were and/or are not reasonably calculated to provide him a FAPE.
In contrast, Parents assert that Student has made academic and educational progress at Landmark. Furthermore, Parents contend that Student continues to require, a comprehensive, coordinated special education program that can address both his language–based learning disabilities and his executive functioning deficits in the twelfth grade. Therefore, according to them, he continues to require placement at Landmark. Parents assert that at Landmark, Student will receive an appropriate special education program and he will be able to acquire the skills he needs to be a successful student and an independent member of his community post–high school.
Parents further assert that Belmont violated the procedural requirements of Massachusetts and federal law regarding transition planning, Team meetings, the development of IEPs, and three–year re–evaluations interfering with Parents’ right to fully participate in the decision–making process regarding Student’s educational program, and compromising Student’s entitlement to a FAPE.
As such, Parents state that they should be reimbursed for all out–of–pocket expenses associated with their unilateral placement of Student at Landmark for the tenth and eleventh grades, and further request that Belmont be ordered to draft an IEP that calls for Student’s continued placement at Landmark for the twelfth grade.
School’ Position:
Belmont agrees that Student presents with a specific language disability and executive functioning deficits, particularly in the areas of attentional and organizational skills and asserts that Student’s needs were appropriately met at Belmont High School through a combination of regular education using best practice teaching techniques, accommodations and support in the high school’s Learning Center. It states that Student made progress in his program in ninth grade and that had he stayed in Belmont, he would have been expected to progress through the IEPs offered for the tenth, eleventh and twelfth grades through an academically rigorous curriculum with supports.
Belmont states that it is a community of professionals who demand scholastic excellence from its public school system. It is committed to using best teaching practices and a universal design in the regular education classrooms. It has further adopted the Response To Intervention (RTI) model and argues that with minor exceptions it believes that all special education students with average cognitive level skills can be appropriately serviced within the regular education model. It further asserts that its professional staff is committed to the aforementioned model.
Belmont further maintains that Student did not, and does not, require a daily tutorial and or a specialized reading and written language service.
FACTS:
1. Student is a seventeen–year–old who resides with his mother in Belmont, Massachusetts. He has been found eligible for the provision of special educational services by Belmont due to a Specific Learning Disability (Dyslexia) and Attention Deficit Hyperactivity Disorder (ADHD). Additionally, he presents deficits with Visual–Motor Integration and Fine Motor skills (PE-45). He is currently enrolled in the twelfth grade at the Landmark School.
2. Student is of average cognitive abilities but has struggled to meet academic demands since kindergarten (testimony of Brochin, Engleman). Student’s disabilities impact all aspects of his reading and language skills and he has significant difficulties with all aspects of his executive functioning skills (testimony of Brochin; PE-34; PE-38).
3. Student attended the Winn Brook Elementary School in Belmont between kindergarten and the 4 th grade (PE-7; PE-38). He was first evaluated by Belmont while in the first grade. The January 2000 psychological evaluation by Judy Krengel noted weaknesses in skill acquisition as a result of attentional and organizational issues, and recommended participation in a very structured classroom with multiple supports for organization (PE-6).
4. An Educational Assessment conducted on January 11, 2000, showed that Student was performing at or near grade level in the academic areas evaluated, including in his reading skills. The evaluator however, opined that Student should continue to receive Language Arts Support to address his learning difficulties (PE-2).
5. On January 15, 2000, an Occupational Therapy (“OT”) Assessment was performed by Monique Redmond, OTLR/L. She noted Student’s “fidgety behavior,” difficulties with transitions, and distractibility. The evaluator stated that “overall, [Student] has moderate difficulty motor planning and modulating tactile stimulus which has affected his attention and visual motor development, affecting his classroom performance.” She recommended weekly direct OT services and accommodations, as well as a sensory diet in the classroom (PE-3).
6. In elementary school, Student received his education in regular education classrooms with special education support to address reading and written language deficits, and OT to address sensory and fine motor issues (PE-7; PE-8; PE-10). His third grade Reading MCAS resulted in a needs improvement score (PE-4).
7. A three–year re–evaluation performed by Belmont while Student was in the 4 th grade (the 2002-2003 school year) showed that Student continued to present difficulties with “motor planning, bilateral control and visual motor tasks. The impact of this [was] seen in his written product and decreased fine motor skills in occupational therapy sessions and in the classroom.” The OT evaluation noted gains in perceptual processing and documented deficits with sensory regulation. Continued OT services were recommended as well as over 14 accommodations (P-6). The Educational Assessment noted Student’s issues with focusing and staying on task and stated that he benefitted from increased structure, routine, and well-defined limits (PE-7). Progress with oral reading was noted but difficulties persisted in written communication and with organizing his thoughts. He required constant reminders from teachers to complete tasks. Math, however, was seen as an area of strength (PE-8; PE-9). Additionally, the psychological report of Charles Brown, Ph.D. agreed with the report and supported the recommendations of Parents’ independent evaluator (Dr. Penny Prather). Dr. Brown further recommended counseling for Student if signs of anxiety continued to show at home and in school (PE-12).
8. The IEP covering the period from February 1, 2003 to June 30, 2003 resulting from Belmont’s evaluations noted that Student struggled and was inconsistent in his ability to decode third grade text, and sated that he had not yet internalized the rules needed for decoding (PE-10). The IEP’s Present Levels of Educational Performance section identifies occupational therapy as Student’s area of educational need although other parts of the IEP document his ongoing difficulties with written language (specifically with the mechanics and organization of writing), decoding and organizational skills. The IEP stated that Student “continue[d] to present as a reluctant, hesitant writer at times in the classroom” and that he “often experience[d ] difficulties formulating what he want[ed] to say and putting those ideas on paper in an orderly fashion” (PE-10). It provided Student assistance in the classroom by the resource teacher, four times per week for forty minutes, and direct OT services once per week for thirty minutes ( Id. ).
9. On February 18, 2003, as part of the three year re–evaluation, Penny Prather, Ph.D., performed a neuropsychological evaluation of Student (PE-11). Dr. Prather noted that it was difficult for Student to sustain attention and stated that he showed deficits in some areas relative to executive functioning skills. She further noted that Student’s performance was better when the language-based tasks presented were explicit and very structured, but his performance decreased as the demands regarding initiation of tasks and organization increased. His reading skills were slightly below to significantly below his grade level, and his written language skills fell below grade level. Dr. Prather concluded that Student continued to present significant difficulties in the area of language arts (PE-11).
10. In April 2003, Charles D. Brown, Ph.D. performed a Psychological Assessment of Student on behalf of Belmont (PE-12). On the WISC-III, Student’s scores were as follows:
Full Scale: 97 42 nd %ile
Verbal Scale: 107 68 th %ile
Performance Scale: 87 42 nd %ile
Verbal Comprehension: 99 47 th %ile
Perceptual Organization: 87 19 th %ile
Freedom from Distractibility: 131 98 th %ile
Processing Speed: 104 61 st %ile
The evaluator agreed with Dr. Prather’s conclusion that organization of output was difficult for Student, but working memory appeared to be an area of strength. According to Dr. Brown “cognitive testing indicates that Student has strong verbal skills, which will be helpful to him in dealing with curriculum throughout his schooling.” In addition, he appears to have strengths in working memory; however, organization of output appears to be difficult for him, as indicated by Dr. Prather’s report” (P-12).
11. Student completed the 5 th , 6 th , 7 th and 8 th grades at the Chenery Middle School in Belmont. He participated in a “full inclusion” program and received his education in a regular education classroom with in-class special education services for all four school years. Additionally, beginning at the end of 5 th grade, he received “a structured phonics-based program conducted by the reading specialist”. The reading services consisted of two 45 to 60–minute, one–to–one tutoring sessions per week. Beginning in 7 th grade, in addition to the in–class support, he was provided with special education support in a resource room (PE-13; PE-19; PE-22; PE-25; PE-30; PE-31; PE-38).
12. Student’s Team convened on May 5, 2003, to develop the IEP covering the period from September 1, 2003 to June 30, 2004, Student’s fifth grade (PE-13). Under Present Levels of Educational Performance the IEP stated: “Factors associated with deficits in reading and written language skills hinder [Student] in effectively addressing curricular materials. [Student] continues to struggle when decoding unfamiliar words. Although oral reading has shown some improvement, [Student] continues to be a word by word reader. The physical effort of putting ideas on paper continues to be challenging for [Student] in several areas: focus to task, organization of ideas, spelling/punctuation, and fatigue from weaker fine motor skills.” Goals in the areas of decoding, fluency of oral reading, written language, spelling, and study/organizational skills were included. The IEP offered thirty minutes per month of OT consultation as needed, and Resource consultation thirty minutes per six day cycle. The Resource teacher would also provide ten 50–minute periods of resource services in the regular education classroom per 6 day cycle. Under Additional information, the IEP states that Student would be provided guidance support as needed (P-13).
13. On January 5, 2004, Student was evaluated at the Learning Disorders Unit at Massachusetts General Hospital (“MGH”) by Gretchen Timmel, M.Ed. She noted that Student required a great deal of re–direction during the exam due to impulsivity and difficulties focusing his attention. According to Ms. Timmel, Student’s difficulties sustaining attention increased dramatically as the testing unfolded. She found Student’s Verbal Ability score to fall in the high average range (Standard Score (“SS”)– 115, 84 th %ile) as measured by the Differential Abilities Scale (“DAS”), a test of cognitive functioning. With a SS of 112, the 79 th %ile, his Non-Verbal Reasoning Ability and abstract reasoning ability at the 92 nd %ile, also fell in the high average range. Student’s Global Conceptual Ability (GCA), where he scored 113 (81 st %ile) also fell in the high average range while his Spatial Ability Cluster score was in the average range (SS- 107, 68 th %ile). Student’s math skills were in the Average range. On the Woodcock Reading Mastery Tests (“WRMT”), the Wide Range Achievement Test-3, and the Gates-MacGinite Reading Tests, his skills ranged from beginning second grade to beginning third grade. His spelling skills were at the second grade level. Ms. Timmel noted that Student’s weak decoding skills contributed to his difficulties with reading comprehension and spelling (P-14). Ms. Timmel also performed several assessments, which showed Student’s attentional difficulties (PE-14).
14. Student’s IEP was amended in late January 2004 adding one 30–minute session per week of direct OT services (PE-15; PE-16). Parents accepted the IEP and amendment on February 10, 2004 (PE-16).
15. On January 27, 2004, Peter Rosenberger, M.D., the Director of the Learning Disorders Unit at MGH, wrote to Sally Smith the then Director of Special Education in Belmont. Dr. Rosenberger diagnosed Student with a combination of a specific dyslexia, which he characterized as significant, and attention deficit which made school difficult for an otherwise “neurologically intact and normally intelligent boy.” He made several school–based recommendations including: 1) provision of a highly systematic rule–based intervention on a one–to–one or small group basis, at least three times per week to address Student’s dyslexia and reading skills deficits; 2) “curriculum support assistance, to help him cope with subjects requiring reading and writing”, and 3) accommodations, including the use of a word processor with a spell checker.” He warned that the classroom was not a setting in which student “functioned with peak efficiency” and instead recommended access to “a quiet place to study in a setting free of distractions.” Dr. Rosenberger also recommended placing Student on a small dose trial of stimulant medication on school days (PE-17).
16. In April 2004, a new IEP offering participation in a full inclusion program for the remainder of the fifth grade and part of sixth grade (May 2004 to May 2005) was developed. For the remainder of fifth grade, Student was provided with two 60–minute sessions per week of one–to–one reading tutoring outside the general education classroom; twelve fifty minute sessions per six day cycle of in–class resource/special education support; and one thirty minute resource consultation per six day cycle (PE-19). In the sixth grade (the 2004-2005 school year), Student would only receive twelve, fifty minute sessions per six day cycle of in–class academic support and consultation, thirty minutes per week by the special education teacher and fifteen minutes per six day cycle by the occupational therapist. The Additional Information section of the IEP states that guidance support was available, as needed and that Student would “continue to participate in a structured phonics–based program conducted by a reading specialist” for both school years (PE-19).
17. Progress reports for the fifth grade note continued difficulties with carryover to daily work, inability to read the whole text on his own, inattention and highly distracting behaviors in the classroom impacting his work product requiring constant cueing and prompting from teachers, and producing work only when on a one–to–one or small group setting with a teacher. Progress was noted in English Language arts with the assistance of the Wilson Reading Program where he was reported to have reached level seven. No information was provided regarding the occupational therapy goal (PE-18).
18. Student’s Team convened on June 1, 2005, to develop his seventh grade IEP. The IEP covering the period from September 7, 2005 to June 20, 2006 offered Student participation in a full inclusion program to address his Specific Learning Disability–Dyslexia. This IEP reduced the amount of in–class academic support by the special education teacher to six fifty minute sessions per six day cycle and added four fifty minute sessions of Academic Support per six day cycle in the special education resource room to address Student’s reading, written language, study and organizational skills, and Mathematics goals. The special education teacher would also provide a once per week thirty minute consultation. Additionally, the IEP provided a ten day, one–and–a–half hour long, summer skills program. The IEP noted Student’s below grade level reading skills and difficulties with attention, organization, and written production. The Additional Information section provided the same specialized reading services noted in the previous IEP (PE-22). Parents partially rejected the proposed IEP on July 15, 2005, and requested that the IEP specify that Student would be provided with twice per week 45–minute each reading tutoring sessions (PE-22).
19. On September 9, 2005, at the beginning of Student’s seventh grade at the Chenery Middle School, his Team reconvened and proposed an Amendment clarifying that Student receive specialized reading services twice per week for fifty–minutes each sessions (PE-22).
20. On December 2005, Belmont conducted a three–year re–evaluation of Student (PE-23; PE-24). The educational evaluation was performed by the resource room teacher, Michael Bruno. He noted that Student was cooperative and careful in his responses asking for periodic breaks. According to the evaluator, Student put forth good effort in two of the three sessions, giving–up when the written language subtests became unmanageable to him. Mr. Bruno noted that the physical task of writing was frustrating for Student concluding that Student would have difficulty with any lengthy writing assignment. The results of the Woodcock–Johnson III Tests of Achievement, showed that all of Student’s language–related skills (reading, written expression and spelling) fell several years below grade level. Student’s Broad Reading Skills were at a 4.7 grade level (19 th %ile), Broad Written Language Skills were at a 4.3 grade level (13 th %ile), Basic Reading Skills were at a 4.9 grade level (29 th %ile), and his Basic Writing Skills were at a 4.5 grade level (19 th %ile). Math skills continued to be an area of strength and he performed above some of his peers in the quantitative concepts subtest. Mr. Bruno recommended addressing Student’s “difficulties with reading comprehension and basic English grammar and usage” (PE-24).
