Student v. Marlborough Public Schools – BSEA # 11-3650



<br /> Student v. Marlborough Public Schools – BSEA # 11-3650<br />

COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

SPECIAL EDUCATION APPEALS

In Re: Student v. Marlborough Public Schools

BSEA # 11-3650

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 requested a Hearing in the above-referenced matter on December 17, 2010. On January 5, 2011, Marlborough Public Schools (Marlborough) filed a Partial Motion to Dismiss Parents’ Hearing Request with Prejudice in reference to all issues predating January 2010 which were the subject of a Settlement Agreement between the Parties and pursuant to which Marlborough had partially performed. Parents objected to Marlborough’s Motion on January 13, 2011, and a ruling granting Marlborough’s motion was issued on January 21, 2011. Thereafter the Parties filed postponement requests of the Hearing date and the final Hearing dates were set on March 16, for May 2011. The Parties also participated in a Pre-Hearing Conference on March 22, 2011, during which the issues and scope of the Hearing was discussed and agreed to by the Parties. The Hearing was held on May 24, 25 and 26, 2011, 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

Carla C. Leone, Esq. Attorney for Parent/Student

Fiona Peoples Assistant to Attorney for Parent/Student

Christa Abbott Reading Specialist

Eileen Antalek, Ed.D. Educational Consultant

Lynne Carlson-LeFort Parents’ Advocate

Eva Jansiewicz Pediatric Neuropsychologist

Carolyn Lyons, Esq. Attorney for Westford Public Schools

Ned Pratt Director of Pupil Personnel Services, Marlborough Public Schools

Meredith Sullivan Counselor, Learning Prep School

Nancy Rosoff Director, Learning Prep School

Joel Simpson Eighth Grade Administrator, Learning Prep School

Justin Melville Ninth grade History/Language teacher, Learning Prep School

Eleanor Scudder Eighth grade History/Language teacher, Learning Prep School

Jessica De Santis Catuogno Court Reporter

Darlene Coppola Catuogno Court Reporter

The official record of the hearing consists of documents submitted by Parents and admitted into evidence (PE-C99 et seq.)1 , and Marlborough Public Schools (Marlborough) marked as exhibits SE-1, SE-2, SE-5; SE-8; SE-9; SE-12 through SE-42; recorded oral testimony and written closing arguments2 . The record closed on June 20, 2011.

HEARING ISSUES:

1. Whether the IEP promulgated by Marlborough, covering the period from April 16, 2011 through April 15, 2011, calling for placement at Learning Prep School (LPS) was reasonably calculated to offer Student a free and appropriate public education (FAPE) consistent with state and federal law? If not;

2. Whether Parents are entitled to reimbursement for their unilateral placement of Student at Brehm Preparatory School (Brehm), with transportation and associated expenses, for the period from September 13, 2010 through April 2011?

POSITIONS OF THE PARTIES:

Parents’ Position:

Parents seek reimbursement for all out–of–pocket expenses associated with their unilateral placement of Student at Brehm, a private, residential school in Illinois, for the period from September 13, 2010 through April 2011.

Prior to entering Brehm, Student attended LPS at Marlborough’s expense pursuant to a settlement agreement entered into by the parties in January 2010. At Parental request, the agreement offered Student a trial period at LPS, as well as a means for Parents to extricate themselves from the agreement if the placement proved inappropriate for Student. According to Parents, LPS failed to offer Student a FAPE and they had no other recourse but to place Student at Brehm, a placement recommended in 2009 by one of their independent evaluators. According to Parents, Student has flourished and progressed effectively at Brehm. Parents further allege that Marlborough committed procedural transgressions including failure to convene a proper Team in a timely fashion, and failure to draft an IEP and/ or to amend the IEP in October 2010.

Marlborough’s Position:

Marlborough does not dispute Student’s eligibility to receive special education services, but argues that Student can be appropriately serviced at LPS where he was making effective progress. Marlborough states that it acquiesced to Parents’ request to have Student placed at LPS through the 2011-2012 school year, but Parents pulled Student out of LPS and placed him at Brehm at the beginning of the 2010-2011 school year. Marlborough asserts that Parents never had any intention of placing Student at LPS for the duration of the agreement, and as such entered into the settlement agreement in “bad faith”.

Regarding Parents’ assertion that Student requires residential placement for educational reasons, Marlborough disputes this assertion and instead argues that Student’s need to attend Brehm residentially is due to Brehm’s out of state location. Marlborough argues that there are several problems with Brehm including the lack of individual one-to-one reading and counseling services, and failing to offer Lindamood Bell LIPS, Student has not received science during the 2010-2011 school year, and he has undergone more schedule changes there than at LPS.

Lastly, Marlborough denies any procedural wrongdoing.

FINDINGS OF FACT:

1. Student is an almost sixteen-year-old resident of Marlborough who carries a diagnosis on the Autism Spectrum and presents with expressive/ receptive language disabilities, dyslexia, phonological processing disorder and dysgraphia, all of which impact upon his communication and social relationships (SE-8). He is very good at doing puzzles, has a good sense of humor, artistic abilities and loves to cook. He is very caring and joyful (Mother, Father, Antalek). His eligibility for special education services that require, at minimum, private day placement is not in dispute at this time.

2. According to Mother, Student is a perfectionist and when Student gets upset he speaks with his hands using a different voice and will sometimes say “I am going to turn into a wolverine”, or “I am no good”. (Mother).

3. Informal reading evaluations performed by Rebecca Zieminksi (literacy coach) and Kirti Withrow (BCBA, ABA specialist) in November 2008 using the Jerry L. Johns Basic Reading Inventory (IRI) found Student to be an independent reader at the second grade level and an instructional reader at the fifth grade level. He evidenced internalization of some of the phonemic instruction received but was inconsistent in its application. The evaluator explained that of the four interdependent, cueing systems needed to read fluently and which help readers make sense of the text (Graphophonic Cueing, Pragmatic Cueing, Semantic Cueing, and Syntactic Cueing) he evidenced relative strength in the first. According to the evaluators, Student’s reliance or proficiency on only one system hinders his ability as a reader to decode and or comprehend the text. They noted that Student required work using multiple instructional strategies (SE-35).

4. A psychological evaluation report was prepared by Stacie Perlstadt, M.S., C.A.G.S., Marlborough School Psychologist, in November 2008 (SE-36). According to this report, during three classroom observations, Student advocated for himself, sought adult help when he was having difficulty with a task, followed directions within one to two prompts, stayed on task when completing work he understood and off task when not receiving help with tasks that he did not understand. He was cooperative and hardworking during the testing portion of the evaluation but demonstrated some anxiety over the interruption to his daily routine. On the Woodcock- Johnson III (WJ-III) Tests of Cognitive Abilities, he scored in the average range for verbal ability (54 th percentile), thinking ability (43 rd percentile), and phonemic awareness (67 th percentile), and scored very low on cognitive efficiency (2 nd percentile), and working memory (2 nd percentile), placing his intellectual ability in the low average range for his age group. On the Wide Range Assessment of Memory and Learning- Second Edition (WRAML-2) he scored in the 73 rd percentile for visual memory, placing him in the upper limit of the average range of ability showing that he had great strength in memorizing information presented to him visually (SE-36).

5. In 2009, Parents filed a request for hearing (BSEA # 10-3164) challenging the appropriateness of Student’s program and placement in Marlborough for the period covering 2008-2009 and 2009-2010, and seeking public funding for Student’s private placement.

6. Prior to choosing LPS, in 2009, Parents explored other programs such as Willow Hill, Curtis Blake, Eagle Hill, and also made phone calls to Beale Academy, Reed Academy and Brehm School in Illinois (SE-31; Mother). Also, in December 2009, Marlborough forwarded referral packets to Bi-County Collaborative, and FLLAC Educational Collaborative. While some of the programs manifested interest in having Student visit, most of them were not appropriate for Student (SE-28; SE-29; SE-30; SE-31; Mother, LeFort). At Parents’ request, received on December 4, 2009, Marlborough also forwarded referral packets to Clearway School and LPS on December 14, 2009 (SE-32; SE-33; SE-34).

7. Electronic mail correspondence dated December 16, 2009, between Parents’ then attorney and Marlborough’s attorney mentions that Student had been accepted to Brehm (SE-31, Mother).

8. Student received home tutoring between November 30 2009 and January 17, 2010. Parents also provided speech therapy through Friendly Network which continued after Student began attending LPS through the summer of 2010 (Mother).

9. On January 22, 2010, the Parties entered into a settlement agreement as a result of which Student’s placement at LPS was publicly funded. The agreement encompassed Student’s educational placement for the remainder of the 2009-2010, 2010-2011 and 2011-2012 school years, and the summers of 2010 and 2011. It called for stay-put placement at LPS should a dispute arise between the Parties, and through the end of an appeal of any BSEA decision in District Court (SE-27). It also included an early termination of enrollment provision which stated:

Should [Student] cease enrollment at LPS any time prior to the end of the period covered by this agreement, Parents shall notify Marlborough promptly, and Marlborough will hold a Team Meeting within ten (10) calendar days of receipt of notice from the Parents. Parents and Marlborough shall have all rights and legal protections afforded to them pursuant to state and federal laws and regulations in the development of an IEP through the Team process (SE-27).

Mother testified that she had been told by her previous representatives that no Hearing Officer would allow an out of state placement if an instate placement accepted Student and Parents could not show that it was inappropriate. Parents ensured that the agreement allowed for reconvening of the Team and a way out of the agreement if LPS could not service Student appropriately (Mother, Father).

10. As a result of the Settlement Agreement, Student initiated his trial period at LPS on January 22, 2010. The trial was successful and Student was fully accepted to LPS where he completed the second semester of the 2009-2010 school year, and then participated in LPS’ two week social skills summer program (Rosoff, Mother).

11. The settlement agreement called for administrative drafting of the IEPs while Student was at LPS (SE-27).

12. Nancy Rosoff, Director of LPS, testified that she typically turns away approximately forty percent of the referrals she gets because the students are not compatible with LPS. When she first received Student’s application in the summer of 2009, she turned it down because she did not have an appropriate eighth grade grouping for Student. When Dr. Castro, Dr. Jansiewicz and Ms. LeFort interceded in January 2010, she agreed to accept Student for a two week trial period. During this period Student’s therapies were not in place as the staff was getting to know Student and was trying to ascertain if he could be served at LPS. The faculty as a whole concluded that Student would benefit from a program at LPS, and found that there were some more impaired students and some less impaired than Student at LPS. Most of the students at LPS have significant working memory issues (Rosoff).