21. Student’s Team met on January 9, 2006 to plan for the rest of Student’s seventh grade and part of the eighth grade. In this IEP which covered the period from January 2006 through January 2007, Student’s disability was again characterized as a “Specific Learning Disability –Dyslexia.” The IEP notes Student’s difficulties with reading, written language, and organization/work habits and provided goals relative to these areas. Both the in–class and pull–out academic support services in this IEP were the same as in the previous one but it increased academic support under part C of the grid to six 50–minute sessions per six day cycle for eighth grade. Consultation by the special education teacher would continue to be offered once per week for thirty minutes and the summer skills program was also offered as in the previous IEP. The Additional Information section provided that Student would “continue to participate in a structured phonics–based program conducted by the reading specialist 2 x 50 min/cycle” (PE-25; SE-21). Seventh grade progress reports indicate that Student was making progress towards his goals and that he would meet his goals except in the area of study/organization skills (PE-26). Student’s seventh grade final grades fell in the C range for all of his subjects (English, Math, Social Studies, Science and Spanish) except for physical education (A-), Tech Education (B+) and Computer A- (PE-27)3 .
22. The seventh grade English Language Arts and Mathematics MCAS resulted in a needs improvement in both subjects (PE-28).
23. Student attended the Chenery Middle School for the eight grade, the 2006-2007 school year. Student’s Team reconvened in October 2006 and after reviewing an independent occupational therapy evaluation conducted by Janet Reilly, MOT OTR/L, amended the IEP adding one thirty–five minute session per week of OT (PE-29; PE-30). Parent accepted the amendment on November 2, 2006 (PE-30).
24. Student’s Team met again on January 23, 2007 and developed an IEP for the remainder of the eighth grade. The IEP continued the same services that Student was being provided under the previous IEP (PE-31). On May 1, 2007, Parent fully rejected the IEP (PE-31).
25. The Team met again on May 29, 2007 at which time Mother expressed concerns regarding Student’s lack of effective progress and requested services to remediate Student’s reading deficits (testimony of Kramer; PE-32; SE-46). A new IEP, covering the period from May 29, 2007 to May 28, 2008, was developed (the remainder of eighth grade and most of ninth grade) (PE-32). The new IEP offered Student participation in a full inclusion program. The service delivery grid called for consultation by the special education teacher once per week for thirty minutes; no services under the B section of the grid and eighteen sessions, twenty–six minutes each weekly of resource room services by the special education teacher; and twelve hours of summer tutoring (PE-32). No OT or transition planning is provided in the IEP. The Additional Information section of this IEP no longer contains the language related to provision of reading services. Instead, it states:
Belmont Public Schools will reassess [Student’s] academic and cognitive performance during Summer 2007 (P-32).
On July 25, 2007, Parent rejected the proposed IEP and the placement (P-32).
26. On June 8, 2007, Toby Vogel, Student’s reading teacher, performed a reading skills assessment. She administered the Qualitative Reading Inventory, “an individually administered informal reading inventory designed to assess word attack skills, oral reading, and comprehension”. She stated that Student’s “oral reading was marked by omissions and/or additions of small words and word endings. He did not always self-correct for meaning. He read without expression, and often ignored punctuation” (PE-33). Student was able to read seven out of 10 questions providing six correct answers at the frustration level. Her report notes that Student identified 80% of the 6 th grade list, which corresponds to the “(instructional level)” and “50% on the upper middle school list (frustration level).” On the Gates-MacGinite Reading Test, “a paper and pencil test providing a grade level measure for both vocabulary and comprehension,” Student scored at the 7.4 grade level on the vocabulary section and a 6.4 grade level on the comprehension section (P-33). Ms. Vogel stated that although Student had made progress, he continued to struggle with comprehension skills and word analysis, and recommended that he receive reading support over the summer and into the following year, Student’s ninth grade (PE-33).
27. Eileen Wiznitzer, Psy.D., school psychologist in Belmont, performed a psychological assessment of Student on June 13, 2007. She administered the WISC-IV which resulted in the following scores:
Full Scale IQ Score: 95 37 th %ile
Working Memory: 107 68 th %ile
Verbal Comprehension: 102 50 th %ile
Processing Speed: 78 7 th %ile
Perceptual Reasoning: 94 34 th %ile
She stressed the need for Student’s teachers to understand his strengths and weaknesses including his difficulties with application of organizational strategies and processing speed. She also recommended that time for quizzes and exams be extended, that he receive organizational support when producing multi-step projects to help break down the smaller parts and then linking the parts; and recommended that he be assisted in developing strategies to stay on task so as to complete academic work, keep track of assignments and homework (PE-34).
28. Progress reports through April of Student’s eighth grade year show that in reading Student had made progress with recall of ideas and information although support was still required to assist him evaluate the author’s purpose, draw conclusions and with inference skills (PE-36). When he was able to overcome distractions he was able to concentrate on “spelling, grammar, punctuation, and paragraph structure in his writing.” Overall, writing continued to be a source of frustration for Student and progress towards reaching the benchmark was therefore, minimal. Similarly, he was using his organizational system inconsistently and task initiation and transition periods were difficult. He continued to have difficulties recording assignments and turning them in on time, and impacting his class–work completion record in math where he had spent most of the first part of the year reviewing the material covered during the previous year. The occupational therapist found that Student understood the concept of a sensory diet and found it helpful to take breaks or move around. In OT he was able to write five to six sentences legibly and used proper punctuation and grammar and capitalization with minimal cues. The OT also noted that it had become harder for him to copy information from a far point. Student was expected to meet some but not all of his benchmarks by the end of the school year (PE-36).
29. The eighth grade English Language Arts, Mathematics and Science and Technology/Eng. MCAS resulted in a needs improvement in all subjects (PE-35).
30. Student’s final grades in the eighth grade were: D in English, B in Algebra, B in Social Studies, C in Science, C- in Spanish, B+ in Reading, A- in Learning Center, C+ in Physical Education, C+ in Art, B- in Computer, and C/B in Health. Student’s English grade for all four periods was C+ for the first quarter, C- for the second quarter, D- for the third quarter and D- for the fourth quarter (PE-37).
31. During July and August 2007, Ann Brochin, Ph.D., performed a Neuropsychological Evaluation of Student, at Parents’ request (PE-70; PE-38). She noted that on the subtest of the WISC-IV, Student’s overall scores fell within the average range but they showed significant variability. Student’s scores were as follows:
Full Scale IQ: 101 53 rd %ile
Verbal Comprehension: 100 50 th %ile
Perceptual Reasoning: 98 45 th %ile
Working Memory: 110 75 th %ile
Processing Speed: 91 27 th %ile
On the Comprehensive Test of Phonological Processing which assesses “phonological awareness and rapid naming, two skills which are heavily implicated in reading achievement”, Student’s scores ranged from the 2 nd percentile to the 5 th percentile. Dr. Brochin also administered assessments relative to Student’s executive functioning skills which demonstrated his poor organizational and other skills (PE-38; testimony of Brochin). According to her, academic testing demonstrated Student’s “profoundly reduced skills in reading” and written language. On the WIAT-II, Student’s Standard Score for Word Reading was 75 (4.8 grade equivalent) and his SS for Pseudoword Decoding was 76 (2.6 grade equivalent), both at the 5 th percentile. On the Gray Oral Reading Tests-Fourth Edition Student scored: Rate: SS – 4 (2 nd percentile, 3.7 GE), Accuracy: SS – 1 (<1 st percentile, 1.7 GE), and Fluency: SS – 1 (<1 st percentile, 2.7 GE). Student’s scores for the written language portions of the WIAT-II were at the 1 st percentile (3.1 GE). Student’s math score on the Arithmetic portion of the WIAT-II was an area of strength at the 39 th percentile (8.3 G.E.), although below grade level compared to typically developing peers (PE-38).
32. Dr. Brochin concluded that Student’s profile was consistent with severe dyslexia and a language–based learning disability in the context of solid cognitive skills. Student was “the most severely dyslexic student” at his age that she had ever tested. She also noted his significant executive functioning weaknesses and the diagnosis of ADHD. Dr. Brochin expressed concerns regarding Student’s emotional well–being, stating that “years of failing to achieve has taken a toll on [Student’s] self-esteem, confidence and overall emotional functioning” and that his “chronic failure to acquire literacy skills” had affected his emotional functioning. According to her, Student was in despair, he felt defective and humiliated about being illiterate (PE-38; testimony of Brochin). She explained that Student’s language–based and executive functioning issues were intertwined and that he required a program that addressed both ( Id. ).
33. Dr. Brochin opined that at the time of her evaluation, placing Student in the general education setting was contraindicated and instead recommended that Student:
be placed in a fully–integrated program in which all of his teachers have expertise and training in the instruction of students with language–based learning disabilities and dyslexia. [Student] requires a placement in a program that allows him to be educated in a small group setting (e.g., 6-8 students maximum) throughout his entire school day. He requires a daily, 1:1 tutorial to provide intensive intervention in decoding, reading text for fluency, and comprehension. His phonics instruction should be with one of the research–based, highly structured, multi–sensory programs in which there is constant assessment of skills acquired. His entire program should be highly structured…[and]…paced according to[Student]’s needs and ability to acquire skills…Skills for reading and writing need to be reinforced all day, regardless of the subject.” “[Student]’s writing program should be coordinated with his reading program” … “with the opportunity to work with his teacher in a 1:1 setting.” “Given [Student]’s executive functioning weaknesses, …study skills and the management and organization of his schoolwork be integrated into the curriculum in all of his classes” (PE-38).
34. Dr. Brochin was not provided with Dr. Wiznitzer’s report prior to her evaluation of Student, or at any other time following her evaluation, including at subsequent Team Meetings that she attended at Belmont High School (PE-38; testimony of Brochin). Dr. Brochin did not speak with any of Student’s teachers or service providers in Belmont when she conducted her evaluation (testimony of Brochin).
35. On August 14, 2007, Parent wrote to Ken Kramer in Belmont seeking immediate remediation for Student consistent with the recommendations of Dr. Brochin, who found Student to be at emotional and educational risk. Parent also alerted Belmont that Student would be further evaluated by Dr. Stephen Auster and that Parents were seriously discussing whether Student would be attending Belmont High School (PE-39).
36. In August 2007 Student applied to the Landmark School seeking admission for the 2007–2008 school year. The result of Landmark’s admissions screening dated August 29, 2007, showed Student’s reading skills deficits. On the WRMT-Revised, Student’s standard score on Word Identification was 86, placing him in the seventeenth (17 th ) percentile and his score on Word Attack was 78, placing him in the seventh (7 th ) percentile. Perceptual–Motor testing showed graphomotor weaknesses and short–term memory for non–contextualized information. Assessment of his written output demonstrated weaknesses with work attack skills, sound/symbol correspondence, phonological weaknesses and weaknesses with decoding (PE-40).
37. Student attended ninth grade in Belmont High School (the 2007–2008 school year), receiving all of his academic courses at the regular education college preparatory level (CP) the lowest level classes at Belmont High School (PE-41; PE-45; PE-48; SE-9; testimony of McCarthy, Brochin). Student also received two Learning Centers, with Erin McCarthy (testimony of McCarthy). In the Learning Center, Ms. McCarthy worked with Student on previewing and reviewing concepts, reinforced content areas, assisted with organization, prepared notes, assisted with completion of in–class work and homework, assisted with writing process and reading comprehension, and offered study skills instruction. For Student, the main focus was on reading, writing and organization. She also coordinated with the regular education teachers. At the times that Student accessed the Learning Center there were between five and eight students per session with Ms. McCarthy and a paraprofessional. Both sessions offered Student similar services. All of the students in her Learning Centers presented with different disabilities but no other student had a co–morbid, executive functioning and language–based learning disabilities (testimony of McCarthy). Additionally, Ms. McCarthy, or her para–professional was present during Student’s college preparatory Algebra I class. A different special education teacher, Mr. John Sullivan was present in Student’s ninth grade English Language Arts class twice per week (testimony of McCarthy). In ninth grade Student also met with Ms. Amanda Rei, school counselor who helped familiarize Student with the high school and provided orientation. She met with Student individually at least six or more times in ninth grade and also met with him between three and five times in a group (testimony of Rei).
38. The Team re–convened on September 11, 2007. At the meeting, Toby Vogel, Student’s middle school reading teacher, recommended that he be provided with reading services in the in the ninth grade and Parent requested a daily reading tutorial. Dr. Brochin requested that Belmont place Student in an out of district school that offered language–based instruction and specifically recommended the Landmark School. Dr. Brochin testified that it was the first time that she requested that a student be placed in an out of district program at a Team meeting (testimony of Brochin, McCarthy, Kramer).
39. Ms. McCarthy testified that at the Team meeting she used a copy of the then–current IEP and made notes on it. This document became the draft IEP reflecting the Team meeting summary. She repeated this process at some of the subsequent Team meetings. The draft IEP of September 2007, contained the same services on the Service Delivery grid reflected in the previous IEP, that is resource room services under the section of the grid at a rate of eighteen times per week for twenty six minutes each (18 x 26). The Additional Information section further stated: “the Team recommended that [Student] receive tutoring services in school from a reading/writing specialist for 4-5 hours per week” (SE-50). Following the meeting, Belmont did not provide a copy of the “draft IEP” to Parents4 . The record reflects that Belmont did not develop an IEP or an IEP Amendment subsequent to this Team Meeting reflecting provision of a tutorial and/or any specialized reading/written language services to Student (SE-50; testimony of McCarthy, Kramer). Student however, received direct remedial instruction through the Orton–Gillingham tutorial with Ms. Paykuss. According to Ms. McCarthy, the IEP did not have to reflect the specialized service provided to Student one–to–one on a pull–out basis because this was a service that Belmont offered to any regular education student at the high school (testimony of Ms. McCarthy, Kramer). Ms. McCarthy offered Student support services in the Learning Center that would allow him to access the curriculum. She also assisted him with completion of content areas class and home–work (testimony of McCarthy).
40. Belmont follows an RTI model. All of Student’s Belmont’s regular education teachers provided instruction in keeping with “best teaching practices” and universal design to assist with its academically rigorous curriculum which is aligned with the Massachusetts Curriculum Frameworks (testimony of Virgilio, Prevost). Regular education teachers also provide differentiated instruction to disabled students in their classrooms (testimony of McAllister). Study skills are an integral part of Student’s curriculum. Belmont High School offers three levels for each grade, those are, the college preparatory level, honors level or advanced placement level. The college preparatory is the lowest level programming offered in the high school (testimony of McCarthy). Students in Belmont may be recommended for participation in the PM Campus program which offers after school support, four afternoons per week, and is staffed by two special educators. The program is designed to assist students with homework completion and is not limited to students on IEPs, although several of the students who participate in the PM program in Student’s ninth grade were on IEPs. The service need not be on a student’s IEP in order for a student to access the PM program. Student was not offered participation in the PM program in ninth grade because it conflicted with his swimming in the afternoons (testimony of McCarthy). Ms. Melissa Goodrich, Mr. Lefebvre (science teacher) and McAllister (social studies teacher) offered testimony regarding their approach to instruction in the specific subject taught by them, but none of them had personal knowledge of Student, they never offered him services in the ninth grade, and they would not have offered him services in tenth, or eleventh grades. Ms. Goodrich may or may not have been Student’s English Language Arts teacher in twelfth grade (testimony of Goodrich). Ms. Christina Virgilio, Student’s ninth grade Algebra 1 teacher and Ms. Kelly Prevost, Student’s World History teacher in ninth grade college preparatory level, held proper DESE credentials as regular education teachers for the subjects they taught (SE-42; testimony of Virgilio, Prevost).
41. Mr. Ken Kramer, Belmont’s Director of Student Services testified that Belmont does not have substantially separate learning disabilities programs in Belmont High School because Belmont has found it to be best practice to support those students within the context of regular education classrooms with accommodations and curriculum modifications. Belmont believes that average cognitively–able students should be educated and exposed to the rigorous curriculum in regular education (testimony of Kramer). Ms. Glotzbecker opined that differentiated instruction in the regular education classroom was more important than language–based instruction (testimony of Glotzbecker).
42. In October 2007, Marilyn Paykuss, M.Ed., C.A.G.S., initiated provision of three hours per week (two hours of which were dedicated to reading support), one–to–one tutoring to address Student’s reading, written language and spelling difficulties on behalf of Belmont. Ms. Paykuss implemented the Orton–Gillingham teaching methodology, a rule–based systematic, structured, sequential, phonemic approach to reading, spelling and writing for students with dyslexia and language–based learning disabilities. Student’s IEP for the 2007–2008 school year does not reflect this service (PE-44; testimony of Paykuss, McCarthy, Kramer). According to Ms. McCarthy and Mr. Kramer it was Belmont’s practice to include all services delivered to a student in their IEP. However, because the district had adopted an RTI model, remedial literacy tutoring/instruction, tutoring or access to the PM campus were not typically included in the IEPs because these services were provided to both special education and regular education students. Also, because student participation in some of the programs was voluntary and/or because participation is some services was based on teacher recommendation, these were not included in IEPs (testimony of McCarthy). Mr. Kramer further explained that services were not listed in a student’s IEP if their provision was the result of circumstances somewhat outside the Team process, such as when a Parent requested provision of a service that the Team did not think the student needed, or whether the intended service is an intervention as opposed to it being intended to bring about remediation (testimony of Mr. Kramer). As such, according to Ms. McCarthy and Mr. Kramer, Student’s IEP need not be amended to reflect the remedial literacy tutorial with Ms. Paykuss (testimony of McCarthy, Kramer). According to Mr. Kramer, DESE has instructed Belmont that only information and services which are a departure from what is offered as part of the regular education curriculum needs to be in the IEP (testimony of Kramer). Specifically, regarding Student and the Orton–Gillingham tutorial was viewed by Belmont as a support service which could be delivered to regular education and special education eligible students alike to help them access Belmont’s rigorous curriculum as part of the RTI model (testimony of Kramer). Even when Belmont agreed to offer Student the Orton–Gilingham tutorial, the school–based team did not consider it a necessity in order for Student to access the curriculum (testimony of Kramer). During the 2007–2008 school year, Student was Ms. Paykuss’ only Belmont student (testimony of Paykuss).
43. Ms. Paykuss’ progress reports for the period from October 2007 to December 2007 describe Student as benefitting from the reading services describing Student as a cooperative, motivated, hard–working individual who was eager to learn and who was making progress. He was working on level 2, which reflects an elementary level of skill, but the one to five levels in Orton–Gillingham instruction do not correspond to grade levels (PE-44; testimony of Paykuss).
44. The December 2007 IEP progress reports note that Student was making a genuine effort in the target areas but was still presenting difficulties in areas such as organization and study skills. He was expected to complete his reading and Math goals by the end of the IEP cycle, but according to Ms. McCarthy, additional self–monitoring would be required to meet his English language arts/writing goals and would also need to concentrate more on turning in his homework on time and organize his materials better if he were going to meet his organization and study skills goals (PE-47).
45. On December 3, 2007, Dr. Brochin observed Student in the Learning Center and in his regular education History class at Belmont High School. Dr. Brochin noted that the Belmont High School program was not appropriate for Student because the regular education classes were not appropriate for Student and the Learning Center was not designed to meet the needs of students with a primary diagnosis of a language–based learning disability; there was no direct instruction in phonics and no explicit instruction in writing skills. The program in Belmont did not offer Student the type of specialized instruction she had recommended for Student who exhibited a “stunning weakness in his ability to decode words and read fluently”, deficits with “phonological awareness and rapid naming” as well as writing deficits, contributing to his ongoing emotional distress, lack of self–esteem and confidence. Student had expressed his anxiety to Dr. Brochin over his embarrassment and fear of being illiterate (PE-42; testimony of Brochin). According to Dr. Brochin, this fourteen year old ninth grader
… had never read a book for enjoyment, could not read a menu, street signs or labels on medication bottles (PE-42).
46. A letter from Dr. Florence Lai, M.D. of the Massachusetts General Hospital dated January 7, 2008 states that Student presented with one of the most severe cases of dyslexia she had seen in her twenty five years of evaluating patients at the Massachusetts General Hospital Learning Disorders Unit. Dr. Lai notes that previous testing performed when Student was in the fifth grade noted the severity of Student’s dyslexia. According to her, the results of testing conducted on or about January 3, 2008 demonstrated that Student’s situation had deteriorated, rendering this otherwise intellectually bright Student almost illiterate as a result of inadequate educational services by the public school (PE-43).
47. On January 18, 2008, Student’s team met to discuss Dr. Brochin’s observation report. At the meeting, Ms. Paykuss recommended that Student’s weekly tutoring be increased and add two hours to concentrate on writing skills utilizing aspects of the Project Reed verbalizing and visualizing approach. Belmont agreed to provide two additional hours per week of one–to–one Orton–Gillingham tutoring and writing skills work, for a total of five individual tutorial hours per week with Ms. Paykuss. The record lacks the draft IEP and summary of the Team’s discussions and Belmont did not develop an IEP Amendment reflecting the changes relative to his reading tutorial with Ms. Paykuss (SE-12; SE-51; testimony of Brochin, McCarthy, Paykuss, Kramer).
48. Ms. Paykuss’ second progress report for the period from January 2008 to March 2008 notes that Student continued to work on level two of the Orton–Gillingham program. He continued to work hard and progress with the reading and writing assistance offered by Ms. Paykuss. The final progress report for the period from March to May 2008 states that he continued to progress as he worked on level two and level three concepts of the Orton–Gillingham program. In writing, he continued to work on sentence formulation, spelling and editing. In all of her progress reports, Ms. Paykuss recommended that Student continue to receive Orton–Gillingham and writing instruction (PE-44; SE-12). She specifically recommended that the five hours of individualized instruction in the aforementioned areas continue in the tenth grade (testimony of Ms. Paykuss).
49. Student’s Team reconvened on March 14, 2008. At that time, it had Ms. Paykuss recommendation for continued Orton–Gillingham and writing tutoring, a service that according to Parent, Student found helpful, and Dr. Brochin’s evaluation and observation reports. Belmont did not provide a summary of this Team Meeting to Parents (SE-52; testimony of Parent, McCarthy, Kramer).
50. On June 13, 2008, Student’s Team held the annual review. Belmont forwarded a Notice of Proposed School District Action and a proposed IEP covering the period from June 13, 2008 to June 13, 2009 (Student’s tenth grade) on June 26, 2008. The proposed IEP offered Student participation in a partial inclusion program at Belmont High School. It was proposed that Student receive all of his academic courses in regular education classrooms with participation with assistance in the learning center. The service delivery grid specifically called for a daily thirty minute consultation between the special education teacher and the regular education staff under the A plot, and eighteen times, twenty six minutes each, five days per week academic support by the special education teacher under the C plot as direct services in other settings. The IEP qualified Student for special education under the category of Specific Learning Disability (Dyslexia), and further states that Student carried a diagnosis of Attention Deficit Disorder (ADD) and states that he presents visual-motor integration and fine motor skills difficulties (PE-45, testimony of McCarthy). It identifies reading and language skills deficits including: reading (decoding), writing (spelling), sight word vocabulary, word analysis, and processing of words (PE-45). It also states that tracking of print impedes reading fluency and identifies the following additional areas of need: “organization/working habits, transitioning to another subject activity, organizing personal belongings and materials, beginning work and sustaining attention, impulsive learning style, organization of thoughts for multi-paragraph compositions, written production, mechanics of writing, revision and editing of work and handwriting and board copying” (PE-45). This IEP lacks provision of any specialized reading and writing services and does not contain a transition plan form ( Id. ).
51. The Additional Information section of Belmont’s proposed tenth grade IEP stated:
During the 2007-2008 school year, [Student] received 5 hours of private tutoring from a Orton-Gillingham specialist in both Reading and Writing. Over the summer, [Student] will be attending the Landmark School. The Team will reconvene in the fall 2008 to discuss how it went. Furthermore, similar to the 2007-2008 school year, next year [Student] may access the PM Campus Program as needed.
The IEP stated that the next three-year re-evaluation was due by January 15, 2009 (PE-45). Father accepted the IEP program and placement in full on July 18, 2010, but Mother fully rejected the IEP on July 26, 2008 and requested that the Team reconvene to discuss what was causing Student to fall behind as well as Student’s performance in the Landmark summer program to ascertain if Student should attend Landmark full time in the fall 2008 (PE-45).
52. Student scored 230 equivalent to a “Needs Improvement” in his science and technology ninth grade MCAS5 (PE-46).
53. Student’s grades in his college preparatory level (lowest academic level offered by Belmont), ninth grade courses were:
Subject – 1 st 2 nd MID EXAM – 3 rd 4 th FIN EXAM – MID GRADE – FINAL GR.
Learning A- B B+ A A- A-
Center
Learning A- A- A- A A- A-
Center
English 9 C- D+ D D+ C C+ F C-
Algebra 1 C- C- D+ C- C+ B- D C
Fr Physics D D+ C- D+ D D C D+
World C- C- B- C C D+ B- C
History
Wellness I Pass Pass Pass Pass Pass Pass (PE-48; SE-8).
54. Emails from Student’s teachers to Erin McCarthy during the 2007–2008 school year note Student’s difficulties with sustained attention and the teachers’ frustration with his serious organizational issues, and inability to turn in homework consistently (even when they believed that he might have done the homework.) The emails also note the teachers’ willingness to offer Student repeat tests or quizzes to improve his grades and make exceptions for him to turn in missing homework assignments. The teachers further noted difficulty in getting Student to “write anything down” or complete worksheets in class (PE-56). Ms. Prevost, Student’s world history teacher, and Ms. Virgilio, his Algebra 1 teacher, described Student as easy–going and socially appropriate (testimony of Prevost, Virgilio). According to Belmont, any social/emotional difficulty experienced by Student was the result of family related issues. Ms. Virgilio testified that she was pleased with Student’s progress in Algebra I in ninth grade (testimony of Virgilio). Student’s eighth grade report card shows that he had taken Algebra in the eighth grade (SE-14). Math was considered an area of strength for Student in Belmont although his ninth grade IEP contained a goal for mathematics (SE-15; SE-17; SE-26; testimony of Virgilio). Ms. Virgilio testified that she worked closely with Ms. McCarthy to keep Student organized and that she implemented many accommodations and made modifications to help student stay organized and ready to work (testimony of Virgilio, McCarthy).
55. Student attended the Landmark School summer program for the summer 2008 funded by the Belmont Public Schools. According to the Landmark staff, he worked very hard to improve his writing, math and marine science courses, displaying consistent effort and making steady progress. Additionally, he received five hours per week of one–to–one Orton–Gillingham tutorial with Ms. Paykuss between July 8 and August 14, 2008 (PE-49; PE-54; testimony of Krom, Paykuss, Kramer). Her report addressing summer services, dated October 20, 2008, and received in Belmont on October 23 rd notes that Student
… continues to make progress with the Orton–Gillingham program. It appears that [Student’s] recall of words connected to particular phonemes has improved. This is evidenced by his quicker speed in thinking up and expressing words. [Student] Is demonstrating fewer spelling errors in the dictation and writing portions of the program. His penmanship has improved and he presents with greater confidence. [Student] continues to be a hard worker and a pleasure to work with. He would greatly benefit from continuation with the Orton–Gillingham program (PE-54; testimony of Paykuss).
56. In August 2008, Landmark accepted Student for the 2008-2009 school year. On August 13, 2008, Parent wrote to Ken Kramer, Belmont’s Director of Student Services, informing Belmont of her intention to place Student at Landmark and seeking public funding for his placement as well as provision of transportation (PE-50).
57. Via letter dated September 3, 2008, Mr. Kramer notified Mother that a recommendation for an out–of–district placement ought to be predicated upon evaluative documentation showing that Student’s disability was impeding his ability to progress effectively, and requiring the out–of–district placement as the least restrictive environment appropriate to meet Student’s need. Mr. Kramer further stated that Belmont would not support placing Student at Landmark (PE-51). On September 10, 2008, Mother wrote a second letter to Mr. Kramer reiterating her request and attached a letter from Dr. Lai supporting placement of Student at Landmark (PE-52; PE-53). In a second letter dated September 15, 2008, to Mother, Mr. Kramer stated that while he would be happy to meet with her, a meeting would not alter Student’s IEP or Belmont’s decision to offer Student placement at Belmont High School (PE-53). No meeting between Mother and Belmont’s Team or Mr. Kramer took place until the end of the 2008–2009 school year.
58. Even though Student’s previous IEP (PE-45) noted in the Additional Information section that Belmont would convene Student’s Team in the fall of 2008 to discuss Student’s performance at Landmark, Belmont did not convene the Team meeting at any time during the fall of 2008 (PE-45; SE-9; testimony of McCarthy, Kramer). Belmont also did not perform Student’s three–year re–evaluation due by January 15, 2009 (testimony of McCarthy, Kramer).