13. Student’s teachers/ service providers at LPS all hold masters level degrees in their area of concentration and the majority hold a master’s degree in special education. Those who do not hold a masters degree in special education work on a waiver, and have five years to complete said master’s (Rosoff). They also hold the following certifications: Nell Scudder Massachusetts Department of Elementary and Secondary Education (MDESE) in moderate disabilities K-8; Justin Melville in History grades 5-8, Social Studies 9-12 and has a waiver in Moderate Disabilities; and, Meredith Sullivan is a Massachusetts certified by the Licensed Social Worker (SE-39; SE-40; SE-41). Nancy Rosoff, LPS’s Director is certified in American Speech and Hearing Association and as an Administrator of Special Education in Massachusetts. In the past, she also held a certificate of Clinical Competence in Audiology, Certificates as Teacher of the Deaf by the Conference of Executives and the American School for the Deaf (SE-42).

14. There are three full-time nurses and ten speech and language pathologists, eight of whom are full time employees at LPS (Rosoff, Simpson). Two of the staff are trained in Lindamood Bell LIPS, two others in Lindamood Bell Visualizing and Verbalizing , some are trained in Wilson and Orton-Gillingham, and all are trained in the use of Thinking Maps. The school has opened a Kurzweil laboratory, and Kurzweil is taught to all high school students (Rosoff).

15. LPS offers language-based instruction, following the Massachusetts Framework Curriculum, and none of the grades is combined except for math. Thinking Maps (a metacognitive structure) are used across all areas, and all of the staff is trained in this method. Students are grouped into homogenous groups according to skill level, language impairment level, and social/ emotional wellbeing. Social skills are taught and incorporated across the curriculum. There are also social skills groups which are created at the beginning of the school year. The high school offers five and four year programs and all students are part of a prevocational program. Students are taught how to cope with their disabilities and all students receive counseling. All students are given exposure to computers. From their junior year on, all students have to apply for and participate in a work study program as part of their career education. Eighth, ninth and tenth graders have to take science and pass the MCAS. According to Ms. Rosoff, all students passed the science MCAS this year. Each academic course and service (speech and language, occupational therapy, and other) is given equal importance and students are not pulled out of an academic course to receive a service (Rosoff).

16. LPS offers assistive technology such as Kurzweil, and laptop computers and/ or recorders are used by students who need them in the classroom (Sullivan). Student would receive Kurzweil in ninth grade as part of his language arts class, and would have been part of a social skills group in addition to the social skills training that occurred in the classroom (Scudder).

17. While at LPS, Dr. Abele, an autism specialist, observed Student and made recommendations to the rest of the staff regarding programming (Rosoff).

18. Consistent with the settlement agreement between the Parties, a first administrative IEP/ placement page covering the period from February 1, 2010 through June 15, 2010 was received by Marlborough on February 12, 2010, and thereafter forwarded to Parents. Parents consented to the placement on February 23, 2010 (SE-23; SE-24).

19. Student’s LPS Team met on April 16, 2010 to draft an IEP for the period from April 16, 2010 through April 15, 2011 calling for Student’s continued placement at LPS. Present at the Team were: Mother, Father, Joel Simpson (LPS Administrator), Nell Scudder (LPS Literature and Language Arts teacher), Meredith Sullivan (LPS counselor), Lynn Carlson-LeFort (Parents Advocate) and Eileen Antalek (Parents’ Independent evaluator) (SE-21). Dr. Antalek testified that she mentioned several times during the meeting that Student should receive Lindamood Bell LIPS (LIPS) and recalled that Mr. Simpson stated that he would look into it (Antalek).

20. The LPS IEP called for: two, forty-eight minutes each, individual speech and language services with the speech and language therapist; two, forty-eight minutes each speech and language sessions in a “co-taught push in basis” with the speech and language therapist; ten, forty-eight minutes each history/literature language sessions with the history/literature teacher; five, forty-eight minutes each reading /language Arts sessions with the language arts teacher; five, forty-eight minutes each science class with the science teacher; eight, forty-eight minutes each organization/work skills with the pre-vocational staff; five, forty-eight minutes each math with the math teacher; two, forty-eight minutes each health/student issues sessions with the counselor (through June 30, 2010); and, once per week, forty-eight minute counseling session with the counselor (SE-21). Additionally, between September 2010 and April 2011, Student would receive seven forty-eight minutes each organization /work skills sessions with the pre-vocational staff and one forty-eight minute session health and student issues with the counselor. The IEP also offered two week summer services including counseling and a tutorial. This IEP was forwarded to Marlborough on June 18, 2010. Marlborough in turn forwarded the IEP to Parents on July 13, 2010, and Parents responded in August 2010 (SE-21; SE-15).

21. Mother testified that during the initial months at LPS, Student was having a difficult time with the changes in his schedule, he was not oriented to the building and because he did not know where the bathroom was, he was not accessing one until he got home. She was also concerned that he was not receiving Lindamood Bell LIPS (Mother). Ms. Rosoff testified that once this concern was brought to the Team, she consulted with LPS’ reading specialist who did not endorse Lindamood Bell LIPS over other methodologies already in place. She further testified that if it had been recommended by a reading specialist, she would have offered it, but LPS has not seen major success with this methodology and their population (Rosoff). Mother did not observe Student during his tenure at LPS. She participated in four meetings with LPS personnel between January and June 2010. She stated that at home Student was spending a great deal of time in his room or wanting to go out to the woods by himself (Mother).

22. Parents’/ Student’s advocate, Lynn Carlson-LeFort, assisted Parents in their search for private schools and was instrumental along with Dr. Castro in securing LPS for Student. She testified that LPS was working very hard with Parents to provide a program that worked for Student. According to her, the issue was how to address Student’s phonological deficits and the use of LIPS. She attended the April 2010 Team meeting and noted that while the working draft IEP did not contain a social language/ pragmatics goal, one was included in the IEP forwarded to Parents (SE-23; LeFort). At the time of the meeting, Parents were awaiting additional information regarding the social pragmatic piece from an evaluation that needed to be completed at the Illy Center in West Newton (LeFort).

23. Ms. LeFort testified that most of her information on Student’s performance were per Parents report. She testified that she has known Ms. Rosoff and LPS for many years and was adamant that she did not know Ms. Rosoff to accept a student that was not appropriate for LPS or with whom she thought that LPS could not work. Ms. LeFort trusted Ms. Rosoff’s judgment totally in this regard (LeFort).

24. Joel Simpson was the eighth grade administrator at LPS. He testified that LPS staff was getting to know Student between the end of January and March 2010, and as they got to know him they made recommendations for modifications in his classes. Changes were made to his history class, which was divided into two smaller groups, but Student stayed with the same teacher except for one day; math was changed from basic math to applied math which was a higher level; and, as a result of the math change, his pre-vocational class also changed. These three changes occurred in March, and Student’s schedule remained the same therafter (Simpson, Rosoff). Mr. Simpson testified that it was not unusual for schedule changes to occur when students joined LPS in the middle of the school year. Mr. Simpson also testified that Dr. Kleiman, who was responsible for the supervisory work in speech and language, left at the end of the spring and was replaced by Deborah Harrison in May 2010 (Simpson).

25. During Student’s tenure at LPS Parents, Ms. Scudder and Ms. Kleiman had numerous conversations. Also, the staff at LPS has regular communication amongst supervisors, service providers, teachers and consultants to discuss students formally at specific times during the week, as well as informally as needed. Overall it was the teachers’ and service providers’ opinion that Student was making progress at LPS. LPS also has an autism/Aspergers specialist (Elsa Abele), and a psychologist, Dr. Dave Shim, who has been hired as a consultant (Simpson, Rosoff, Scudder).

26. Student’s LPS Progress Reports and work samples for the period from January through June 22, 2010 note Student’s progress in all of his classes, individual services and shops (SE-16; SE-17; SE-18; SE-19). Ms. Scudder noted that he was working hard on reading fluently using a tracking device and strategies to decode unfamiliar words and assist answering comprehension questions. He was using graphic organizers (i.e., Thinking Maps) and beginning to volunteer to read aloud. Ms. Scudder further noted that during the last quarter (April to June 2010), Student appeared sleepy and seemed to have difficulty sustaining attention. Overall, she found him to evidence less anxiety and to be growing in confidence (SE-16). His grade in literature was a C-. In language arts, also with Ms. Scudder Student obtained a B+, with the teacher noting steady progress as he received step by step directions, a slower pace to allow him to process the information and ask for clarification when needed. According to Ms. Scudder, he learned how to use the graphic organizers achieving success in generating basic paragraphs that included an “introductory sentence, topic sentence, supporting details / elaborations and a conclusion.” Successful use of the Thinking Maps by the April- June quarter also proved helpful in History and Language arts where Student obtained a B. In these classes, his performance was inconsistent on assessments and quizzes and he required additional time for completion. Overall, the teacher noted that his involvement and participation in class improved considerably by the last quarter. In math, his homework was always on time, and he evidenced good progress in using fractions, computations and problem solving which he completed with 80 % accuracy. He obtained an A- in math. In general science Student obtained a B- after a “very good” last quarter. The teacher, Matt Liebman, noted that Student came to class prepared, exerted good effort in class participation and in homework assignments, and was able to maintain his science binder organized with minimal teacher assistance. Mr. Liebman stated that Student’s class contributions demonstrated “advanced comprehension of the subject matter” but required prompts to stay focused. In physical education, he received a Pass (SE-16).

27. Student’s individual speech and language therapy was offered by Deborah Harrison, MA CCC, and focused on improving speech intelligibility and social/pragmatic skills. He demonstrated progress in his ability to monitor and adjust volume levels, reduce the rate of talking and improve prosody. Issues with nasality also contributed to reduced intelligibility of speech. Student stated that he had difficulty monitoring his tendency to blurt out words with a high volume, because they just came out unexpectedly making it difficult for him to control. Student’s statement was consistent with Ms. Harrison’s observations. Ms. Harrison recommended weekly consultation to the language arts classroom teacher, where social pragmatics skills, processing and thought organization could be supported, and a reduction in the individual speech-therapy sessions to once per week. This reduction in individual services took into account Student’s ambivalence and resistance to working individually on his speech issues (SE-16). The previous quarter report described him as an “engaging student who arrived on time and was cooperative during the sessions” (SE-17).

28. Language and literacy enhancement was provided using a co-teaching model with Nell Scudder and Molly Francis, M.A., CF-SLP. In this class, the emphasis was writing the eighth grade graduation speech by using circle maps, flow maps and Lindamood Bell Visualizing and Verbalizing (SE-16). Student was provided with visual aids placed around the room, was given a tracking device to use when reading, as well as other strategies. Ms. Scudder holds a master’s degree in special education and is certified by the Massachusetts Department of Elementary and Secondary Education in moderate special needs. She was Student’s language arts and history teacher. She noted that Student was eager to please and was invested in learning (Scudder).