59. For the 2008-2009 school year, Student attended his tenth grade at Landmark (PE-60; testimony of Krom, Feerick).
60. On March 24, 2009, Parent wrote to Ken Kramer requesting that Belmont convene a Team meeting promptly to discuss Student’s placement at Landmark, as well as the IEP rejected by her in July 2008 (PE-55). Parent reiterated her intention to seek reimbursement for tuition and transportation expenses associated with Student’s placement at Landmark, and further requested that Belmont support Student’s “ongoing placement at Landmark High School.” Belmont did not respond to Parent’s request nor did it convene the Team until June 2009 (PE-55; testimony of McCarthy, Kramer).
61. Student’s Team reconvened on June 3, 2009 to conduct his annual review (PE-58). In preparation for the meeting Belmont requested that Student’s teachers and tutor at Landmark complete certain forms addressing his performance at Landmark. Landmark also provided Belmont with an “I.E.P. Summary Worksheet” that listed the skills on which Student was working and those that would be covered in the future. Landmark’s Summary also noted that the Lindamood Phonemic Sequencing program was being used to assist Student “improve his phonemic awareness” (PE-57; PE-58; testimony of Feerick).
62. At the June 2009 Team meeting, Parent renewed her request that Belmont place Student at Landmark. She also requested that Belmont consider using the Lindamood Bell Phoneme Sequencing (LiPS) system in conjunction with Orton–Gillingham. Regarding Student’s three year re–evaluation, Belmont proposed that Student be evaluated by the “Lesley Learning Lab” (PE-58; testimony of McCarthy).
63. On June 5, 2009, Belmont forwarded to Parents the proposed IEP for the period from June 3, 2009 to June 3, 2010, that is, the period covering most of Student’s eleventh grade. Similar to the IEPs proposed for ninth and tenth grades, the eleventh grade proposed IEP offered Student participation in a partial inclusion program at Belmont High School, with consultation between the special education teacher and the regular education staff four times per week for thirty minutes each, and it offered eighteen twenty six minutes each academic support by the Special education teacher in the Resource Room (PE-58; see also, PE-32; PE-45; PE-58). This IEP contained the same language regarding Student’s disabilities and areas of need. The IEP contained goals for reading, writing, and study/organization, but not for mathematics (PE-58). The IEP did not provide a one–to–one reading and writing tutorial nor did it contained services to address Student’s visual–motor integration and fine motor deficits. It also did not offer extended school year services or a Transition Planning form/services. The Additional Information section of the IEP stated that
Parent is requesting that the school investigate the use of Lindamood Bell Phoneme Sequencing (LiPS) in partnership with Orton–Gillingham. Belmont Public Schools will be making a referral for an independent evaluation at the Lesley Learning Lab.6 Furthermore, similar to the 2007-2008 school year, next year [Student] may access the PM Campus Program, as needed (PE-58).
The IEP changed the date for Student’s next scheduled three–year re–evaluation meeting to January 9, 2010, a year later than originally scheduled to take place (PE-58). In the eleventh grade each of Student’s proposed Learning Center sessions had five students and two other students attended twice per week. Each of Student’s college preparatory content area classes would have had approximately twenty–two students who could be sub–divided into smaller groups for certain in–class tasks (testimony of McCarthy).
64. Student’s final report card at Landmark for the 2008-2009 school year, tenth grade, show that he received a A- for Language Arts tutorial, B in Expressive Language Arts, A- in Oral Expression, A- in geometry, A in Biology (MF), B in US History I, and B- in Reading Literature (PE-60). The teachers’ progress reports note increased ability to stay focused, improved organizational skills, improvement in written and oral presentations, improved homework completion, improved behavior in class, and overall improved skills. It was noted that Student did not always bring the necessary materials to class and he worked best in highly–structured situations ( Id .; PE-65). Difficulties were still noted with reading fluency and expression (PE-65). While Student would remain at the standard program level at Landmark, he no longer required Lindamood–Bell instruction in eleventh grade, including the standard program one–to–one tutorial. Landmark would also increase the intensity of services to address Student’s ongoing organizational deficits, something that remained a huge issue for Student (testimony of Krom, Feerick).
65. At Belmont’s request, on July 22 and 27, 2009, Sean Hyde O’Brien, Psy.D., and Karen Conti Lindem, Ph.D., of The Lesley Learning Lab (Lesley) performed a Neuropsychological Evaluation of Student (PE-59; testimony of McCarthy, Glotzbecker, Kramer).
66. Student was sixteen and a half years old at the time of Lesley’s neuropsychological evaluation, conducted in July 2010 (PE-59). The purpose of this evaluation was to clarify diagnostic issues, to develop a profile of Student’s strengths and weaknesses from a neuropsychological standpoint, and to provide appropriate recommendations to maximize Student’s learning. The evaluators reviewed all relevant previous testing/evaluations dating back to 1997, took a thorough history/clinical interview and performed updated testing including: the Wechsler Intelligence Scale for Children–Fourth Edition (WISC–IV); the Boston Naming Test (BNT); Peabody Picture Vocabulary Test–Fourth Edition; Beery –Buktenica test of Visual Motor Integration (VMI); Hooper Visual Organization Test (VOT); Rey Osterrieth Complex Figure Task (RCFT) (Meyers & Meyers Scoring System); Conners’ Continuous Performance Test II (CPT II V .5); Wisconsin Card Sorting Test (WCST); California Verbal Learning Test– Children’s Version (CVLT–C); Children’s Memory Scale (CMS) (selected subtests); Wechsler Individual Achievement Test– 2 nd Edition (WIAT–II); Comprehensive Test of Phonological Processing (CTOPP); Test of Word Reading Efficiency, Form A (TOWRE); Gray Oral Reading Test, Forth Edition, Form B (GORT–4); Behavior Assessment System for Children, Second Edition (BASC–2) Parent and Teacher Rating Scales–Adolescent Ages 12-21; Barkley rating Scales–Parent/Teacher Form; Behavior Rating Inventory of Executive Function–Parent/Teacher Form (BRIEF).7 Student’s scores on the WISC–IV were as follows:
Verbal Comprehension (VCI): 102 55 th %ile Average
Perceptual Reasoning (PRI): 88 21 st %ile Low Average
Working Memory (WMI): 91 27 th %ile Average
Processing Speed (PSI): 78 7 th %ile Borderline
Full Scale (FSIQ): 88 21 st %ile Low Average
Regarding Student’s cognitive abilities, the evaluators stated:
[Student]’s cognitive abilities were assessed in the context of this evaluation, with overall cognitive functioning placing him within the mid to upper end of the low average range. However, this finding should be interpreted with caution, as he displayed moderate variability among the different areas of cognitive functioning assessed, with a pattern of performance that was generally stronger on the verbal versus visual-spatial measures administered. More specifically, his verbal abilities placed him solidly within the average range and constituted an area of relative strength within his overall cognitive profile, while his attention-working memory abilities placed him within the lower end of the average range. In relative contrast, his visual-spatial abilities placed him within the mid to upper end of the low average range, while his information processing abilities placed him within the mid to upper end of the borderline range. The difference between his relatively stronger verbal abilities and the other areas of cognitive functioning assessed was both statistically significant and clinically meaningful. Therefore, it is important to examine his strengths and weaknesses as they impact his learning at home and at school” (PE-59).
67. The Lesley evaluators, Drs. O’Brien and Lindem, noted that the results of the WIAT–II showed that Student’s reading and written language skills fell significantly below age and grade levels, and below his cognitive potential. While Student’s math skills were at or above grade level, his reading skills were three to four years below grade level and his written language skills were six to seven years below grade level (P-59). Specifically, his scores on the WIAT–II were as follows:
SUBTESTS STD PR AE GE
Word Reading 85 16 12:4 7:7
Reading 95 37 13:8 8:6
Comprehension
Pseudoword 98 45 13:8 7:2
Decoding
Numerical 110 75 >19:11 >12:9
Operations
Math Reasoning 106 66 >19:11 12:4
Spelling 74 4 9:8 4:5
Written 69 2 <12:0 3:1
Expression
Listening Comp 115 84 >19:11 >12:9
Oral Expression 99 47 15:0 10:9
COMPOSITES
Reading 90 25
Mathematics 108 70
Written Language 69 2
Oral Language 107 68
Total 91 27 (PE-59).
68. The evaluators at Lesley opined that with appropriate expressive language supports in place, Student’s academic development was promising. However, given his moderate graphomotor difficulties, including weaknesses with fine motor precision and visual–motor integration, Student would be expected to have difficulties taking on more challenging non–verbal tasks in the classroom without proper supports in place. They stated that Student would learn more efficiently with verbal instruction. Difficulties were also seen with Student’s ability to process information efficiently which together with attention and executive functioning deficits would have strong negative implications for higher–level academic functioning. He also demonstrated difficulties with integrating information and when he was required to process information simultaneously using multiple cognitive abilities. Attention and self–monitoring difficulties combined with reading deficits would make it increasingly difficult for Student to integrate and simultaneously apply skills in real life reading situations. They labeled Student’s reading disorder as “partially remediated” (PE-59).8
69. Strategies were recommended for Student to be able to stay more focused during basic non–verbal learning activities, as well as to improve his reading fluency and support comprehension (PE-59). Dr. O’Brien and Dr. Lindem stated that it was critical for Student to receive “explicit instruction, review and repetition” to respond to interventions (PE-59).
70. They diagnosed Student with Attention Deficit Hyperactivity Disorder: Combined Type (DSM–IV TR 314.01), with notable executive dysfunction and Developmental Coordination Disorder (DSM–IV TR 315.4), Reading Disorder (DSM–IV TR 315.0) partially remediated, Disorder of Written Language (DSM–IV TR 315.2), and Development Dyslexia (a neuropsychological as opposed to a DSM–IV diagnostic category). The evaluators opined that in terms of a differential diagnosis Student did not meet the diagnostic criteria for a nonverbal learning disorder. In sum, they viewed Student as an individual whose numerous neuropsychological issues had significantly impacted his academic and psychosocial development9 (PE-59).
71. Dr. O’Brien and Dr. Lindem concluded that
[Student] is a young man whose academic and psychosocial development has been significantly impacted by a number of neuropsychological factors. These include (1) difficulties with attention/executive functioning (characterized by vulnerable cognitive and behavioral regulation), (2) difficulties with sensory-motor functioning (characterized by vulnerable fine and gross motor precision, visual-motor integration, and general sensory processing), and, most saliently, (3) difficulties with language-based academic skills development (characterized by vulnerable basic reading and written language skills) (PE-59).
72. Dr. O’Brien and Dr. Lindem made approximately fifty–one (51) recommendations regarding the type of program, accommodations, and educational services required by Student among which were the need for
1) … a classroom that is well organized and structured with a routine that is generally predictable on a day to day basis. Opportunities for one-to-one teaching and small group experiences may help him better manage his behavior and, thus, maximize his learning…
2) …school-based occupational therapy focusing on improving his sensory processing abilities.
3) …ongoing, specialized instruction with a reading instructor/ literacy specialist. [Student] should receive direct instruction utilizing a multi–sensory, highly systematic program.
4) …will require ongoing support in developing his spelling skills. He will benefit from a systemic and intensive reading program that also reinforces encoding and spelling.
5) …would benefit from support and direct instruction relative to his math skills.
6) …would benefit from regular weekly meetings with a school psychologist or guidance counselor (PE-59).
The evaluators also made a series of follow–up recommendations ( Id ). Ms. Glotzbecker, school psychologist in Belmont, presented the Lesley recommendations and findings at the Team meeting convened to discuss this evaluation in December 2009 (SE-42; testimony of Glotzbecker). She relied on her telephonic discussion with Dr. Obrien the notes for which are found in SE-55 ( Id. ).
73. On October 10, 2009, Mother rejected the IEP, and informed Belmont of her intention to continue Student’s placement at Landmark for the 2009-2010 school year, Student’s eleventh grade. Mother further informed Belmont of her intention to seek public funding for Student’s placement at Landmark (PE-61).
74. Having rejected the proposed partial inclusion program with academic support at Belmont High School, Student attended Landmark for the 2009-2010 school year, his eleventh grade (PE-61; PE-65; P-67; testimony of Krom, Feerick).
75. Lesley’s Neuropsychological Evaluation report was received by Belmont on November 2, 2009. Belmont then convened Student’s Team on December 2, 2009 to review the report. Neither Dr. O’Brien nor Dr. Lindem was present. At the meeting, Ms. McCarthy used a copy of Student’s then–current IEP as a draft IEP and made notes on the document reflecting a summary of the Team’s discussions. Stephen Krom, Landmark’s Public School Liaison and Registrar, and John Feerick, Student’s case manager at Landmark (PE-70), attended the meeting. Mr. Krom and Mr. Feerick described Student’s program at Landmark, including his tutorial. Mother once again reiterated her request that Belmont place and fund Student’s program at Landmark, but Belmont declined (PE-59; PE-63; SE-4; SE-7; testimony of McCarthy, Krom, Feerick, Kramer).
76. On December 8, 2009 Belmont forwarded to Parents a Notice of Proposed School District Action and a proposed IEP for the period from December 2, 2009 to December 2, 2010, that is, the remainder of Student’s eleventh grade and the first half of Student’s twelfth grade (PE-32; PE-45; PE-63).
77. The new IEP once again offered Student participation in a partial inclusion program with all regular education classes, the same consultation between the special education teacher and the regular education staff, and academic support services in the Learning Center as in the IEPs proposed by Belmont for the ninth, tenth and eleventh grades (PE-63). The service delivery grid in this IEP is exactly the same as in the previous one. In the “Areas of Need,” section of the IEP, the number of items related to Student’s reading and language skills deficits are reduced to one line, specifically: Phonological awareness, decoding, sight word recognition and rapid naming.” Goals for reading, writing, and study/organization skills, are present but there is no goal for Math (PE-63). Similarly there is no provision of a one–to–one tutorial or any specialized reading and writing services. It also does not contain services to address Student’s visual–motor integration and fine motor deficits. This IEP does not contain a transition planning form (PE-63). The Additional Information section provided:
“ In consideration of his disability, [Student] will receive a foreign language waiver, thus eliminating Belmont’s 2-year foreign language requirement for him. Similar to the 2007-2008 school year, [Student] may access the PM Campus Program, as needed” (PE-63).
On February 9, 2010, Mother rejected the proposed IEP program and placement at Belmont High School (PE-63).
78. Belmont’s proposed schedule for Student’s eleventh grade at Belmont High School dated December 4, 2009 shows that Student would have been placed in regular education classes with the following number of students in each class: American Studies with twenty (20) students, English 11 with twenty three (23) students, Chemistry with sixteen (16) students, and Algebra 2 with twelve (12) students. He would have also participated in two Learning Centers for academic support with Ms. McCarthy, one with eight (8) students, and the other with five (5) students (PE-64; testimony of McCarthy).
79. At Parents’ request, Marilyn Engelman, Ph.D., conducted an evaluation of Student in March 2010. Dr. Engelman’s reviewed Student’s record, performed educational testing, and conducted an observation of Student in his program at Landmark (PE-65; testimony of Engelman). She testified that she supplemented some of the testing previously done, explaining that she was looking to ascertain whether Student’s cognitive ability scores remained the same ( Id. ).10
80. Dr. Engelman concurred with the previous diagnoses of a Reading Disorder, Developmental Dyslexia, and a Written Language Disorder. According to her, academic testing showed that Student’s reading and written language skills continued to be several years below age and grade levels, and not commensurate with his potential, although he was making progress at Landmark (PE-65; testimony of Engelman). She concurred with the recommendations of the Lesley evaluators, Dr. O’Brien and Dr. Lindem, and further recommended that Student be placed in small special education classes and that he be provided with a daily one–to–one tutorial. Her recommendations included:
1) Student needs to be placed in an educational environment where there is much integration. Language based teaching strategies need to permeate all academic subjects and need to be consistent throughout the day.
2) Due to Student’s developmental dyslexia, language–based learning disabilities, and attentional vulnerabilities, he should be placed in college preparatory classes where the student–teacher ratio is small (no more than 8 to 10 students to one teacher). In addition, the teacher should not only be certified in the subject area but be certified in working with students with language-based learning disabilities.
3) In addition to his regular classes, [Student] needs one–on–one tutorials on a daily basis to improve fluency, reading, and written language.
4) [Student] also needs one on–one tutorials at the beginning and end of each day to help him with his overall organization and homework planning. At the beginning of each day, he needs check–ins to make sure he has all the needed work and the end of the day, he needs to make sure he has all of his needed homework (PE-65).
81. Dr. Engelman reviewed the IEPs proposed by Belmont in December 2009 and in June 2010 and concluded that neither IEP met her recommendations or those of the Lesley evaluators and therefore, neither was appropriate for Student (PE-65; testimony of Engelman). Regarding the progress reported in Ms. Paykuss’ Orton–Gilingham tutorial, Dr. Engleman testified that moving from level two to level three did not reflect progress commensurate with Student’s potential (testimony of Engelman).
82. In March 2010, Dr. Engelman observed Student in his one–to–one tutorial, his English/Language Arts and his math class at Landmark. She opined that Landmark was an appropriate placement for Student (PE-65; testimony of Engelman).
83. Parents forwarded a copy of Dr. Engelman’s report to Belmont and on June 23, 2010, Belmont convened the Team Meeting to discuss the result of her evaluation/observation. Present at the Team meeting were: Mr. Kramer, Ms. McCarthy, Ms. Glotzbecker, Parent, Mr. Krom and the attorneys for both Parties. As in previous IEP meetings, Ms. McCarthy took notes reflecting her Team summary on a copy of Belmont’s previously proposed IEP which she also used as a draft IEP (SE-1; testimony of McCarthy). Mr. Krom described Student’s program at Landmark, including the one–to–one Language Arts Tutorial. A copy of the draft IEP reflecting the summary was not forwarded to Parents until the hearing (PE-66; SE-1; testimony of Kramer, Krom, McCarthy, Glotzbecker).
84. On June 24, 2010, Belmont sent to Parents a Notice of Proposed School District Action and a proposed IEP for the period from June 23, 2010 to June 23, 2011, Student’s twelfth grade. As with previous IEPs, this one offered Student participation in a partial inclusion program with all regular education services, consultation four times per five day cycle for thirty minutes each between the special education and the regular education teachers, and eighteen times twenty six minutes each sessions per five day cycle of academic support by the special education teacher in the Learning Center. This IEP does not offer specialized reading or writing services, or services to address Student’s visual–motor integration and fine motor deficits (SE-1; PE-32; PE-45; PE-63; PE-66). Similarly, it also lacks a Transition Planning form (PE-66). The language regarding Student’s identified disabilities is the same as all previous IEPs proposed for high school, and the description of Student’s “Areas of Need” and goals in this IEP are the same as the IEP covering the period from December 2, 2009 to December 2, 2010 (PE-32; PE-45; PE-63; PE-66). The Additional Information section provides:
In consideration of [Student]’s disability, [Student] will receive a foreign language waiver, thus eliminating Belmont’s 2–year foreign language requirement for him. Similar to the 2007-2008 school year, [Student] may access the PM Campus Program, as needed.
Double Learning Center time will be used for the provision of direct 1–to–1 instruction in organizational strategies and targeted instruction with regards to IEP Goals as well as start and end of day monitoring of assignment tracking and completion (PE-66).
85. Via letter dated July 6, 2010, Parent fully rejected the IEP and requested information regarding extended–year services. Parent conveyed her intention to continue Student’s placement at Landmark and requested that Belmont fund this placement with all other related expenses including transportation going back to 2008. Parent also reiterated her attorney’s previous request for copies of Belmont’s observation reports, the Team meeting attendance sheet, and reports reviewed at the Team meeting. Belmont forwarded the rejected IEP to the BSEA on July 7, 2010 (PE-66; SE-1).
86. Landmark is a Massachusetts Department of Elementary and Secondary Education (“DESE”) approved private special education school eligible to receive publicly–funded students (testimony of Krom, Feerick). Landmark addresses the needs of children with average or above–average cognitive ability, who present with language–based learning disabilities. Some of its students also present with Attention Deficit Hyperactivity disorder, and or executive functioning and organizational issues. Students with behavioral issues are not admitted. Landmark follows the Massachusetts Curriculum Frameworks through its day and/or residential program. Student has attended the day program at Landmark for tenth, eleventh and now twelfth grades (testimony of Krom, Feerick).
87. Mr. Feerick holds a Master’s degree in special education from Simmons College, and he is licensed by DESE as a special education teacher. Prior to initiating work at Landmark, Mr. Feerick worked as a special education teacher in both public and private schools (PE-70; testimony of Feerick). Mr. Feerick is Student’s case manager and is also responsible to supervise Student’s Language Arts tutor in tenth and eleventh grade. He observed Student during his tutorial and also provided him one–to–one services. He had reviewed Student’s records and had consulted with his Landmark teachers. Mr. Feerick explained that with assistance of the Lindamood–Bell services and the one–to–one tutorial, Student had progressed out of the early literacy remediation tutorial by the end of tenth grade, and moved into the standard Landmark tutorial for eleventh grade. The standard tutorial still addressed phonemic awareness issues and targeted other areas such as reading and writing remediation and organizational skills (testimony of Feerick).
88. At Landmark, every student in the Expressive Language Program is provided a one–to–one Language Arts Tutorial every day of every school year (testimony of Krom, Feerick).
89. Mr Krom holds a Master’s degree in education and is licensed by DESE as a social studies and French teacher and as an Administrator of Special Education. At Landmark, he has had experience as a language arts tutor and as an administrator. At present, he is Landmark’s Public Schools Liaison and Registrar (PE-70; testimony of Krom).
90. In tenth grade, Student’s program included four classes directed towards language development, including two classes in the Expressive Language Program, rather than the typical three language related classes. Student’s schedule that year included: Geometry; U.S. History I; Biology; a one–to–one language arts tutorial; an oral expression class; an expressive language arts class; and, a reading literature class. That year Student did not take an elective so as to accommodate the extra language class, deemed necessary “so that he could make the most gains” (PE-60; testimony of Feerick). In tenth grade, Student’s language arts tutorial was “an early literacy tutorial” utilizing the Lindamood Phoneme Sequencing (“LiPS”) program, focusing on five language related areas including: oral reading, visual memory, spelling, comprehension, and written composition (PE-60; testimony of Feerick). The focus of the reading literature class was to increase Student’s accuracy in oral reading and comprehension skills (PE-60). His expressive language class focused on the development of written language skills including vocabulary, organizational skills, semantics, syntax, paragraph writing, mechanics, proofreading and study skills. “Special effort [was] made to parallel the work done in this class with the oral language work conducted in oral expression and communication classes” (PE-60). The oral expression class focused on the development of language skills, to enhance both spoken and written communication focusing on the following skills: phonology, morphology, semantics, syntax, discourse and pragmatics, and memory and retrieval (PE-60). “A special effort [was] made to parallel the oral language work in the oral expression classes with the written language work in the expressive language arts classes” (PE-60). The academic classes incorporated into the content areas the development of oral and written language skills, comprehension skills, study skills, organizational skills, and self–advocacy skills. The academic classes also evaluated classroom behavior and effort (including organizational skills, homework completion, and study skills) (PE-60).
91. For eleventh grade Student’s program included Algebra II, Chemistry, and U.S. History II in addition to three language related classes: the one–to–one language arts tutorial, an expressive language arts class, and a reading literature class (PE-67; testimony of Feerick). Student received instruction in phonemic awareness, although the LiPS program was not used. The language arts tutorial that year focused on the following skills: decoding, spelling, comprehension, written composition, study, oral composition, and classroom behavior and effort (PE-67; testimony of Feerick).
92. Mr. Feerick testified that at the beginning of the school year he and the tutor develop a “diagnostic” that outlines the goals, specific skills and overall curriculum to be worked on that school year to address Student’s individual needs. In eleventh grade Student met his tutor, Kathleen McManus, on the first period of the day. The tutorial focused on areas related to Student’s language–based issues (including decoding, fluency and reading comprehension), executive functioning, organizational skills, and study skills deficits. These issues were also targeted throughout the day in his academic classes (PE-67; testimony of Feerick). As the year went by, these areas were reviewed and modified to address Student’s emerging difficulties. At Mr. Feerick’s request, Ms. McManus provided check–ins to address Student’s increased difficulties with organization and study skills, and Student frequently attended after–school homework make–up sessions. Additionally, Mr. Feerick met with Student after school several times per week to assist him with organizational issues and to provide him with encouragement and support. Mr. Feerick also communicated with Parent on a regular basis (SE-67; testimony of Feerick). The rest of Student’s academic and language–related classes focused on the same areas as in tenth grade ( Id. ).
93. Landmark progress reports reflect that Student accepts constructive criticism but struggles to implement the suggestions, continues to display issues with organization and self–monitoring, and struggles with homework completion in some courses. He requires continued work on self–advocacy skills and on developing active study techniques. His performance improves with provision of clear expectations and highly structured assignments. In the eleventh grade he participated in a Reading Literature class that focused on improving his oral reading and comprehension skills. In this class, he was described as a positive, productive participant who responded well to teacher cueing. Progress was noted especially in reading literature, expressive language, Algebra and US History II, but less so in Chemistry (PE-67). All of Student’s grades at Landmark for the tenth and eleventh grades were As and Bs, and he remains active in the community (PE-72; PE-73). Landmark offers a prep–school level program for students who present fewer academic needs and thus the class sizes are larger (approximately eight to ten students), and these students do not require the one–to–one tutorials; it offers a standard program level in which all students participate in a one–to–one tutorial, and the remedial expressive arts, Lindamood–Bell literacy program. At present, Student participates in the standard program and receives the one–to–one tutorial daily and also receives a “check–in” at the end of the day to address organizational deficits. Additionally, Ms. McManus checks with Student throughout the day to address organizational issues (testimony of Krom). According to Mr. Krom, Student requires a consistent predictable environment that addresses his language (reading and writing), comprehension and organizational skills ( Id. ).
94. In twelfth grade, Student’s program includes a one–to–one language arts tutorial, expressive language arts, advanced algebra, environmental science, anthropology, study skills and one elective. As in previous years, his tutorial, academic and language classes meet daily and continue to work on the development of his areas of weakness (PE-69). Each class will have between five and six students, and will follow the five core principles. The study–skills class was specifically chosen for Student to assist him with study skills and organizational skills, including: highlighting, summarizing, study skills, development of research skills and planning long–term assignments (PE-69; testimony of Feerick). Landmark staff is committed to respond to Student’s emerging difficulties with appropriate interventions. Student is expected to graduate from Landmark in 2011 (testimony of Feerick).
95. Starting in the eleventh grade, Landmark initiated transition planning services which will continue into twelfth grade and takes into account Student’s vision of continuing onto college. He was given the Harrington–O’Shea Career Interest Inventory to identify areas of interest to him and has been assigned to a specific guidance counselor who works with him on “college planning, career interest surveys, resume development, interview skills, etc.” (PE-73; PE-74; testimony of Feerick). Student has prepared a resume and will be taught how to update it to incorporate new experiences. Additionally, in eleventh grade, he was required to draft a college application essay. Ms. McManus worked on Student’s personal statement in his language arts tutorial using Landmark’s “five-step writing process, brainstorming, outlining, drafting, editing, redrafting” (PE-73; PE-74; testimony of Feerick).
96. If Belmont is found responsible to fund Student’s placement at Landmark, Student will be required to pass the MCAS tests in order to receive his high school diploma. If so, Landmark will provide him with individual and small group MCAS support some of which will be delivered within the language arts tutorial. Mr. Feerick testified that Student will specifically receive services to address the writing portion (long composition) for which Landmark provides “a process–driven writing approach.” Student’s reading comprehension skills and other skills related to his performance will also be addressed (testimony of Feerick).
97. Mr. Kramer, opined that Student did not require a one–to–one tutorial or specialized reading services, because all of the accommodations and services he may need can be delivered through regular education, and because Ms. McCarthy can provide “a one–to–one environment” in the context of the Learning Center. He opined that Student might “benefit from” a reading tutorial, but did not agree that he needs this service (testimony of Kramer). In his opinion, the needs of high school aged students with language–based learning disabilities can be addressed at Belmont High School through a regular education model, with accommodations, and for those with more significant deficits, additional services can be provided in the Learning Center. Belmont High School does not have any co–taught special education classes, and or a Substantially Separate Classroom, for language–based learning disabled students. Also, Belmont rarely provides out–of–district placements for students with language–based learning disabilities. Belmont provides out–of–district placements to students with cognitive impairments or clinically significant emotional issues (testimony of Kramer).