29. Ms. Scudder noted progress in Student approximately one month into his tenure at LPS. She testified that he worked on enunciating better, was able to respond to minor prompts and self-correct. He was adapting well to the structure at LPS and was beginning to initiate greetings, make eye-contact, and participated in class. Academically, she opined that Student was able to comprehend material at the fifth grade level with a moderate degree of scaffolding. Ms. Scudder opined that Student did not demonstrate the need for a more restrictive setting than LPS (Scudder).

30. In his health and student issues class Student obtained an A-. This class addressed subjects such as bullying, conflict resolution, stereotypes and tolerance. The teacher, Jessica Felton, notes that he needed improvement with issues relating to taking learning risks, maintaining attention to class, developing self-advocacy skills, and initiating tasks appropriately (SE-16).

31. Student’s pre-vocational shops, used to foster the development of basic work attitudes, behaviors and skills which students can then generalize into any task in which they participate, involved food services and horticulture. He achieved passing marks for both but required maximum supervision in food services (SE-16). During the previous quarter he participated in landscaping and woodworking, during which students were required to build a toolbox beginning with technical drawings. Student earned an A in this class (SE-17).

32. At LPS, Student also received individual counseling, which he attended regularly during the last quarter, with Meredith H. Sullivan, who holds a Masters degree in Social Work. She was supervised by Dr. Kleinman. In counseling, Student gained trust in their therapeutic relationship, and was able to demonstrate self-advocacy skills on two occasions. Self-advocacy is a skill which is also fostered in the classrooms. In counseling, they discussed how to form relationships and what types of questions to ask to find out information about others in conversation, but Student was unable to ask these questions regularly in a social context. Ms. Sullivan, also helped Student orient to the physical lay-out of the school (something she did with Student even before he was her counselee) and also to cope with occasional school disruptions which caused anxiety to Student. She recommended continued individual counseling with a focus on social skills development for the following school year. Ms. Sullivan testified that Student did not refer to himself as a talker but he could talk a lot about things he needed to work on and high preference topics. She opined that LPS was a work in progress for Student but found it to be appropriate for him (SE-16; Ms. Sullivan).

33. Ms. Sullivan agreed that Student was anxious, overly dependent on adults and had difficulty communicating his needs (Sullivan). On one occasion, during a session discussing changes to Student’s schedule, he curled into a ball (Simpson). Despite this incident, she opined that Student’s issues with transitions and or schedule changes were not serious enough to warrant avoidance as it was more important for him to be in the right class level. The main focus of her counseling was to help Student feel comfortable and safe. She further noted that in individual counseling they worked on many issues brought by others, not by Student. Ms. Sullivan also explained that LPS also provides social groups and lunch groups (but these groups are formed at the beginning of the school year) and endorsed Student’s participation in one of them for the following school year (Sullivan).

34. Ms. Sullivan testified that when Student started at LPS, he lacked the skills to make friends. Deficits in social skills is a characteristic presented by many of the students at LPS, and she has experience working with students with this profile and with PDD-NOS. In this regard, the health and science classes also offer group discussions that foster social skills development (Sullivan).

35. Student’s spring 2010 MCAS results were Needs Improvement in English Language Arts, and Warning in Mathematics and Science and Technology (SE-20).

36. Art the end of the school year, on graduation day, Student stated to Mr. Simpson: “Thanks for the year. I am not sure that I’ll be back next year” (SE-19; Simpson).

37. A note dated September 23, 2010, containing the names of Christa Abbott, Donna Collins and Maria states that Student had started to ask questions about Illinois at the end of the previous school year. The note also stressed that Student would be living away from home3 (SE-19).

38. On June 22, 2010, Susan Grant, M.Ed., Educational Specialist, wrote to Parents making recommendations regarding Student’s proposed IEP. She made a recommendation to add to Student’s reading goal that he should receive books on tape so that he could listen to the information to increase his comprehension. She also recommended Lindamood Bell Phoneme Sequencing Program, Seeing Stars (which is a follow-up program to LIPS) to be implemented by a trained individual, access to a computer for typing and access to programs such as Co-Writer, Read out Loud, and use of Inspiration to generate graphic organizers. She opined that the written expression goal should add a benchmark for writing at the paragraph level and that the benchmark regarding participation in visualization lessons should be under reading comprehension rather than under written expression. Lastly, she recommended that Student undergo an assistive technology evaluation (SE-25).

39. Ms. Grant had observed Student at LPS on April 6, 2010 during the co-taught language class, the general science and the world history classes (SE-26). Her seven page detailed observation report noted that Student raised his hand and actively participated in the co-taught language class, took a quiz in science, and in world history after reviewing the learning objectives for the lesson.. The report notes that the teachers offered directions, explanations, fostered classroom participation and discussion, provided extra time to answer, offered encouragement, praise, and cued Student when he needed it. Ms. Grant also noted that Student had some difficulty engaging in task discussions with peers when asked to work in cooperative groups (SE-25). Overall she noted that

[Student] definitely is benefiting from the consistent structure during each class and from class to class (teachers use similar formats across the curriculum), from the slower pace and time to process and respond, from individual cueing as needed, from repetition and clarification, and from constructive feedback.

Socially, [Student] still holds back and will need a lot of support to feel confident about reaching out to peers and forming friendships, as well as continued instruction in social pragmatics (SE-25).

Ms. Grant highlighted features in Student’s profile which should be kept in mind by teachers and service providers, such as his diagnosis of dyslexia, and difficulties with handwriting and reading comprehension, and noted that although he “had made incredible progress in regards to his diagnosis of PDD and could be considered high functioning” he still evidenced frustration and rigidity especially with changes to plans and routines. She also stressed the importance of continued counseling, social skills instruction and communication between home and school (SE-25). She concluded by remarking that she had seen much growth in Student since she first met him in preschool and was

Delighted that he [was] placed in a school that is totally geared for students with language based learning disabilities that can offer him truly language based instruction, in small groups, with students with similar learning profiles, and teachers who gear their curriculums and teaching strategies for such students, and who coordinate amongst themselves to maximize consistency and cohesiveness for the students (SE-25).

40. During the summer of 2010, Student participated in LPS’s School Summer Pragmatics Program which met twice per week. There were thirteen students in this program. Student also received individual reading tutoring. Mother testified that by the end of the summer he did not know the names of the other students in the program (SE-19; Mother).

41. An Academic Status Report by Eleanor T. Scudder, Student’s language arts teacher at LPS, dated September 2010, described the student she began teaching in January 2010 as a quiet, shy individual, easily stressed by changes in his daily routine, and appearing to lack self-confidence and self-esteem. He appeared eager to please teachers and peers (SE-14). According to Ms. Scudder, and consistent with her previous progress reports of June 2010, Student made a great deal of progress at LPS. She noted that when he first started in January 2010 he maintained minimal eye-contact, failed to initiate greetings with teachers and peers, evidenced lack of awareness of his classmates, had difficulty ending conversations on preferred topics, was intensely focused on his needs and wants, was unable to adjust to change, was moderately disorganized, with unfamiliar with use of a binder, spoke quickly and unintelligibly and his speech had a monotone vocal quality, did not use strategies for decoding or comprehending text and his writing consisted of basic sentences as he was unable to formulate, dictate or write an organized paragraph. Student was then reading books that were at a mid-third to mid-fourth grade level and his reading was disfluent, void of expression and the pauses and points in the text did not correspond to punctuation (SE-14). Ms. Scudder stated that Student responded well to the organizational strategies used at LPS, including Thinking Maps on which he relied heavily, and by the end of the semester, after learning several decoding and reading comprehension strategies, he was successful working with literature at the mid-fifth grade level for instruction. She also stated that during visualizing and verbalizing lessons, he was engaged and willing to share his thoughts. By the end of the semester he demonstrated ability to:

Make eye-contact and greet his classmates appropriately.

Speak at a pace approaching “typical”, becoming intelligible the majority of the time.

Take conversational turns during literary discussions.

Demonstrate an awareness of and sensitivity to the needs of his peers.

Show flexibility without significant stress.

Use a binder to organize his work.

Utilize “Thinking Maps” and templates for written language.

Utilize several reading strategies to enhance his comprehension of text i.e., Making Connections, Visualizing and Questioning.

Read with improved fluency and expression.

Initiate the use of a text tracking device.

Independently apply learned decoding strategies, i.e., looking at the first two letters of a word, looking for a small known word in a larger unknown work, recognizing endings.

Expand his sentences with adjectives or adverbial phrases, when prompted.

Write a complete paragraph with a moderate degree of support.

Write a multi-paragraph paper and graduation speech with a moderate-high degree of support.

42. Eileen Antalek, Ed.D., evaluated Student on July 10 and July 12, 2010. Her evaluation report noted that that Student had a difficult time on all of the evaluation tasks, but he worked diligently and exhibited good attention to task. She noted that his handwriting was weak due to his dysgraphia. On math tasks, Student required a great deal of repetition and clarification as he had difficulty with the language-based nature of the questions. Dr. Antalek found the results of the evaluation to be valid indicators of Student’s then-current academic performance (PE-U).

43. Regarding Student’s reading skills, Dr. Antalek found Student’s auditory conceptualization skills to fall in the below average range. His rapid naming skills also fell in the very low range. He had difficulty reading quickly when asked to read familiar words. His contextual fluency score fell in the very poor range. When asked to read paragraphs aloud, he sometimes omitted words. Student performed in the below average range in his comprehension which Dr. Atalek attributed to his difficulty reading words and the slow speed at which he read. Although Student could not read all of the words he was presented, he used his “well-developed logic skills in order to reorganized information.” He scored in the below average range in the relational vocabulary section because he could not read individual words well. Student struggled with writing tasks. He performed in the low range, or well below expected grade level when asked to write single words to complete sentences and then to write simple sentences. On the TOWL-4 Student wrote a short, but cohesive, paragraph. Student demonstrated that he could complete a written task with structure and support. Although his spelling skills were exceptionally poor, he used appropriate vocabulary overall (PE-U).

44. Dr. Antalek found math to be an area of relative strength for Student, although he struggled with the language-based nature of higher level mathematics. Student required much of the information to be re-read or clarified, and he was not able to solve problems mentally requiring a pencil and paper to complete tasks. He asked to skip some items because he could not solve the information mentally. Student also had difficulty reading calendars and charts. Overall, in math Student’s output was hampered by weaknesses in symbol recognition and the language-based nature of word problems (PE-U).