98. Student’s college essay draft, dated June 2010, narrates his struggles with a language–based learning disability and discusses the services received by him since kindergarten in Belmont. Student describes Belmont’s Learning Center experience as a place where he received assistance with homework but where his reading and spelling difficulties were not addressed. He viewed this experience as “punishment” (PE-74). By seventh grade he felt that he had fallen far behind his classmates, and was especially struggling with reading, writing and organizational skills and described ninth grade as a “train wreck… and academic and organizational mess” causing him to lose his motivation and avoid school and school–work (PE-74). According to Student, the teachers at Belmont did not know how to deal with him or provide him with teaching strategies or interventions that worked for him. Student’s candid recount goes on to describe his fury at learning that he would leave Belmont for Landmark in tenth grade after a summer at Landmark. He wished to do well and leave Landmark, and was resistant to making connections with class–mates. This however, was difficult as the “teachers cared too much and students were friendly and [they] were all there for the same reason” which motivated Student to do well. He found the forty–five minute commute difficult but in the end worth it (PE-74). Student stated
When I started the Lips Reading Program I thought I was as smart as a 5 year old. When they put letters with pictures in front of me and said to sound it out I felt insulted. Eventually I got over my stubbornness and embarrassment and improved my reading. Who would have thought such a strange method would actually work!… Over this time I have learned a lot about my learning style and what strategies work best for me… Do I love landmark, not at all, but it has helped me a lot and I’m thankful for that… I choose to make the most of the situation and prepare myself for college and a bright future. My goal for my senior year is to be motivated, organized, and enthusiastic about my studies (PE-74).
Ms. Glotzbecker however, raised concern that Student’s voice had not been heard throughout the proceeding (testimony of Glotzbecker). Ms. Paykuss had described him as a quiet, nice, caring, sweet young man, almost too shy to even ask to borrow a pencil, and as having great difficulty advocating for himself. He however, was extremely motivated to learn how to read (testimony of Paykuss).
99. Ms. McCarthy had an opportunity to observe Student at Landmark and speak with Mr. Feerick on June 1, 2010. She however, was not supportive of this placement for Student and instead recommended full inclusion with accommodations and Learning Center support at Belmont High School (SE-2; testimony of McCarthy). Ms. Glotzbecker also observed Student in his Math classe at Landmark on May 27, 2010 (SE-3). She noted that outside of some distractible or fidgety behaviors, he was able to keep up with the pace of the instruction and seemed to have a firm grasp of the material performing better than his classmates (SE-3).
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 Act11 (IDEA) and the state special education statute.12 As such, Student is entitled to a free, appropriate public education (FAPE).13 The dispute between the Parties is centered on the appropriateness of the IEP and services offered by Belmont for Student’s tenth, eleventh and twelfth grades and whether Parents were justified in placing him at Landmark for the 2008-2009, 2009-2010, 2010-2011 school years to enable him to receive a FAPE. If so, Belmont 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 June 23, 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 needs14 in a way reasonably calculated to enable the student to make meaningful15 and effective16 educational progress. Additionally, said program and services must be delivered in the least restrictive environment appropriate to meet the student’s needs.17 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 .18 Educational progress is then measured in relation to the potential of the particular student.19 School districts are responsible to offer students programs and services that will allow them to make meaningful, effective progress.20
As the party challenging the adequacy of Student’s IEPs for tenth, eleventh and twelfth grades, while seeking public funding for their unilateral placement, Parents carry the burden of persuasion pursuant to Schaffer v . Weast , 126 S.Ct. 528 (2005)21 , 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 .
The evidence in the instant case is persuasive that Belmont did not provide a program and services that addressed Student’s disabilities effectively, and as such Parents were justified in unilaterally placing Student at Landmark. In this regard, 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 2008-2009, 2009-2010 and the first part of the 2010-2011 school year. Regarding the 2010-2011school year (Student’s twelfth grade), Student is entitled to an IEP from Belmont placing Student at Landmark for the remainder of his twelfth grade. My reasoning follows:
To ascertain whether the IEP promulgated by Belmont for the 2008-2009 school year was reasonably calculated to provide Student a FAPE in the least restrictive setting, and if not, whether Parents are entitled to reimbursement for their unilateral placement of Student at Landmark for that school year, I must consider the information available to the Team at the time the IEP was promulgated.
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 him 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). Under this standard, Belmont was not required to offer Student the best possible program. Rather, Belmont was mandated to provide Student a program tailored to meet his unique needs so as to enable Student to make effective educational progress. In tailoring an appropriate program, Belmont was required to assess what it had available and if necessary design a program appropriate for Student. Belmont could not simply fit Student into whatever program it had available if it was insufficient to offer him a FAPE. As such, Belmont’s Team was responsible to consider the information available to the Team when planning Student’s program and placement for tenth, eleventh and twelfth grades.
The Parties agree that Student possesses solidly average cognitive ability. This finding is supported by the numerous evaluations conducted over the past several years at Belmont and by private sources (PE-11; PE-12; PE-14; PE-17; PE-33; PE-38; PE-40; PE-43; PE-59; PE-65). He has been diagnosed with a Language–Based Learning Disability, Dyslexia, Attention Deficit Hyperactivity Disorder (“ADHD”), Reading Disorder, Disorder of Written Expression, Learning Disabilities NOS, and Developmental Coordination Disorder. His disabilities manifest in significant and severe difficulties with all aspects of language and with executive functioning. While an individual with solidly average cognitive skills, Student’s academic skills have remained below age and grade levels, and below his potential (PE- 11; PE-12; PE-14; PE-24; PE-38; PE-56; PE-65). In Belmont, he has had difficulty accessing the general curriculum and making educational progress commensurate with his potential (PE-11; PE-12; PE-14; PE-17; PE-34; PE-38; PE-56; PE-65; testimony of Brochin, Engelman).
There is disagreement however, as to the manner in which the Parties view Student’s needs and the appropriate way to serve him. Belmont sees Student’s issues as primarily organizational and attentional in nature, and opine that Student does not require specialized language–based instruction to access the curriculum and make effective progress. Additionally, Belmont asserts that it need not include specialized services in Student’s IEP because it can offer accommodations and specialized services as part of its regular education programming. One such example was the one–to–one, Orton–Gillingham reading and writing tutorial (McCarthy, Glotzbecker, Kramer).
In the ninth grade, Belmont offered Student participation in a partial inclusion program with regular education classes taught by regular education teachers, for all academic subjects. His IEP called for accommodations and modifications to be implemented in regular education settings, without special education support in those settings. Aside from Algebra I, which Ms. McCarthy attended twice per week, no special education support was provided in any of his other regular education classes. The service delivery grid contains one times thirty minutes per week consultation by the special education teacher, and calls for resource room assistance eighteen times twenty six minutes per week each by the special education teacher. The Additional Information Section states that Student’s academic and cognitive performance will be reassessed in the summer of 2007, and that additional reading assessments will also be conducted by the reading specialist to ascertain if additional summer reading support would be warranted during the 2007 summer (PE-32). The IEP did not provide for any other one–to–one or small group instruction in either the Methodology or Accommodations sections of the IEP (PE-32; testimony of McCarthy, Virgilio).
There were different groups of students in the two Learning Centers in which Student participated, with approximately five (5) to eight (8) students in each, with varying disabilities. The Learning Centers were not specifically designated for students with language–based learning disabilities. The Learning Center time with Ms. McCarthy offered Student support with his organizational skills, including in–school class work and homework. It also offered Student support with all areas covered by his IEP, including reading and writing (PE-32; testimony of McCarthy, Brochin).
In October 2007, Ms. Paykuss initiated provision of three hours per week of Orton–Gillingham instruction to address his reading, writing and spelling issues. Two more hours were added in January 2008, for a total of five hours per week, although Student’s IEP was never amended to reflect these services (PE-32; testimony of McCarthy, Paykuss). Her reports show that even with the increase in services, by the end of the ninth grade this hard working student, as she described him, was working on Level 2 and parts of Level 3 of the Orton–Gillingham program (PE-44; PE-54). Throughout the period of time that she worked with Student, she continuously recommended one–to–one reading and writing services ( Id. ; testimony of Paykuss).
In the ninth grade, Amanda Rei, guidance teacher, met with Student approximately six to ten times during the school year (testimony of Rei). Lastly, Ms. McCarthy testified that the Campus PM Program was available after school to provide homework support. According to Ms. McCarthy, the Campus PM Program was not appropriate for Student because it was designed for students with behavioral and emotional issues. Student was unable to access the PM program because it conflicted with his tutoring with Ms. Paykuss and participation in after–school sports (testimony of McCarthy).
The evidence shows that throughout ninth grade, Student had serious difficulty with organization, and completing and turning in homework. His grades in all of his academic subjects ranged from Cs to Fs, and his reading and writing difficulties were significant enough to warrant individualized instruction by Ms. Paykuss starting in October 2007 (PE-48; testimony of Paykuss). Communications between Ms. McCarthy and the regular education teachers describe Student’s numerous difficulties in the regular education classrooms despite the accommodations, and the support services provided by Ms. McCarthy and Ms. Paykuss (PE-56). Teacher reports consistently note Student’s significant difficulties with organizational skills, attention, staying on task, homework completion, and writing difficulties severe enough that Student refused to take notes or complete written assignments in class (PE-71). Tina Jones, his physics teacher noted that
… it clearly was difficult for him to learn material in a classroom situation, with many students present, but worked better when a teacher could keep him focused in a small group setting… one of the biggest obstacles to [Student]’s success in school was that his handwriting was unreadable, and he seemed unable to form sentences or write a couple of sentence in order to explain something… his writing seemed to me to be at a elementary school level (I actually don’t know how to categorize it, because most third or fourth graders seem to be able to write better tha [n Student]). I haven’t had a student in 10 years of 9 th grade whose writing was as poor as [Student]’s, and I don’t just mean his handwriting. If I called on him to explain something in class, and he was paying attention enough to answer, he could frequently answer correctly but used as few words as possible. He didn’t enjoy having any attention focused on him by me, or being called on to answer in front of the class… (PE-71).
Ms. McCarthy was aware of Student’s difficulties in his regular education classes (SE-13; PE-56; testimony of McCarthy). Student received a Needs Improvement in the ninth grade science and technology/engineering MCAS, sufficient to allow him to graduate from high school (PE-46). No additional evaluations or assessments were performed by Belmont while Student was in ninth grade. As such, there is little evidence to support Belmont’s assertions that Student made effective progress during that year. His two main areas of difficulty, executive functioning and language–based learning disabilities remained significant problems by the end of the year as reflected by his progress reports (PE-47; PE-49; PE-50).
Landmark’s admissions testing performed on June 19, 2008, at the end of the ninth grade, corroborates Student’s serious difficulties and lack of progress commensurate with his cognitive abilities. On the Gray Oral Reading Test–4, Student’s scores were as follows: Rate–5 th %ile (4.7 grade equivalence), Accuracy–2 nd %ile (4.0 grade equivalence), and Fluency <1 st %ile (4.0 grade equivalence).22 Dr. Brochin’s Gray Oral test results obtained in July 2007 (prior to the beginning of the 9 th grade) were quite similar. On the Woodcock Reading Mastery Test, Student’s Word Identification score was at the 14 th %ile and his Word Attack score was at the 15 th %ile and his scores on the WIAT-II in similar areas were likewise almost the same (PE-68; PE-38). Part of Dr. Brochin’s programming recommendations for Student’s ninth grade included that Student be
… placed in a fully-integrated program in which all of his teachers have expertise and training in the instruction of students with language–based learning disabilities and dyslexia. [Student] requires placement in a program that allows him to be educated in a small group setting (e.g., 6–8 students maximum) throughout the entire school day. He requires a daily, 1:1 tutorial to provide intensive intervention in decoding, reading text for fluency, and comprehension. His phonemic instruction should be one of the research–based, highly structured, multi–sensory program in which there are constant assessment of skills acquired. His entire program should be highly structured, with continuous review of all skills, even after having moved onto more challenging concepts… Given his inability to keep up with the demands for reading and written work, placement in the general education setting at this time for any classes is contraindicated… (PE-37).
Similarly, Dr. Brochin opined that
… a model that relied on an aide in the general education setting was contraindicated. It was recommended that he be provided interventions with a writing program coordinated with his reading program. Given executive function/attention–related weaknesses, it was recommended that study skills and the management and organization of school work be integrated into the curriculum in all of his classes. Support and modification were reported to be necessary in Math… it was critical that [Student] be placed with students who had a similar profile of disabilities so that he does not feel defective, stigmatized, or embarrassed by his disability (PE-42; testimony of Brochin).
Additionally, Dr. Bochin recommended a pharmacological evaluation to ascertain if a medication regime to improve sustained attention was warranted, and also that Student be seen by a mental health professional to address the stressors in Student’s life and help him cope with the frustration resulting from his learning disabilities (PE-38; PE-42; testimony of Brochin). Given Student’s executive functioning issues, the larger number of students in the regular education classrooms in Belmont made it difficult for him to stay focused and organized.
The evidence is persuasive that Belmont’s ninth grade program for Student did not meet Dr. Brochin’s recommendations (PE-38; PE-42; testimony of Brochin, McCarthy). The only special education teacher providing services to Student was Ms. McCarthy. Had Student attended Belmont High School for the tenth, eleventh and twelfth grades, she also would have been his only special education teacher.
Not having completed her Master’s degree in special education, Ms. McCarthy holds a DESE preliminary license in special education, moderate disabilities, five to twelve (SE-42). She does not hold any degrees in education or special education. Prior to August 2007 she worked as a homework tutor or as a paraprofessional. Student’s ninth grade year was the first time that Ms. McCarthy held a position as a teacher. Ms. McCarthy has not been trained in any specialized teaching methodologies for reading and written language such as Orton-Gillingham or LiPS. She mostly works with students on their regular education home work and school work, she helps them with organization, and she serves as a liaison with the regular education teachers. She did not provide services to remediate Student’s language–based learning disabilities and does not follow a specific curriculum. Additionally, since there were five to eight students with varying needs and degrees of disability in the Learning Center at the times Student accessed the Learning Center, it would have been extremely difficult for her to provide him the one–to–one services he required and that Dr. Brochin recommended (testimony of McCarthy).
Belmont argued that the information available to the Team in 2008 and 2009 and 2010, supported continuation of the partial inclusion program at Belmont High School, however, this position is not supported by the evidence.
Available to Belmont’s ninth grade January 18, 2008, March 14, 2008 and June 13, 2008, Teams were: Dr. Brochin’s evaluation and observation of Student’s program in Belmont (concluding that it was inappropriate), Ms. Paykuss’ recommendations for additional and continued Orton–Gillingham instruction, Belmont’s own evaluations of 2007 (including Dr. Wiznitzer’s evaluation of June 13, 2007 showing that Student possessed overall average cognitive abilities), Landmark testing of August 2007, Toby Vogel’s recommendations that Student continue to receive specialized reading instruction in high school, Dr. Florence Lai’s letter to Mr. Kramer of January 2008 recommending out–of–district, language–based programming, Belmont’s teachers input as to Student’s significant difficulties in regular education (including his attentional, organizational, reading and writing deficits), and Parents’ input (PE-33; PE-34; PE-38; PE-40; PE-42; PE-43; PE-44; PE-45; PE-48; PE-56; SE-46; testimony of Brochin, Paykuss, Kramer, McCarthy). Much of the aforementioned information had been available since eighth grade, and at the Team meeting convened in September 11, 2007.