45. Dr. Antalek found Student to be bright and capable. She noted a lengthy history of academic difficulties due to dyslexia and learning disabilities in the areas of reading, writing, and mathematics. She also noted a phonological processing disorder that further exacerbated and impeded his progress. She opined that he failed to make any progress in reading and was still reading well below grade-level. According to her, Student could not access the high school level curriculum. He had difficulty with spelling and mechanics of writing, but her then-current testing indicated that with increased structure he was able to perform within expected levels. Although she found Student to be performing below grade level in all academic areas, she opined that in “the proper setting” he could make progress. Dr. Antalek recommended that Student’s educational program address his phonological skills and speech intelligibility (PE-U).

46. Dr. Antalek opined that Student required a small, structured setting that utilized alternative methodologies to Wilson Reading, such as Orton-Gillingham. She recommended that handwriting be taught to him in an integrated fashion, tied to spelling and reading. She recommended that social communication and speech intelligibility be addressed to improve Student’s confidence. In her opinion, given Student’s age and stage of education, he required a program that could fully address his specific needs. Specifically, she concluded that Brehm Academy was most likely to find success in helping Student make academic progress (PE-U).

47. In Dr. Antalek’s evaluation report of the summer of 2010, she mentioned that Student had been in crisis since March 2010, but her report of LPS observation made no mention of said crisis because the “crisis” behaviors were reported to have occurred at home, and she did not observe any crisis at LPS (PE-U479).

48. Christa Abbott, M.Ed., evaluated Student on July 19, 2010. Her report makes reference to her previous assessments of Student conducted on December 16, 2005 and February 28, 2006. She holds a Masters degree in reading education from the University of Virginia, and although she is not certified in Wilson or Orton-Gillingham, she is familiar with both methodologies. Her report of July 2010 indicated that she first worked with Student in 2005-2006 when he was in the fourth grade and again provided tutoring to him during the summers of 2009 and 2010. She administered assessments from the QRI III and Developmental Spelling Assessment on the aforementioned dates (PE-W).

49. According to Ms. Abbott, Student has made gains in spelling and word recognition in context, but his comprehension has not improved. She also noted that “it was not quantitatively assessed, but from [her] own observations of writing samples from current work and from fourth grade, there has been little improvement in his writing skills.” She recommended that Student receive specific reading instruction “from a professional with a master’s degree specifically in reading instruction or speech and language pathology with specific training in phonological awareness, and not just a professional with a special education background.” She suggested that he receive services three times per week, in a one-to-one setting, for fifty minutes per session. Ms. Abbott opined that the Wilson program had been overemphasized with Student. She stated that

Literacy development happens like the assemblage of a braid, with the strands of reading, writing, and spelling acting in concert to strengthen one another, and [Student]’s instruction needs to reflect this (PE-W).

Ms. Abbott did not recommend a specific program in this report, but stressed that Student should work with a highly trained reading professional who could “adapt to [Student]’s needs and follow best practices as set forth by the current body of research” (PE-W).

50. On August 2, 2010, Parents wrote to Marlborough accepting in part and rejecting in part the proposed IEP covering the period from April 16, 2010 through April 15, 2011 (this IEP had been received by them on July 19, 2010 (SE-15).) The rejection contains a three page letter detailing numerous, specific modifications and/ or additions involving methodology, accommodations, goals, monthly consultation with Parents, and summer programming. Parents’ requests were consistent with the recommendations of Ms. Abbott and Dr. Antalek (SE-15).

51. Also in August 2010, Mother and Student visited Brehm, in Illinois (Mother).

52. On September 3, 2010, Parents’/ Student’s attorney sent a letter to Marlborough’s Superintendent of Schools informing him that Parents had partially rejected the most recent IEP in August 2010, and specifically rejected placement at LPS, and requested convening of the Team within ten (10) business days pursuant to the terms of the Settlement Agreement of January 2010. The letter also notified Marlborough of Parents’ decision to place Student unilaterally in a private, residential program and that Parents sought reimbursement for the cost of the placement. The letter was forwarded to Ned Pratt, Director of Pupil Personnel Services in Marlborough, who responded to Parents’ attorney on September 3, 2011 (SE-12). Thereafter, Mr. Pratt attempted to convene the Team in September 2010 but neither Parents nor Dr. Antalek were available (Pratt).

53. Neither in 2010 nor at any time thereafter, did Parents explore any other private placements in Massachusetts or New England (Mother).

54. Student started school at Brehm in the second full week of September 2010, and was still receiving his education at Brehm at the time of the hearing in May 2011. Mother testified that Student cannot fly back and forth by himself because of the difficulties getting through security given his sensory integrations issues. Also if there are delays, these could pose a problem so she flies out with him (Mother).

55. Dr. Richard Collins, Director at Brehm, testified that in the beginning, Student demonstrated a great deal of anxiety, was fearful, emotionally fragile, lacking in pragmatic social skills, was standoffish and had to be coaxed into participating in activities. He was isolated, withdrawn, afraid to try things, and did not want to take risks on or off-campus, with off-campus situations creating higher anxiety (Collins). Student had difficulties participating in class and getting up to go to the board. He needed to be pushed to get out of his room and participate in activities (Jansiewicz). He also demonstrated difficulty orienting to space. Student would refuse to participate, would go into “shut-down mode”, and remove himself from the situation. He did not engage in large groups and never volunteered in the Campus Forums held on Wednesdays. Student however, was not referred for counseling which is offered off campus and is available on an “as needed” basis (Collins, Brown).

56. Student had a great deal of difficulty getting used to experiences such as dorm living and dorm parents. When Student first arrived on campus, he had a room by himself. He then had a roommate but things did not go well, and soon thereafter, Student asked to have a room by himself again. According to Ms. Appiah-Kubi, his speech and language pathologist for the first school semester, these changes did not appear to cause great distress to Student because at the time of the changes, Student was not having much interaction with his peers. Student considered other students in the dorm rowdy and preferred to keep to himself. Student did not appear upset or excited about these changes (Appiah-Kubi, Jansiewicz). Dr. Brown opined that at times, Student’s perception was not totally accurate. He gets frustrated when he thinks that he is not being understood (Brown).

57. Student was cooperative and through games, he slowly started to get involved in activities. As his confidence and pragmatic skills improved, with the use of sound-bites, and practice, he began to emerge (Collins, Appiah-Kubi). By the end of the 2010-2011 school year he was seen playing football for the first time with approximately twelve other students, supervised by the recreation staff (Collins).

58. Richard Collins, Director of Brehm since 1989, holds a PhD in special education. He was co-founder of Dearborn School and sits on the board of The Chamberlain School, in Massachusetts. He testified that Brehm was an approved special education school in Illinois for behavioral and educational disorders. All of the teachers in the program hold proper Illinois certification in their content area and most of the staff is certified in special education (some teachers are in the process of obtaining their certification and two others are in graduate programs). The school has five speech and language pathologists (master’s level, approved by ASHA), a PhD psychologist, and six PhD level psychologists off campus doing their graduate clinical training, who work with the students. The recreation staff, dorm parents and tutors hold associates or bachelors degrees for the most part, and undergo a two week orientation at the beginning of the year. Thereafter, they participate in ongoing training throughout the year (Collins).

59. Student’s math instructor lacks certification in special education. She is supervised by Terry Douglas through a consultative model, and in class supervision. Similarly, the recreation staff and dorm parents are not certified in special education (Collins).

60. There are ninety students from around the world in Brehm’s High School program. All children are looked at holistically, taking into account their academic, social and emotional needs and are placed according to their strengths and weaknesses in standard, modified or remedial classes. The school issues a laptop computer to all of its students, and evaluates and trains all students in assistive technology (Collins).

61. Dr. Collins was familiar with the MCAS but testified that students at Brehm were not required to take them; Brehm offered an equivalent test. Science and other academic courses were provided depending on where the student came from and what they needed (Collins).

62. According to Dr. Collins, social skills training is addressed in the context of the dorm, classroom, and during unstructured activities time. If the student’s social skills needs are great they participate in a social club. Students participate in a campus forum every Wednesday which cover a variety of topics such as boy codes, bullying, etc. (Collins).

63. Dr. Brian Brown is the director of the boarding portion of the program at Brehm and supervises Teresa Miller, the Director of residential boarding life, who in turn supervises the staff. Ms. Miller holds a Masters degree and Dr. Brown holds an MSW, and has a PhD in educational psychology and counseling. He is a licensed social worker and is also school certified. He also supervises Pam Altman, who holds an MSW and works as supervisor of boarding services and works directly with dorm staff some evenings, and across the day with the recreation staff and students. John Barnes is also an MSW who works as a school counselor providing direct intervention and processing with students. Dr. Brown is at Brehm Monday through Friday from 6:30 a.m. to 4:30 or 5:00 p.m. (Brown).

64. Dr. Brown opined that it took Student

… a great deal of time to develop trust in his relationships. This year has been one of laying a foundation of trust in relationships and understanding of the systems and the structures of the programming and gaining a level of comfortableness (Brown).

Student benefits most effectively from “in the moment interventions” according to Dr. Brown, who also opined that individual counseling was not beneficial to Student at this time because of his lack of self-reflection and insight. Group activities, in Dr. Brown’s opinion, were more beneficial to develop social skills (Brown).

65. Student’s schedule at Brehm is as follow:

6:30 to 6:45 a.m. – Students wake-up.

7:00 to 7:10 a.m. – Breakfast served family-style, room
cleaning.

7:45 a.m. – The nurse goes around the dorms and
dispenses medications.

8:00 a.m. – Students leave the dorm.

8:15 a.m. – The academic day starts with each teacher
responsible for four or five students

8:30 a.m. to 12:15 p.m. – There are four academic periods in the
morning followed by a 45 minute lunch.

12:15 to 12:40 p.m. – Students leave the dinning room and have
leisure time during which teachers are also available to provide help.

12:40 to 3:15 p.m. – Three more academic periods and a check in
with the academic advisor for organization.

3:30 to 5:00 p.m. – Recreation program during which students
choose to participate in two clubs twice per

week and

5:00 p.m. – Students return to the dorms and do their
chores.

5:15 p.m. – Half of the campus goes to dinner4 .

5:45 p.m. – Half of the campus goes to dinner. After
dinner students have free time that can be used to complete their chores.

7:00 to 9:00 p.m.– Structured study hall in small group or
independent study supervised by the tutors

and dorm parents.

9:00 to 9:30 p.m. – Free time; students can snack, be on campus,
play video games, etc.

9:30 p.m. – Students report back to the dorms and get
ready for bed.

10:00 p.m. – Lights out.

On weekends, students are allowed to sleep in until 9:00 a.m., and their curfew at night is 11:00 p.m. Every student participates in a six level tier system to earn on and off campus privileges. Student is at level five in the tier system. A buddy-system is used when students access the community. There are approximately twelve to sixteen students in each dorm. At his request, Student is in a room by himself as he had issues with previous roommates (Collins, Brown, Appiah-Kubi, Jansiewicz).

66. Marian Appiah-Kubi, M.S., CCC-SLP, speech language pathologist at Brehm, evaluated Student on September 15, 16, and 21, 2010, to obtain qualitative and quantitative measures of his then current functioning in the areas of social/pragmatic language, reading comprehension and critical thinking. She administered the Comprehensive Assessment of Spoken Language (CASL), Supralinguistic Index; The Listening Comprehension Test Adolescent Double Interview; and an Informal Reading Assessment (adapted from the Critical Reading Inventory) (PE-GG; Appiah-Kubi). Ms. Appiah-Kubi is trained in Lindamood Bell. She provided Student small group and individual pragmatic language therapy through December 2010 (Collins, Appiah-Kubi).

67. Ms. Appiah-Kubi reported that Student’s CASL scores ranged from poor or significantly below average on the Inference subtest to the average range on the Nonliteral Language and Ambiguous Sentences subtests. The scores suggest that while comprehending some forms of abstract language is generally manageable for Student, it may be difficult for him to “read between the lines,” or “take a hint” in social situations. During the Double Interview subtest Student “struggled to generate meaningful questions to ask this examiner and to engage jointly with her in perusing the social pictures she shared with him.” Student also demonstrated difficulty maintaining appropriate eye contact, expressing questions and comments to maintain conversational topics satisfyingly, and expressing his thoughts fluently and clearly. On the Listening Comprehension Test Student scored in the below average range in all areas except for one subtest relating to reasoning in which he scored in the average range. His vocabulary and semantic knowledge were especially weak areas. On the Informal Reading Assessment, testing was discontinued due to the level of stress it appeared to cause for Student. Toward the end of the first of the three passages administered, Student reported feeling sharp chest pains that he said were restricting his ability to breathe. Ms. Appiah-Kubi testified that Student looked really uncomfortable so she stopped the test and she took him to the school nurse (PE-GG). Dr. Jansiewicz testified that this type of reaction in Student was a sign that he was becoming very anxious. She typically handles this type of reaction by giving students a bathroom break (Jansiewicz).

68. Ms. Appiah-Kubi concluded that Student has current challenges with several social/pragmatic language skills, comprehension, and critical thinking skills. She stated that those areas would be among those targeted for remediation in individual speech and language, and small group speech and language sessions three times per week (PE-GG). She testified that at the end of December 2010, Students goals in this area had remained the same because Student had not achieved all of his goals due to the numerous areas of need evidenced by him. She opined that he had made moderate progress (Appiah-Kubi).

69. Ms. Appiah-Kubi testified that she is certified in Orton-Gillingham, received Lindamood Bell training in 2007 but is not certified in it, that she has not received training in LIPS but was familiar with it and did not use it with Student. Ms. Appiah-Kubi was not familiar with MCAS (Appiah-Kubi).

70. Ms. Appiah-Kubi left Brehm in December 2010 and a few days prior to her replacement, Megan Buyer, was identified (Appiah-Kubi).

71. In addition to the speech and language services, Ms. Appiah-Kubi and Ms. Buyer were responsible for the advisement services to Student, which Ms. Appiah-Kubi interpreted to be similar to counseling. Neither Ms. Appiah-Kubi nor Ms. Buyer is a licensed counselor. Ms. Appiah-Kubi testified that her regular hours on campus were from 8:00a.m. to 4:15 p.m. Monday to Friday (Appiah-Kubi).

72. Student’s phonological issues were being addressed by Ms. Barbara Lawrence (Appiah-Kubi). She is an Illinois certified special education teacher Kindergarten through twelfth grade. (Lawrence). She is trained, not certified, in Lindamood Bell methodology, Lindamood Bell Verbalizing and Visualizing , Fast Forward Reading, Brain Research, Seeing Stars, Wilson Reading System, and Reading Coach Gold. She is also not certified as a reading specialist. She teaches Student language arts, reading, reading comprehension, decoding and writing skills, five days per week with three other students (Lawrence). In order to receive his speech and language services at Brehm, he is pulled out of physical education and visual arts (PE-EE610; Rosoff).

73. Ms. Lawrence conducted a screening of Student at the beginning of the year to see where his abilities were and repeated the evaluation at the end of the year, noting improvement in his reading of simple words with more than one syllable, awareness and ability to self-correct, and spelling. She testified that in terms of methodologies used with Student, she used Lindamood Bell Phonological Sequencing System, WADE, and LIPS, in a group situation (not one-to-one), in combination with Wilson Reading and Brehm’s own color coding techniques. In terms of assistive technology, students use their Apple computers, which contain programs like Pages that corrects grammar and reads back to students, and Inspiration and Kurzweil 3000, which helps Student make sense of what he reads. She received her Kurzweil instruction from the technology department at Brehm. Ms. Lawrence found that with Student, Mind Mapping to help organize his ideas was key (Lawrence).

74. Ms. Lawrence testified that she does not assign much homework to Student as she prefers to see what he is doing, and because it was difficult to expect the dorm parent to understand how to help him. Student still needs prompting as he is not able to independently complete tasks. Homework assigned, if any, involves just reading (Lawrence).

75. Upon receiving Parents’ letter regarding their unilateral placement of Student, Marlborough attempted to convene the Team on or about September 17, 2010. According to Mother, Dr. Antelek was not available on that day (Mother). This day also coincided with Parent’s travel to Illinois to take Student to Brehm. Additional dates were provided to Parents and on October 14, 2010, Student’s Marlborough Team reconvened to discuss the result of Student’s 2010 evaluations, Student’s progress, as well as the proposed program and placement. Present at the meeting were the Parties’ attorneys, Nett Pratt Director of Pupil Services at LPS; Nancy Rossof, Director at LPS; Stacie Galvin, Marlborough School Psychologist and Team Chair; Parents; Dr. Eileen Antalek, Consultant; Christa Abbott, private reading specialist; and the following individuals from Brehm participated via telephone conference call: Terri Douglas, Coordinator of Educational Services, Marian Appiah-Kubi, Speech and Language Pathologist, Dr. Brian Brown, Associate Director, and Donna Collins Director of Admissions (SE-8). The meeting lasted approximately three hours and Brehm personnel was given ample time to explain their program (Rosoff, Antalek). Dr. Antalek testified that she felt badly during the meeting because it felt to her like Ms. Rosoff was being put on trial (Antalek).

76. Following the Team meeting, on October 25, 2010, Marlborough forwarded the proposed IEP to Parents, calling for placement of Student at LPS for the remainder of his ninth grade year. This IEP identified Student’s areas of need to be communication, and social/emotional needs. It lists numerous accommodations and includes goals for communication, reading comprehension, written expression, mathematics, social/ emotional needs, and organization/ work skills. At LPS he would receive: two, forty-eight minute sessions each of speech and language services on a pull out basis with the speech and language therapist; two, forty-eight minutes each speech and language Sessions in a “ co-taught push in basis” with the speech and language therapist; ten, forty eight minutes each history/literature language sessions with the history/literature teacher; five, forty-eight minutes each reading /language arts sessions with the language arts teacher; five, forty-eight minutes each science class with the science teacher; eight, forty-eight minutes each organization/work skills with the pre-vocational staff; five, forty-eight minutes each math with the math teacher; once per week, forty-eight minute counseling session with the counselor; and from September 2010 through April 2011 student would receive seven, forty-eight minutes each organization/work skills sessions with the pre-vocational staff, and a once per week, forty-eight minute long health and student issues session with the counselor (SE-8).

77. The Additional Information portion of this IEP states that Student requires “access to a counselor at any time on an as needed basis” and the counselor will check in with Student during times involving transitions, such as at the beginning of school, after vacations, etc. This section also provides access to a summer program that focuses on pragmatic skills/ language and academics, and specifically calls for Student to participate in LPS’s two week Summer Pragmatics Program and calls for individual reading tutorial in the summer. The Team also recommended that Student be given an Assistive Technology Assessment (SE-8).

78. Parents’ vision statement for Student in this IEP states, in pertinent part

Our vision for [Student] is that he will develop independent learning skills, effective communication skills, and deepened self-confidence. While learning to read and write as well as to communicate effectively and intelligently, we want [Student] to develop these skills without losing his personality or creativity. [Student] has a great sense of humor and is a hard worker who “thinks outside the box”, a skill that we also want to see him develop. Our vision for him is that as [Student] reaches his full potential , he will understand how gifted, talented, and creative he is. We want [Student] to realize his giftedness and talent, to encourage the development of this, and we want him to see that he has great potential, which will be developed. Given the right learning environment, [Student’s] self-esteem will blossom, and his creativity, great sense of humor, and hard work ethic will emerge. We want to help move him towards skills that will enable him to pursue college (SE-8). (Emphasis supplied).

79. The Narrative Description of School District Proposal section of this IEP states that Marlborough continued to recommend the IEP and placement proposed in April 2010, calling for Student’s IEP to be implemented at LPS. In making this recommendation, Marlborough relied on the representations made by the LPS representative, Nancy Rosoff, who stated that Student could be educated and make effective progress at that placement which in her opinion constitutes the least restrictive placement in which he can receive a FAPE. This determination also contemplated observations, input from teachers and specialists, informal assessments and the psychoeducational evaluation by Dr. Antalek of July 2010 (which was discussed at the Team meeting), and Student’s progress. The IEP further states

The question was asked about [Student] receiving Lindamood Bell services. A speech-language pathologist who is employed at LPS has a certification in Lindamood Bell. This speech-language pathologist is available to evaluate [Student’s] needs to specifically determine if the Lindamood Bell program is the most beneficial program for him. If the results of the evaluation determine that he would benefit most from this service, it will be added to his IEP.

LPS uses Kurzweil and their intent is to informally evaluate [Student] to investigate if he requires this type of program. If it is determined that [Student] needs this type of program, it will be added to his IEP (SE-8).

80. Ms. Rosoff testified that Student would have used Kurzweil during the 2010-2011 school year, and that they were formulating a lunch group for him and another student. This information was shared at the October Team meeting. She also testified that Student could have participated in one of the forty-two possible activities available after-school (Rosoff, Scudder). Lastly, she testified that if the speech and language pathologist recommended it, they would also offer Student LIPS (Rosoff).

81. Ms Rosoff testified that once having left the program, in order to be re-admitted it is LPS’ policy to have Student and Parents work with Dr. Shim, the psychologist, because in order to achieve success, Parents and Student had to “buy into” the program to feel emotional comfort with LPS (Rosoff).