Ms. Paykuss, Belmont’s reading/writing instructor working with Student on Orton–Gillingham, consistently recommended that Student receive assistance in reading to improve fluency, accuracy and comprehension. Similarly, this reading specialist contracted by Belmont recommended that assistance be provided in writing. Her reading/writing services were initiated in October 2008 and increased by January due to Student’s significant deficits in both, although Belmont never amended Student’s IEP to include any of this pull–out service required to address his special education needs in areas already identified by Belmont.
Belmont argued that the high school offered extensive supports through regular and special education, that afforded Student access to the regular education curriculum despite his weaknesses in reading, writing, organizational skills, and visual–spatial deficits (testimony of McCarthy, Kramer). Belmont however, ignored Student’s educational and academic struggles as well as the numerous recommendations for Student to receive small–group, language–based instruction. Instead, Belmont opted for a pure regular education model with minimal support services in the Learning Center. Student required direct specialized instruction and remediation. By its own admission, Belmont did not have an appropriate language–based program with similar peers to offer Student in high school. Belmont did not tailor a program to address Student’s needs but simply fit him into what it already had even as Student fell further behind same–age, typically developing peers. Belmont’s Team disregarded the wealth of information available to it, regarding the needs of the Student and the type of program and services he required, offering instead an inappropriate “band–aid” approach. The sum of the evidence is persuasive that Belmont failed to provide Student a FAPE in the ninth grade as a result of which Student did not make effective progress commensurate with his abilities.
The IEP covering the period from June 13, 2008 to June 13, 2009, (end of ninth grade and most of tenth grade) offered Student participation in a full inclusion, regular education program with consultation and eighteen, twenty–six minutes each, Learning Center support, much like the previous IEP (PE-45).
The Additional Information section of this IEP reflects the Team’s agreement to place Student at Landmark’s summer program and further states that the Team will reconvene in the Fall 2008 (tenth grade) to discuss Student’s performance during the summer program (PE-45). Additionally (although not reflected in the IEP), Belmont agreed to continue Student’s one–to–one, Orton–Gillingham tutorial with Ms. Paykuss.
Belmont did not reconvene Student’s Team following the summer of 2008 or at any other time in the Fall of 2008 despite the Team’s previous commitment to do so and Parents’ request to meet (PE-45; PE-50; PE-51; testimony of Kramer, McCarthy). By then, Belmont had Student’s final report card for ninth grade, Landmark’s summer school report and by October 23, 2008, Ms. Paykuss’ report of her summer tutoring and recommendation for continued work on Orton–Gillingham (PE-48; PE-49).
On July 26, 2008, Parent rejected Student’s proposed IEP program and placement, and notified Belmont of her intention to place Student at Landmark for tenth grade (PE-45). Parent requested funding for all expenses associated with Student’s placement at Landmark but Belmont refused informing Parent that Student’s needs could be appropriately met in Belmont (PE-50; testimony of Kramer).
The proposed tenth grade IEP also called for Student’s three year re–evaluation to occur by mid–January 2009 (PE-45). Student’s three year re–evaluation did not take place. In March 2009, Parent again requested that the Team meet to discuss Student’s placement at Landmark but the Team was not convened until June 3, 2009, the end of Student’s tenth grade. By then Belmont had Landmark’s teachers’ reports, a summary worksheet that documented the areas to be targeted the following year and its use of the LiPS program, Ms. McCarthy’s note to Mr. Kramer with teacher emails and Student’s work samples attached (PE-56; PE-57; testimony of Feerick). At the Team meeting, Parent requested that the LiPS program and Orton–Gillingham be used and added to Student’s IEP (PE-58; testimony of McCarthy).
Belmont ignored its responsibilities under the IDEA in failing to: convene the Team, reflecting all necessary special education services in the IEP, conducting the three year re–evaluation, and initiating transition planning23 . In all of these regards, Belmont violated Parents’ and Student’s federal and state procedural due process rights. The first two violations impeded Parents’ opportunity for meaningful participation in the decision–making process regarding provision of a FAPE to Student. 20 USC §1415(f)(3)(E)(2)(ii). Moreover, the combination of procedural violations impeded student’s right to a FAPE.
Despite the wealth of information against it, Belmont proposed to return Student to the same type inadequate program offered in the ninth and tenth grade. Returning Student to the regular education classrooms, with large numbers of students, would have continued to pose a problem for him due to his attentional and organizational issues. Dr. Engleman noted that even in much smaller classes at Landmark, Student still required reminders, redirection and assistance with organization.
Parents are correct that instead of providing a different approach, Belmont kept offering the same program year after year. When it reconvened the Team in June 2009, Belmont once again ignored relevant information and proposed a virtually identical IEP for Student’s eleventh grade. It is difficult to follow Belmont’s rationale in doing so when at this point, it no longer had Student in–district, had not conducted its own three–year re–evaluation, could not and did not offer Student participation in a language–based program, or even offer to increase direct services and remediation to Student. In light of the aforementioned and since all other available information supported continued placement at Landmark, Parents were justified in rejecting this IEP as well and continuing Student’s placement out–of–district.
At the Team meeting in June 2009, Belmont agreed to contract with Lesley to conduct Student’s re–evaluation (testimony of Kramer). Ms. McCarthy’s justification for not having arranged for the three–year re–evaluation due in January 2009 (for which she was responsible as Team liaison) was that nobody asked her to arrange for one (testimony of McCarthy). The Lesley evaluation conducted by Dr. O’Brien and Dr. Lindem in July 2009, corroborated much of the information already available to Belmont regarding Student’s overall average cognitive abilities, his significant language–based learning disabilities and executive functioning deficits, his severe academic skills deficits and other issues. The Lesley report contained several educational recommendations for Student, including the provision of on–going specialized instruction from a reading instructor/literacy specialist using a multi–sensory, highly systematic program to address Student’s reading, spelling, and written language skills deficits (PE-59). This report became available to Belmont on or about November 2009.
On December 8, 2009, half way through Student’s eleventh grade, Belmont convened the Team to discuss the Lesley evaluation (PE-59). Information regarding this evaluation had been provided to Ms. Glotzbecker by Dr. O’Brien during a telephone conversation prior to the Team meeting. A copy of her notes reflecting the telephone conversation was provided by Ms. Glotzbecker at the hearing. Ms. Glotzbecker presented the Lesley evaluation at the December 2009 Team meeting. Her notes reflected Dr. O’Brien’s findings that Student presented with a clear and severe history of developmental dyslexia, phonological awareness weaknesses, ADHD, sensory motor weaknesses, and his surprise at Student’s lack of improvement. The notes further contain Dr. O’Brien’s explanation of the severity and impact of Student’s disabilities, noting that Student did not present as a “typical reading disordered student” but rather, his difficulties were individualized (SE-55). Dr. O’Brien further communicated that it was a critical period for Student regarding his decision to “buy into” school because of the impact his learning disabilities had on his self–esteem. Ms. Glotzbecker’s notes further reflect Dr. O’Brien’s endorsement of Landmark for Student as a placement that offered more interventions and had a staff more exposed to students with co–morbid conditions ( Id. ). They further note Dr. O’Brien’s concerns that Student would not be able to access the curriculum in regular education classes, and that the reading supports provided to Student had started too late “as the brain was less plastic for expressive and receptive language at that point” (SE-55; testimony of Glotzbecker). Ms. Glotzbecker testified that she concurred with the diagnosis of a reading disability (though not the severity described by all other evaluators) and acknowledged that Student continues to present difficulties in the areas of decoding, encoding, phonological awareness and fluency (testimony of Glotzbecker). She further testified that the Learning Center in Belmont could implement the recommendations contained in the Lesley report regarding attentional and executive functioning issues, and further testified that most of the recommendations in the report are accepted best teaching practices used regularly in the regular education classrooms in Belmont ( Id. ). Ms. McCarthy and the rest of the Belmont Team concurred with this opinion.
At the Team meeting of December 2009, Mr. Krom and Mr. Feerick offered explanations of Student’s program at Landmark including his daily tutorial, provided an update of his performance at Landmark, and discussed the impact of Student’s disabilities on his learning. They also described the methodologies used, including the LiPS program, and discussed Student’s transition from the tenth grade to the eleventh grade tutorial (PE-60; PE-67; testimony of Feerick, Krom).
Once again, despite the wealth of information available to Belmont’s Team, the IEP developed by Belmont covering the period from December 2, 2009 to December 2, 2010, offered participation in a full inclusion program with regular education classes at the college preparatory level, Learning Center support, and consultation between the regular education teachers and the special education teacher. No other special education intervention was offered, nor was there a transition plan form included in this IEP (PE-63). Parents rejected the proposed IEP on February 9, 2010 and requested funding for Student’s prospective placement at Landmark as well as reimbursement for all previous expenses associated with their unilateral placement ( Id. ).
Student’s Team convened again on June 23, 2010 to plan for Student’s twelfth grade. In addition to all of the previous information available to the Team, Dr. Marilyn Engelman’s evaluation report detailing Student’s language–based learning disabilities and his executive functioning deficits, as well as her recommendations for Student’s placement in a small–group, language–based program with daily tutorials, were discussed. Dr. Engleman supported Student’s placement at Landmark and explained the ways in which the program helped Student (PE-65). Mr. Krom explained that Student continued to require the one–to–one tutorial language arts tutorial at Landmark, as well as the additional check–ins at the beginning and the end of the day (testimony of Krom).24 Additionally, Ms. Glotzbecker and Ms. McCarthy discussed their observations of Student at Landmark including the one–to–one tutorial where they observed Mr. Feerick spend five or so minutes with Student on organizational issues and the remainder of the forty–five minutes of the session on language issues. They both had an opportunity to discuss the one–to–one tutorial with Mr. Feerick (SE-2; testimony of McCarthy, Glotzbecker, Feerick). Ms. McCarthy testified that Student’s continued need for participation in a small group, language–based program and the one–to–one language arts tutorial was discussed at the June 2010 Team meeting (testimony of McCarthy).
Regarding transition planning, none of the IEPs proposed by Belmont for the tenth, eleventh, or twelfth grades considered transition planning and/or transition services as required by state and federal law. Similarly, Belmont did not perform any assessments to ascertain the need for transition services nor has it discussed with Student his vision or plans after he graduates from high school. Student wishes to attend college as expressed in his college essay prepared at Landmark (PE-74). Nevertheless, Student’s Belmont Team was aware of this as reflected in his IEPs Vision Statement. Belmont however, proposed no plan to help him achieve this goal.
It was not until the Hearing that Ms. McCarthy produced for the first time an IEP covering the period from June 23, 2010 to June 23, 2011 that contained a Transition Plan. This document however, was never forwarded to Parents. The Notice of Proposed School District Action (N1) that accompanies this IEP is dated June 23, 2010 and is different to the actual N1 that was sent to Parents with a proposed IEP dated June 24, 2010 (SE-54; PE-66; testimony of McCarthy). Belmont’s last minute attempt, is the proverbial “too little too late” to overcome its legal mandate to provide transition planning. See In Re: Dracut Public Schools , 15 MSER 78 (2009), 2010 WL 3504012 (9/3/2010).
I was not persuaded by the testimony offered by several of Belmont’s witnesses. The record shows that Ms. McCarthy has limited experience as a special education teacher, she does not hold a degree as a regular education teacher, and although she is currently working towards her masters degree in special education, moderate disabilities grades 5 to 12 at Lesley University, she did not and does not yet hold a degree as a special education teacher, and her certification by DESE is a preliminary licensure (SE-42). Ms. Glotzbecker is a DESE–certified school psychologist whose only full–time employment following completion of her college, master’s program and certificate of advanced studies, has been in Belmont (SE-42). She is not licensed as a psychologist by the Commonwealth of Massachusetts and has no experience or credentials as a special educator. Ms. Glotzbecker has never worked with Student. Neither had any familiarity with Landmark prior to their visit, neither had experience as teachers in a substantially–separate language–based classroom, or work experience in a private special education school (testimony of Glotzbecker, McCarthy). As such, their opinions regarding Landmark are given little weight (testimony of McCarthy, Glotzbecker).
Furthermore, I was not persuaded by the testimony of Ms. Glotzbecker. She did not agree with the testing results, diagnosis or recommendations made by far more experienced evaluators and opined that at this point, Student no longer requires one–to–one tutoring or reading instruction. Instead, she chose to rely on her own interpretations and minimized or disregarded statistically–significant data obtained through multiple, evaluations/testing outside Belmont. She seemed unable to appreciate Student as a complex individual with co–morbid diagnoses. Ms. Glotzbecker’s first hand knowledge of Student was limited to her observation at Landmark and her review of previous tests/evaluations (SE-3; testimony of Ms. Glotzbecker). While Ms. Glotzbecker may be knowledgeable regarding administration and scoring of certain tests, her inexperience compared to all other evaluators and overzealousness in defending Belmont’s position, compromised her credibility and reliability as a witness.
Even though Ms. Glotzbecker has not taught in any public school district in Massachusetts, she testified that the college preparatory level program at Belmont was at a higher level than the equivalent program in other public schools, and stated that the college preparatory level classes and the honors level classes in Belmont used the same text books. She lacked knowledge as to how many other students in Belmont’s High School read at the same level. In her position as school psychologist, Ms. Glotzbecker conducts evaluation of students (testimony of Glotzbecker). As such, I find that her credibility and reliability as a witness was compromised and therefore, I give little weight to her testimony.
Additionally, many of the regular education teachers that testified on behalf of Belmont possessed limited knowledge of Student. While Mr. Lefebvre, Mr. McAllister, Ms. Goodrich, Ms. Virgilio and Ms. Prevost came across as committed, competent, wonderful teachers, they were regular education teachers inadequately prepared to provide the types of language–based intervention required by Student. They also lacked sufficient basis to form an opinion regarding provision of FAPE to Student through regular education with minimal or no support, and further lacked understanding of the severity and interrelation of Student’s disabilities. None of them was a special education teacher able to deliver special education teaching methodologies.
Neither Mr. Lefebvre, a physics teacher at Belmont High School, nor Mr. McAllister, Director of Social Studies, ever taught Student while at Belmont, nor would they have been assigned as Student’s teachers had he remained in Belmont for tenth, eleventh and twelfth grades. Neither, Mr. Lefebvre nor Mr. McAllister, holds a degree in special education, and neither had personal knowledge of Student or had reviewed any of his records (testimony of Lefebvre, McAllister).