82. Ned Pratt, Administrator of Special Education, Marlborough, testified that he relied on the reports of Ms. Rosoff and the LPS staff to ascertain whether Student was making progress, and as to whether Student required a more restrictive setting. His previous experience with LPS was that its personnel was very clear when a student was making progress and when he was not. LPS was clear that it was the appropriate setting for Student, who did not require residential placement, and that he was making effective progress in their program. Mr. Pratt also relied on the settlement agreement of January 2010, and as such, there was no need to investigate additional placements for Student. Regarding re-evaluations, Mr. Pratt testified that Student was not due for his three-year re-evaluation, and he had already been evaluated independently in 2008, 2009 and 2010 (Pratt).

83. Eileen Antalek, holds a PhD in education. She is licensed in Massachusetts as a school psychologist. She has no background and holds no certification in reading or as a speech pathologist. At Parents’ request, she conducted an evaluation in 2009 and in the summer of 2010. Pursuant to the July 2010 testing, Student had not shown regression but he also demonstrated no gains, in her opinion (Antalek).

84. Dr. Antalek considers herself an expert on placements for disabled students and visits between twenty-five and fifty schools nationwide. She visited Brehm in the summer of 2009 and recommended this placement to Parents as she believed that this would be the most effective and appropriate placement for Student. Since 2009, she has not supported LPS as she did not believe that it was appropriate for Student because LPS could not adapt the program to individualize it sufficiently for Student. Dr. Antalek testified that prior to her observation of Student at LPS in April 2010, she was already convinced that Student needed to be at Brehm. In her opinion Student’s phonological speech disorder was amongst the worse she had seen. She had read Susan Grant’s reports and agreed with Ms. Grant’s recommendation, which Dr. Antalek stressed several times, that Student required Lindamood Bell LIPS, or something like it. She testified that the Wilson Reading program was insufficient to address phonological processing disorders. She also opined that Student required residential programming because he had depended so much on the adults around him to be his communicators/ translators that he became fairly co-dependent. Boarding school would allow him to explore relationships in a way he had not experienced previously within a structured supported environment, especially in regards to peer interactions and taking care of himself (Antalek).

85. Dr. Antalek met with Student in December 2010. Prior to the Hearing, Dr. Antalek spoke with Brian Brown whom she understood to be Student’s counselor at Brehm, and also to Richard Collins and another staff, who reported that Student had made good progress but that he had some difficulties, including dorm life, which required Dr. Antalek and Parents to make several phone calls to “iron things out”. At Brehm Student also underwent some staff changes including as noted above, change in the speech and language pathologist mid-year. Overall, Dr. Antalek continued to support placement at Brehm and opined that it was important that Student continued with the same methodologies he had been given at Brehm, which should continue through Brehm’s summer program. It was her understanding that the speech and language pathologist at Brehm was trained and certified in LIPS, however, Ms. Appiah-Kubi, testified that while she had done some training several years back she was not certified in this methodology. After several months at Brehm, Dr. Antalek found Student to be a different child, including that he was chattier, and she could understand almost everything he said (Antalek).

86. A October 14, 2010, letter by Parents conveys Parents’ dissatisfaction with Marlborough and with LPS. The letter also provides Parents’ impression of Student’s then current abilities and states that in their opinion,

The failure of LPS to provide [Student] with an appropriate education constitutes a Failure of Consideration for the Settlement Agreement signed in January 2010 (SE-9).

87. Parents rejected the October 2010 IEP (program and placement) offered by Marlborough on November 22, 2010 (SE-8).

88. Dr. Eva Jansiewicz, neuropsychologist (PE-004), who had evaluated Student with Dr. Castro in 2008 during her post-doctoral fellowship, saw him next during an observation at Brehm on February 14, 2011 (PE-VV945). She testified that Dr. Castro weighed in heavily during her evaluation in 2008 because she was then a student. She has observed LPS and supported this type of placement in her recommendations back in 2008, but never observed Student at LPS or spoke to any of his teachers. Dr. Jansiewicz testified that given the legal situation between the Parties she did not think it appropriate to discuss Student with his LPS teachers/ service providers (Jansiewicz). Instead, she relied on the reports and observations made by other individuals.

89. At Brehm, Dr. Jansiewicz observed Student in a variety of settings and noted that as of February 2011, he was still directing most of his verbal interaction to teachers/ adults. He was able to navigate the campus on his own. During a conversation with Student he remarked that he was at Brehm to learn, not to socialize and recognized that he had difficulty initiating and maintaining conversation with peers but noted that he was able to put more sentences together at a time than he was able to do in 2008. Student reported to her that he liked his classes, watching TV shows and the activities after classes (Jansiewicz).

90. Dr. Jansiewicz opined that Student required twice per week, one-to-one speech and language services to address speech articulation issues and also social pragmatics in a variety of settings, with opportunities to generalize throughout the day, and more intensive reading services. She also espoused LIPS but did not observe this methodology being used at Brehm and did not observe Student in many academic classes, in counseling or one-to-one reading (Jansiewicz).

91. At Brehm, students use the school wide communication model which encourages Students to use the “I feel…because…I want or need…” to solve problems (Jansiewicz). Conflict resolution is part of the social skills training at Brehm (Lawrence). Over a period of time Student learned to use this model to address issues with peers who were teasing him and to request a room of his own. Dr. Jansiewicz found Student’s speech easier to understand as there was less of a nasal quality to it, but did not think that he had met his potential. She explained that when Student became upset he could present as rigid and withdrawn (PE-VV945; Jansiewicz). Dr. Jansiewicz was unaware of Student’s personnel and schedule changes at Brehm. She however, was aware that during an oral reading testing at Brehm with Ms. Appiah-Kubi, Student began to experience a stomach-ache, became upset and wanted to stop. Dr. Jansiewicz testified that this was a sign that Student was very anxious. Dr. Jansiewicz did not know if Student had any particular friend or acquaintance at Brehm as she did not discuss this with him (Jansiewicz).

92. Dr. Jansiewicz visited LPS on May 6, 2011 to conduct a school observation at Parents’ request. Her report, dated May 12, 2011,summarized her observations of three classes and her conversation with Cynthia Manning, Vice Principal of LPS and Jennifer Collado, Educational Team Leader, regarding the educational model at LPS. She did not discuss Student’s time at LPS with anybody at the school because of the pending hearing (PE-VV, Jansiewicz).

93. Dr. Jansiewicz observed a world history II class with a ratio of one teacher to eight students and wrote a detailed description of the various activities. She described a review of events that happened on that day in history during which the teacher asked questions to help students relate the events to their own experiences and questions to help them reason through the events. She described another activity interpreting a comic about Osama Bin Laden’s recent death. The teacher ensured that students understood the words used in the cartoon and explained the symbolism of the cartoon. The class then discussed an article regarding releasing photographs of Bin Laden. The teacher helped students to sound out difficult words and explained words students did not know. He also asked comprehension questions. As as noted by Dr. Jansiewicz, the questions engaged the students in critical thinking. At the conclusion of the article the teacher took a poll of the students to determine their opinions about releasing the photos. The class then used a “tree map” to analyze the content of the article and the teacher called on all students for responses during this activity. The class ended with a “basketball game” during which students were divided into teams and got points for answering questions about current events. Students were enthusiastic and engaged in this activity and all students were called upon to answer questions (PE-VV, Jansiewicz).

94. The literature class observed by Dr. Jansiewicz began with a lesson about idioms and helping students to come up with examples of idioms. The students worked on an activity sheet covering idioms used in the Diary of Anne Frank . Dr. Jansiewicz noted that when a student asked a question about the idiom in one passage the teacher provided her with the answer instead of asking the student to find the answer in the passage. When students had difficulty reading words from passages the teacher helped them to decode by prompting them, providing phonemic cues, or reading the word to the student. Dr. Jansiewicz opined that

Unfortunately, the reduced use of visual and kinesthetic examples and [teacher]’s tendency to provide answers for the students reduced the possibility for the students to have a more active learning experience that is recommended for children with significant language learning challenges to help them better learn and process information (PE-VV).

The literature class then worked on a series of “Double Bubble Thinking Maps” where students filled out necessary information along with the teacher. Dr. Jansiewicz criticized the teacher for writing the single possessive “German’s” repeatedly in the bubbles rather than “Germans,” the plural that was used in the text. She then noted that the teacher “finally” integrated visual methods into the lesson by instructing the students to close their eyes and think of the idiom and explain what they saw. Dr. Jansiewicz again criticized the teacher for switching from an open-ended to close- ended question and then providing the answer because it “reduced the possibility of a more independent learning experience for the students” (PE-VV).

95. Dr. Jansiewicz then observed a biology class with one teacher and nine students. The biology teacher wrote some vocabulary words on the board and cued students to remember their definitions. She then had students repeat words aloud to reinforce them. Students reviewed their “chapter packets” and MCAS questions during class. They reviewed a vocabulary assignment and the teacher broke down words for students. She also pointed them to a diagram she had drawn on the board to assist them and to a “food web.” They then studied a similar food web in their MCAS packet. When students were not able to answer a science question the teacher used a real life example to illustrate the concept. She used the remaining time in class to ask students review questions (PE-VV).

96. Dr. Jansiewicz concluded that there were several elements of the program that would be appropriate for Student. She noted that she observed good language-based instruction in most classes, using multi-modal methods, a specific focus on vocabulary, and a strong effort to use context and students’ experiences to allow for a more effective learning experience. She also noted elements to maintain a high level of structure to assist students in learning. She noted that all classes have the same format during the first five minutes, followed by academic content. She also noted that teachers spent the last five minutes ensuring students had written down their homework assignments. She noted the organization of the binders being structured and the use of Thinking Maps and the Empower method across classes to assist students in organizing content. She also noted that the Work Study program may be appropriate for serving Student’s vocational needs (PE-VV).

97. Dr. Jansiewicz opined that LPS was not a theoretical possible placement for Student that had never been attempted. She noted that Student attended Learning Prep for eight months in 2010 and that Parents determined that the placement was not working for him. She noted that Student had told her there were too many schedule changes during his attendance which had been a problem for him. Given Student’s prior experience at LPS, Dr. Jansiewicz reported that she paid particular attention to these factors to ascertain if such factors had remained the same or changed since Student’s attendance. She noted that Learning Prep places students in homogeneous groups. Thus, changes to groups and schedules could occur during the school year when a student required a different academic level of instruction. Next, Dr. Jansiewicz considered emotional and social support and noted that LPS provides a number of emotional supports including weekly individual counseling focusing on a number of factors, and communication between teachers and counselors around any issues that arise, as well as regular meetings between the staff working with each student. She noted LPS’s zero tolerance policy for teasing and bullying which ensured a safe emotional environment for all students. She noted the availability of social pragmatic assistance and two classes involving social pragmatics that were team taught with a speech language pathologist. Social activities were organized on the weekends and an after-school program offered academic and social opportunities. Relying on the reports of emotional deterioration by Parents and other professionals, Dr. Jansiewicz opined that the supports were not sufficient to maintain Student’s emotional well-being and advance his social functioning (PE-VV).

98. In contrast, Dr. Jansiewicz reported that at Brehm Student had not experienced schedule changes and the level of emotional and social support offered to all students was higher than that offered at LPS and included a comprehensive system of social and emotional support as described in her observation report of Brehm (PE-VV; Jansiewicz). She stated that as of the time of her visit to Brehm, Student was emotionally stable, and without emotional deterioration, indicating that he was “coming out of his shell”, beginning to self-advocate, and forming some relationships with other students; this is indication to her that Student’s emotional functioning had improved compared to previous parental reports. She concluded that “the higher level of support provided at Brehm” was necessary to maintain Student’s emotional and social well-being and noted that he continued to require a higher level of social support and prompting to engage in social interactions with peers and to choose less solitary activities outside of the dorm and his room where he still spent much time. She recommended continued placement at Brehm (PE-VV; Jansiewicz).

99. Regarding LPS’/Marlborough’s IEP, Dr. Jansiewicz opined that an additional speech and language class per week that focused on articulation, expressive language and social skills was needed; that one-to-one reading instruction to address encoding, decoding and phonological issues should be added; and that a social skills group should also be added. Overall, Student required an intensive, multi-modal, language-based, small group program, his services should be delivered by a certified speech and language pathologist, a reading specialist and his classes should be taught by special educators. Dr. Jansiewicz is not certified in Massachusetts as a special education teacher and she possessed no training or certification as a speech and language pathologist (Jansiewicz).

100. Dr. Rafael Castro, neuropsychologist, collaborated on the evaluation performed by Dr. Jansiewicz in 2008 and with a different Post-doctoral fellow, Rebecca-Tubbs, in 2009. The 2009 evaluation mentioned that Student had made gains in social interactions, reciprocal conversation but he was not yet generalizing these skills. According to Dr. Castro, when he first met Student, the PDD symptomatology was more prominent but the language-based issues became more prevalent in 2008-2009, with delays in the acquisition of reading and writing and executive control issues. Also, speech intelligibility was an issue as it played a role in communication and impacted Student’s social skills. Both the 2008 and the 2009 evaluations recommended a LPS type program for Student, and neither evaluation recommended residential placement. Based on the reports and information provided by Parents regarding LPS and Brehm, Dr. Castro supported placement at Brehm for Student. He did not speak with Ms. Rosoff at LPS nor observe Student at LPS or Brehm (PE-F217; PE-C99; Castro).

101. Dr. Castro testified that five months at LPS (along with a summer program) was too brief a period of time to be used as an indicator of the success of a program for Student, and instead stated that one would need at least two years to ascertain if the interventions were working (Castro). It would take at least two years for a child like Student to buy into a program (Rosoff).

102. During a Pre-Hearing Conference on March 22, 2011, Parents’ request to observe LPS and Marlborough’s request to observe Student when he visited Parents in Massachusetts in April 2011 were discussed. Parents agreed that the observation could take place and Marlborough forwarded a consent form to them. Parents did not sign the consent form because it included terms with which they were not in agreement and their counsel was unavailable for discussion. Specifically, the consent form called for open communication and exchange of information and records between Marlborough representatives and outside schools or agencies as well as consent for an observation of Student in the home. This section of the observation specifically stated

This includes observation in the classroom or other social situations. Observation to include any contracted service provider of MPS for the purpose of improving educational programming (SE-2).

Parents did not forward any type of consent, limited or otherwise, to Marlborough and the observation did not take place (SE-1; SE-2). Additionally, during the Pre-Hearing Conference, the Parties agreed that convening of the Team would be postponed until the Decision in this matter was available. Parents opted not to Amend the Hearing Request to include the IEP covering the period from 2011-2012 as an IEP would not yet be available.5

103. Parents testified that they had noticed great improvement in Student after almost one year at Brehm. He was reading a book on his own; initiated conversation with adults and one cousin; referred to another student at Brehm as a friend and his speech was more intelligible (Mother, Father). He made one friend in the “gaming club” and went bowling off campus. According to Dr. Collins, Student’s first year at Brehm was very difficult and required a lot of fortitude on Student’s part (Collins). By May 2011, he was able to initiate conversation and was able to connect with some peers, although the relationships are in the initial stages and are driven by activities (Brown).

104. Ms. Rosoff described Parents as protective individuals who did not want to make life hurtful for Student. It was her opinion that Student needed to learn how to handle change, not avoid it (Rosoff).

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 Act6 (IDEA) and the state special education statute.7 As such, Student is entitled to a free, appropriate public education (FAPE).8 They also agree as to the types of disabilities presented by Student as described in the Facts section of this decision.

The dispute between the Parties is centered on the appropriateness of the IEP and services offered by Marlborough following Student’s enrollment at LPS, and specifically from April 2010 through April 15, 2011, the expiration date on his most recent IEP; and, whether Parents were justified in placing Student at Brehm in September 2010, through April 2011.9 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 statutes, mandate that school districts offer eligible students a FAPE. A FAPE requires that a student’s individualized education program (IEP) be tailored to address the student’s unique needs10 in a way reasonably calculated to enable the student to make meaningful11 and effective12 educational progress. Additionally, said program and services must be delivered in the least restrictive environment appropriate to meet the student’s needs.13 Under the aforementioned standards, public schools must offer eligible students a s pecial education program and services specifically designed for each student so as to develop that particular individual’s educational potential .14 Educational progress is then measured in relation to the potential of the particular student.15 School districts are responsible to offer students programs and services that will allow them to make meaningful, effective progress.16

As the party challenging the adequacy of Student’s IEP and seeking public funding for their unilateral placement, Parents carry the burden of persuasion and must prove their case by a preponderance of the evidence. Also, if the evidence is closely balanced, the moving party, that is, Parents, lose. Schaffer v . Weast , 126 S.Ct. 528 (2005)17 .

In the instant case the evidence is persuasive that the IEP proffered by Marlborough calling for a day placement at LPS was sufficient to afford Student a FAPE. As such, I find that Parents have failed to meet their burden of persuasion pursuant to Shaffer , and are therefore, not entitled to reimbursement for their unilateral placement of Student at Brehm. My reasoning follows:

I. Marlborough’s April 2010 through April 2011 IEP:

At issue is whether the April 2010 through April 2011IEP offered by Marlborough, calling for placement at LPS, was reasonably calculated to provide Student a FAPE in the least restrictive setting.

In evaluating the appropriateness of this IEP, I turn to the information available to the Team at the time this IEP was promulgated in April 2010. I also evaluate the additional information available to the Team when it re-convened to review Parents’ independent evaluation results in the fall of 2010, as well as the history between the Parties to that point. 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). Marlborough is therefore, not required to offer Student the best program possible but rather, a program tailored to meet Student’s unique needs so as to enable him to make effective and meaningful educational progress (with respect to the statutory goal of allowing him to become an independent productive adult.) It is uncontested that Student possesses solidly average cognitive ability as demonstrated through the numerous evaluations performed over the years. He is a complex individual who, in spite of his disabilities, presents with many strengths. His weaknesses are well-known since prior to his placement at LPS, and his needs persist to date in the same areas. Student has been described as a cooperative individual who tries his best and works very hard in his academics as he likes to be perceived as a smart person (Mother, Antalek).

LPS is a Massachusetts-approved, special education school that serves children with language-based learning disabilities and PDD-NOS (Rosoff). All of Student’s teachers at LPS held a master’s degree, were certified in their field, and were also certified and had experience as special educators (Rosoff, Simpson). At LPS, Student’s program offered a social skills group during the day and the option for participation in a “lunch bunch” to practice social skills starting in ninth grade, as well as one-to-one individual counseling if needed (Rosoff).

The Parties agree that Student attended LPS as a result of a January 2010 settlement agreement (SE-27). The agreement contemplated that Student would attend a two-week trial period during which his appropriateness for LPS would be assessed prior to his becoming a full time student in that program (Rosoff, Mother, Father). Student’s acceptance to LPS was hence predicated upon successful completion of the trial period which was initiated in late January 2010. It was the unanimous position of all the LPS teachers, service providers, consultants and administrators that Student was appropriate for their program, could be properly served in all his areas of disability and could make effective progress in this placement (Rosoff, Simpson, Scudder, Sullivan, Scudder).

As such, following the trial period, Student was fully accepted to LPS and he attended through June 2010, and then participated in LPS’s 2010 social skills summer program. He then attended LPS for a few days at the beginning of the 2010-2011 school year prior to leaving for Brehm where he was unilaterally placed by Parents on September 13, 2010. At that point, Parents anticipated that he would complete the school year at Brehm. Parents were committed to this placement, no other school was considered by them in Massachusetts, and Marlborough continued to support LPS (Mother, Father, Rosoff, Pratt, LeFort).

Turning nowto the IEP resulting from the October 2010 Team meeting, I note the following chronology. When Parents accepted placement at LPS in responding to the IEP proposed in April 2010 and again in August 2010, they sought programming changes. In the August 2010 response, they added a request for funding of transportation, something that had been previously negotiated as part of the January 2010 settlement agreement18 (SE-15; SE-27). It was only when they provided their notice of unilateral placement at Brehm on September 3, 2010 that Parent rejected services and placement at LPS.

When the Team reconvened on October 14, 2010, following Parents’ unilateral placement at Brehm, the Parties met for several hours in Marlborough (PE-HH 666). Present at the meeting were Parents, their attorney, Ms. Abbott, Dr. Antalek, Ms. Rosoff, Mr. Pratt and several Brehm staff also participated via telephone conference call. The reports of Dr. Antelek and Ms. Abbott were available to the Team and the Brehm staff offered a description of Student’s program. Based on LPS’s progress reports and the presentation of information as to Student’s progress made by Ms. Rosoff, Marlborough proposed an IEP calling for continued placement of Student at LPS (Pratt, Rosoff).

Marlborough argued that at the October meeting Parents’ intention was to obtain reimbursement for their unilateral placement at Brehm, and that they were not truly open to discussing any other placement.

Parents testified that their concerns regarding LPS (including schedule changes which caused anxiety for Student, lack of use of LIPS as recommended by Dr. Antalek, Student’s lack of friends, and unmet academic needs) were shared with LPS (Mother, Father, Rosoff, Scudder). The evidence shows that LPS addressed Parents’ concerns appropriately, albeit in a way not satisfactory to Parents. The evidence also shows that the aforementioned concerns had not been shared directly with Marlborough until the IEP was rejected in August 2010 (Mother, Pratt).