Similarly, Ms. Goodrich, an English teacher, had never taught Student and is not a special education teacher. She had no knowledge of Student’s IEP or records and could not comment on Student’s progress in his ninth grade English class. She testified that last year, while Student attended eleventh grade in Landmark, Ms. McCarthy or her paraprofessional were present in Ms. Goodrich’s ninth grade CP class two out of the four days the class met. Ms. McCarthy however, did not know if Ms. McCarthy or her paraprofessional would have been present in Student’s proposed tenth and eleventh grade English classes had he attended Belmont, or whether they would be present in his twelfth grade English class were he to attend Belmont (testimony of Goodrich).
Ms. Goodrich testified that during the 2010–2011 school year, Belmont would offer a two credits, tutorial class that will be available for the first time for twelfth graders. It is intended to allow additional opportunities to practice skills to students who might be struggling in their regular education English class. The class will meet for four and a half, twenty–six minute periods per week and will be taught by a regular education teacher. No information was provided regarding the prospective students, the size of the class, or the curriculum or teaching methodologies to be utilized, if any. There is no evidence that this class was discussed at either of the Team meetings where’s Student’s twelfth grade program was discussed, nor has it been proposed for Student’s twelfth grade (SE-42; PE-63; PE-66; testimony of Goodrich, McCarthy, Glotzbecker, Kramer).
Turning to Mr. Kramer, his position that all of Student’s services can be delivered through regular education, and/or in the context of the Learning Center is not supported by the weight of the credible evidence. What is evident is that Belmont High School does not offer co–taught special education classes, or a substantially separate classroom instruction for language–based learning disabled students (testimony of Kramer). Instead, these students are fit into regular education classes with Learning Center support, a model which, in the instant case, was wholly inappropriate. Furthermore, when asked how a parent would know what services a student would receive if not included in the IEP, he provided no satisfactory response. Presumably, since numerous services are provided to students through regular education, whether eligible to receive special education or not, parents must take a leap of faith and hope that Belmont will provide the services the child needs. The argument that the service does not have to be included in a student’s IEP because the one–to–one specialized, individualized service (such as the one provided by Ms. Paykuss) is intended to remediate a deficit and since it is part of the regular education services offered, thus not a deviation, is wholly unpersuasive. Student is an IDEA–eligible student who required specialized services to access the curriculum and make effective progress. Ms. Paykuss herself, who had been hired to instruct Student in Orton–Gillingham and Project Reed writing not only recommended an increase in the provision of services only two months into initiating her work with Student, but also recommended that the aforementioned services continue into the summer and into the following school year. At minimum, Belmont was responsible to have included this service in Student’s ninth and tenth grade IEPs. Most alarming is the fact that Student was virtually functionally illiterate a quarter into his ninth grade, and yet, Belmont’s staff insisted he did not need Ms. Paykuss’ services to access the curriculum, when the weight of the evidence overwhelmingly supported participation in this as well as a language–based program. Failure to include the aforementioned services in Student’s IEPs25 was a serious violation of Student’s procedural due process rights with significant implications, including the impact on Student’s stay–put rights. If a service is not delineated in a student’s IEP, that student does not have a right to continuation of such service during the pendency of an appeal. See 20 USCS §1415 et seq.; 20 USCS §1415(j); 603 CMR 28.08(7). Thus, I do not find Mr. Kramer’s testimony to be credible or reliable.
In contrast, I found Dr. Brochin’s, and especially Dr. Engleman’s, Mr. Feerick and Mr. Krom’s testimony to be credible and persuasive regarding their findings and recommendations for Student. Among them, they had evaluated and or worked with Student. They attended Team meetings and voiced their findings, concerns and recommendations.
Dr. Brochin and Dr. Engleman observed Student in his programs at Belmont and Landmark. They reviewed available past and current records and also interviewed Student and Parents. Their recommendations were consistent and appropriate to address Student’s difficulties and have now proven to be sound when taking into account Student’s experience at Landmark.
The weight of the credible evidence supports a finding that none of Belmont’s proposed IEPs for the tenth, eleventh or twelfth grades (offering Student all of his academic instruction in regular education classrooms with participation in a Learning Center as it had previously offered in ninth grade and with no one–to–one tutorial or any specialized reading and written language services) was reasonably calculated to afford Student a FAPE. Similarly, none of these IEPs contained any services to address Student’s visual–motor integration and fine motor skills deficits, or transition planning. Furthermore, the evidence supports a finding that Student has required and continues to require a language–based program that is, integrated, where skills are taught and carried over from one setting to the next and where the instruction is delivered in small–group settings. He also requires assistance with planning, organization and homework as well as specialized reading instruction. As such, Parents were justified in seeking an alternative placement capable of servicing his language–based deficits appropriately.
Having met their burden of proof as to the inappropriateness of Belmont’s IEPs,
I turn to the appropriateness of Student’s program at Landmark to ascertain whether Parents are entitled to reimbursement for their unilateral placement.
The Landmark Program:
Student attended Landmark for his tenth and eleventh grade, and is enrolled to attend this school year (2010-2011), his twelfth grade. Student fits the typical profile of students at Landmark: average to above average cognitive abilities with language–based learning disabilities and some with executive functioning and/ or organizational issues. According to Mr. Feerick, when comparing Student to other students at Landmark, Student’s decoding and fluency skills would be considered average, his comprehension skills may be slightly above average, and his organizational skills/ executive functioning skills would be below average. Regarding his academic skills, Student, like other Landmark students, is functioning below grade level (testimony of Feerick, Brochin, Engelman).
Student is in the Expressive Language Program at Landmark (the standard program). In this program students receive a daily forty–five minute, one–to–one language arts tutorial each school year. The language arts tutorial is an integral part of the Landmark program. The areas addressed in the tutorial are also addressed in the students’ language and academic classes. All students work on five core areas, and each student’s tutorial is individualized. All academic subjects in which Student partakes are taught in small group, language–based classes that meet daily. Each class has between five and six students and follows a language–based curriculum. Students in the Standard Language Arts program also receive a daily one–to–one language arts tutorial and attend small language–based classes for their academic subjects (testimony of Krom, Feerick).
The program at Landmark is consistent with the recommendations of Dr. Brochin and Dr. Engelman, Dr. O’Brien and Dr. Lindem from Lesley (PE-59; PE-65; testimony of Brochin, Engelman). There , Student has been able to progress effectively with the right combination of small group, language–based instruction with teachers trained and capable of providing a nurturing, supportive environment. While the IDEA favors provision of specially designed instruction in regular public schools when possible, with students participating in the same activities as non–handicapped students to the extent possible, when this is not feasible, the IDEA also provides for placement in private schools at public expense. See School Comm. of Burlington v. Dept. of Ed., 471 US 359, 369 (1985) .
Both Ms. Glotzbecker and Ms. McCarthy observed Student at Landmark in May and June 2010. They reported that Student was doing well in his one–to–one tutorial and in the small group academic classes. Ms. McCarthy observed Student actively participating in his classes. He seemed comfortable with his teachers and despite being fidgety and appearing distracted at times, he “was able to keep up with the pace of instruction and seemingly has a firm grasp of the material, and was often ahead of the other students”. In this regard their testimony is consistent with that of Dr. Brochin, Dr. Engleman and Mr. Feerick and hence, credible (SE-2; SE-3; SE-42; testimony of McCarthy, Glotzbecker). Ms. Glotzbecker’s and Ms. McCarthy’s lack of support for Student’s placement at Landmark and further criticism of the program is however, not persuasive for reasons explained earlier in the conclusion section of this decision.
The evidence is persuasive that Student’s disabilities significantly impact his ability to make educational progress commensurate with his potential and that the IEPs offered by Belmont for tenth, eleventh and twelfth grades did not offer him a FAPE (testimony of Brochin; PE-34; PE-38). The evidence further supports a finding that Student has made demonstrable progress at Landmark. Due to the severity of his needs and academic deficits, he continues to require the type of integrated, small group, language–based services offered at Landmark in the twelfth grade (PE-65; PE-67; PE-68; testimony of Engelman, Feerick,).
Consistent with the IDEA, in Massachusetts the program offered to the eligible student by the public school must allow the student to make meaningful, effective progress, and do so in the least restrictive setting. The evidence shows that even when everything indicated that Student required more intensive programming than he was receiving to make effective progress, year after year Belmont offered the same partial inclusion in regular education courses with Learning Center support. The programs offered from 2008 to date were inadequate to meet his needs and therefore denied him the opportunity to receive a FAPE.
In contrast, Landmark offered Student an appropriate program which has restored his confidence and allowed him to see a future and make real his post–high school education goal of attending college.
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 supports a finding in favor of Parents regarding their decision to place Student at Landmark. Belmont does not dispute that Parents met the necessary notice requirements pursuant to the IDEA prior to their unilateral placement of Student at Landmark. As such, Parents are entitled to all out of pocket expenses associated with Student’s unilateral placement at Landmark reimbursement for Student’s placement at Landmark for the 2008-2009 school year, the 2009-2010 school year, and the 2010-2011 school year.
Taking into account that Belmont does not have an appropriate language–based program for Student at Belmont High School, the Team must draft an IEP providing for placement of Student at Landmark through June 23, 2011, the remainder of his twelfth grade year.
ORDERS:
1. Belmont shall reimburse Parents for all of their out–of–pocket expenses (including transportation) associated with the day portion of Student’s private placement at Landmark for the 2008–2009 and 2009–2010 school years, as well as the first part of the 2010–2011 school year.
2. Belmont shall convene Student’s Team to draft an IEP that offers Student prospective placement at Landmark through June 23, 2011, the end of the IEP period for Student’s twelfth grade. Belmont’s Team shall also address Student’s transition plan and incorporate his vision of attending college.
By the Hearing Officer,
___________________________________________
Rosa I. Figueroa
Dated: November 1, 2010
_____________________
I take this opportunity to thank both attorneys for their thorough and well argued closing statements.
1
This exhibit does not relate to the courses taught to Student but rather to the tenth grade social studies/world history class (testimony of Prevost).
2
Some of Belmont’s exhibits between SE-45 and SE-54 were not produced by Belmont prior to Hearing or in response to Parents’ requests for production of documents. Ms. Erin McCarthy testified that some of them were in her personal records, not in Student’s records and therefore, not produced by Belmont in response to the requests for production of documents (testimony of McCarthy). According to Parents’ attorney, some of the documents included in Belmont’s exhibit book had never before been received or seen by Parents.
3
SE-24 only reflects Student’s grades for the first semester of his seventh grade (SE-24). In this regard, PE-27 is a more reliable document.
4
Parents first received a copy of this document at the Hearing in August 2010.
5
A score of 218 or lower is a failing score (testimony of Ms. McCarthy).
6
Even though Belmont stated in the IEP that the evaluation at Lesley Learning Lab was an independent evaluation , this evaluation was not an “independent evaluation” within the context of the IDEA. Rather, what Belmont meant was that the evaluation would be conducted by a provider independent of Belmont. Since Belmont had not yet conducted its own three–year re–evaluation, the evaluation at the Lesley Learning Lab constitutes Belmont’s evaluation.
7
The report of this comprehensive evaluation contains fifty-one pages. Although I rely on its findings and recommendations, only some relevant portions and test scores are mentioned.
8
Specifically the report stated:
“[Student] displayed highly variable reading skills on the tasks of this assessment, with a number of skills placing him below expectations for his age and grade. Discrete performances ranged from borderline to the mid to lower end of average. In analyzing[Student]’s performance, it appears that he displayed a number of vulnerable fundamental reading skills, such as phonological awareness/decoding, sight word recognition, and rapid naming, which often interfere with a student’s ability to read with speed and fluency, which placed [Student] below expectations for age). However, he displayed age-appropriate higher-level reading skills that involved deriving meaning from and making inferences about written text (e.g., comprehension) on the tasks of this assessment. This pattern of performance is often noted in students with a partially-remediated reading disorder and [Student] may continue to display increased difficulty when he is expected to integrate and simultaneously apply these skills in ‘real life’ reading situations. Such problems may also be exacerbated by his documented attention and self-monitoring difficulties” (PE-59).
9
“(1) difficulties with attention/executive functioning (characterized by vulnerable cognitive and behavioral regulation), (2) difficulties with sensory–motor functioning (characterized by vulnerable fine and gross motor precision, visual–motor integration, and general sensory processing), and, most saliently, (3) difficulties with language –based academic skills development (characterized by vulnerable basic reading and written expression skills)” (PE-59),
10
In her testimony Dr. Engleman corrected a typographical error appearing on page 18 of her report. She explained that the test score referred not to reading rate but to reading comprehension (testimony of Egleman).
11
20 USC 1400 et seq .
12
MGL c. 71B.
13
MGL c. 71B, ss. 1 (definition of FAPE), 2, 3.
14
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”).
15
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”).
16
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.”).
17
See generally In re: Arlington , 37 IDELR 119, 8 MSER 187, 193-195 (SEA MA 2002) (collecting cases and other authorities).
18
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 www.doe.mass.edu/sped) (Massachusetts Education Reform Act “underscores the Commonwealth’s commitment to assist all students to reach their full educational potential”).
19
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 ”).
20
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.”)
21
Schaffer v . Weast , 126 S.Ct. 528 (2005) places the burden of proof in an administrative hearing on the party seeking relief.
22
Previous testing performed in August 2007 yielded the following results: Rate –5 th %ile (4.2 grade equivalence), Accuracy – <1 th %ile (2.4 grade equivalence), and Fluency – <1 st %ile (3.2 grade equivalence), showing that Student was lagging far behind same age peers and performing well below his cognitive potential (PE-68).
23
None of Student’s IEPs for the ninth, tenth, eleventh or twelfth grades include any type of transitional plan or even a statement of Student’s transition vision.
24
At the Hearing Mr. Kramer and Ms. Glotzbecker disputed Mr. Krom’s and Mr. Feerick’s statements regarding Student’s need for the one–to–one language arts tutorial. Mr. Kramer and Ms. Glotzbecker’s testimony was inconsistent with Ms. McCarthy’s Team meeting notes (SE-4), Ms. McCarthy’s testimony, with Mr. Krom’s and Mr. Feerick’s testimony, and also with the Landmark documents and progress reports. As such, I do not credit the testimony of Mr. Kramer and Ms. Glotzbecker in this regard and instead find Mr. Krom’s and Mr. Feerick’s testimony to be reliable and consistent with the documentary evidence.
25
“ Contents of the IEP . Upon determining that the student requires special education and based upon the evaluative data, the Team shall write an IEP for the student and decide the student’s placement. The IEP shall describe the special education and related services that the student required and shall include all elements required under federal and state law.” 603 CMR 28.05(4).