The evidence is persuasive that the information available to the April Team was almost identical to the information available to the October Team with the exception of the LPS observations and progress reports. Dr. Antalek’s and Ms. Abbott’s summer 2010 evaluations did not advance knowledge regarding Student’s diagnoses, needs or program required by him. Notably, neither recommended residential placement for Student, although Dr. Antalek’s report endorsed Brehm specifically as the only school in the country where Student’s needs could be met, a recommendation she has held steadfast since 2009 (PE-N36719 ; PE-U479B1; PE-W502; Antalek, Abbott).

Marlborough argued that Parents did not offer LPS sufficient time to allow Student to blossom as he was only there for a few months. Also, he entered LPS following multiple independent evaluations that placed his skills at a lower level than he demonstrated at LPS. According to Ms. Rosoff, as a result of the mismatch between the skills Student was demonstrating at LPS, and the independent evaluation results, Student’s schedule underwent changes in March 2010. Ms. Rosoff testified that LPS’s staff supported Student’s placement there and were committed to make any change necessary to accommodate Student’s needs. She opined that Student fit well with the rest of the population served at LPS and she was convinced that he was appropriately served through the day placement (Rosoff, Simpson).

Parents testified that the schedule changes at LPS caused serious distress to Student who has difficulties with transitions (Mother, Father). The schedule change involved placing him in a more appropriate and challenging math class which in turn caused a change in his elective classes, and switching his history class to one with a smaller grouping which allowed for more individualized attention but with the same teacher (Rossoff, Simpson). According to Ms. Sullivan, Student himself requested one of the schedule changes and the change was discussed with him ahead of time. The LPS staff did not see the level of distress reported by Parents, which Parents assert influenced their decision to place Student at Brehm (Mother, Father, Rosoff, Simpson, Scudder, Sullivan). Contrary to Parents’ assertions, the LPS staff opined that Student was appropriately placed there, that he was making effective progress and would have continued to make progress, and that he was not in crisis while placed there.

The testimony of Marlborough, LPS, Parents’ experts and the witnesses from Brehm was unanimous that Student does not demonstrate immediate progress in a short period of time. Rather, evidence of progress for Student may take several months and according to Dr. Castro, could take up to two years. Dr. Castro opined that for an individual like Student, the time he spent at LPS was too brief a period to be utilized as an indicator of success. With extensive, appropriate programming and services Student should be expected to make slow, incremental progress (Rosoff, Castro, Brown, Jansiewicz). This is especially so in light of Student’s great difficulties with transitions and changes as he evidenced at both LPS and Brehm ( Id. ).

Marlborough argued that nothing in the record showed that Student suffered any regression as a result of the changes or that his academic performance was negatively impacted (Scudder, Sullivan, Rosoff).

Student’s LPS English language arts teacher, counselor, and Team facilitator reported that Student demonstrated progress in all areas of the curriculum as evidenced by his work samples, grades, progress reports of April to June 2010, and ELA MCAS result (SE-14, SE-16; SE-17; SE-20; Scudder, Sullivan, Simpson). Not all of Student’s MCAS had a positive outcome but the fact that Student was out of school (albeit receiving some tutoring) from November 2009 through January 17, 2010 cannot be ignored.

Ms. Sullivan testified that Student presented challenges while at LPS and evidenced difficulties around transitions. He however, was not seen as a student in crisis or requiring additional therapeutic interventions (Sullivan). Ms. Grant’s observation report also contained numerous positive remarks about LPS’s programming. Contrary to Parents’ assertions, when Parents brought forthconcerns regarding scheduling, the LPS staff addressed the concerns, even if in the end they disagreed with Parents or some of their experts’ suggestions. Mr. Simpson testified to having had numerous conversations and meetings with Parents to discuss Student’s performance and progress (Simpson).

Ms. Rosoff testified about the appropriateness of the peer group at LPS. She recognized Student’s profile as unique and testified that he had been grouped with students who were at his same learning level. She testified that Student’s profile includes a communication disorder, language-based learning disabilities, a math disorder and PDD-NOS among other difficulties, all of which are disabilities which LPS handles as a matter of course, and stressed that Student did not present as so involved or unique as to require a more restrictive setting. Ms. Rosoff was confident that if given sufficient time to work with Student, LPS could have continued to help him in all of his disability areas (Rosoff).

The evidence is further persuasive that the aforementioned findings would be similarly true for Student’s ninth grade. Ms. Rosoff testified that in ninth grade he would have been part of a social group and would have received Kurzweil, even if this was not specifically stated in the IEP. Also, he would have had access to LIPS in ninth grade. He would have also continued to receive all of the academic courses required to achieve a high school diploma in Massachusetts (Rosoff). These were points that were reiterated by her during the Team meeting in October 2010.

Parents sought to use Dr. Antalek’s and Christa Abbott’s summer 2010 evaluations to rebut the appropriateness of Student’s placement at LPS. Except for Dr. Antalek, none of Parents other witnesses observed Student at LPS; rather, they relied on Parents’ views and statements regarding the program and Student’s performance in rendering their opinions (Castro, Jansiewicz, Abbott). As such, the testimony of Dr. Castro, Dr. Jansiewicz, and Ms. Abbott regarding the appropriateness of LPS has limited reliability and persuasiveness as to the program through June 2010. Dr. Jansiewicz observed LPS in 2011 but Student was not in the program at that time. Her observation of LPS in 2011, was quite positive (with some exceptions as noted in the Facts section), and one of her greatest reservations seemed to be premised on parental report that it had been tried and not worked (Jansiewicz).

There are additional issues with the reliability of Parents’ experts’ statements and conclusions. Dr. Castro did not administer the testing conducted as part of Student’s evaluation in 2008 and 2009, and both of the evaluations in which he was involved pre-dated Student’s enrollment at LPS (Castro). The 2009 evaluation specifically stated that Student’s language-based learning disability was “the single most important element in his presentation” and thus, should drive any placement decision for him (PE-F220; Castro). Additionally, Dr. Castro not only supported LPS in 2009 but he also pleaded with Ms. Rosoff for Student to be admitted to this program (Castro, LeFort, Rosoff). However, despite the fact that LPS is an approved language-based program in Massachusetts, and despite the fact that he endorsed it in 2009, based on Parental reports, Dr. Castro supported Brehm even when he had no specific knowledge of any of the services received by Student there (Castro).

Dr. Jansiewicz’s testimony also presents problems, as she lacked a balanced view of the programs evaluated and some of the information on which she relied was inaccurate (Jansiewicz). Dr. Jansiewicz testified that she had refused to discuss Student’s performance at LPS because the Parties were involved in litigation. She however, communicated with Parents and with Brehm staff. She also did not know about Student’s transitions at Brehm prior to her visit, and did not seem to place much importance on Student’s issues in the dorm. Her observation report also notes progress similar to that described in the progress reports from LPS, except that Student’s speech was more intelligible. Given that she failed to consider the totality of the circumstances, including aspects that impacted directly on her recommendations, her testimony is not deemed reliable.20

Ms. Abbott, Parents’ independent reading specialist, testified that she worked with Student in 2006 when he was in fourth grade, and then saw him again during the summer of 2009. In 2009, she worked with him for six to eight sessions, and also assessed his reading ability using the QRI III (an outdated testing measure), instead of the QRI-IV (PE-W 502). She testified that on the QRI-III, Student demonstrated abilities as an independent reader at the third to fourth grade level. Student’s performance in all areas was higher when the testing was untimed than when it was flashed. She further testified that her testing showed that Student had demonstrated progress in word recognition in context and spelling (Abbott). She recommended that Student receive one-to-one reading instruction three times per week by properly credentialed individuals. Her recommendations did not include any specific methodology, so that the services could be individually tailored to meet his needs.

Ms. Abbott’s report did not mention that Student had been out of school prior to starting the program at LPS in late January 2010. Ms. Abbott did not talk to anyone at LPS nor did she observe Student at that placement. The results of her evaluation were presented at the Team meeting of October 2010 (PE-W502; Abbott).

None of Student’s teachers, administrators or service providers at Brehm observed Student at LPS or spoke with Student’s teachers or service providers at LPS. Like most of Parents’ other witnesses, they relied on the information and opinions gleaned from Parents.

Lynn Carlson-LeFort, Parents’/Student’s advocate, did not evaluate Student nor observe him at either LPS or Brehm. She however testified that she trusted Ms. Rosoff’s judgment regarding the appropriateness of LPS for Student and could offer no explanation for disagreeing with Ms. Rosoff’s recommendation that Student remain at LPS other than Parents’ dissatisfaction (LeFort). I found Ms. LeFort’s testimony to be quite candid, but at the same time she appeared conflicted and uncomfortable in having been called by Parents to support their position and having to disagree with the recommendations of Ms. Rosoff whose judgment Ms. Le-Forte had trusted over decades. .

I note that the evidence shows that even in the highly restrictive out of state residential setting, in February 2010, five months into his placement as a boarding student at Brehm, he was evidencing progress similar to that evidenced at LPS21 . This would suggest that given sufficient time at LPS Parents could have expected and would have likely seen similar growth in Student (Castro). I note that everyone was in agreement to Student’s placement at LPS when he entered that school in January 2010. The record lacks sufficient evidence to show that LPS was inappropriate given the short amount of time Parents allowed Student to remain at that placement.

Parents did not prove 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 in the case at bar is persuasive that the program offered by Marlborough at LPS was appropriate, and that it was likely to continue to allow Student the opportunity to receive a FAPE. Therefore, Parents were not justified in seeking alternative educational placement for Student in a more restrictive, inappropriate out of state program. As such, Parents are not entitled to reimbursement for all out of pocket expenses associated with Student’s placement at Brehm.

II. Procedural Violations:

Parents allege that Marlborough violated Parents’ procedural due process rights by failing to convene a full Team to draft Student’s IEP when he entered LPS and also when the Team was reconvened to discuss Student’s Independent Evaluations/ Parents’ unilateral placement in the fall 2010. Marlborough denies having violated Parents’ procedural rights, and argued that they acted consistent with the agreement reached by the Parties in January 2010 (SE-27). As discussed below, I agree with Marlborough’s position and so find.

The agreement, which reimbursed Parents for out-of-pocket tutorial expenses incurred by them, offered Student placement at LPS until the end of the 2011-2012 school year specifically provided in Paragraph 8 (A) and (B) addressing IEP Development
(A) Upon full execution of this Agreement by all parties, and upon [Student]’s successful completion of the two-week trial at LPS, Marlborough shall, in conjunction with LPS, promptly administratively revise [Student]’s Individualized Education Plan (“IEP”) specifying a private day placement at LPS for the remainder of the 2009-2010 school year and submit it to the Parents for their acceptance. Upon receipt, subject to review for accuracy, the Parents shall accept and return said IEP to Marlborough within ten (10) days.

(B) Marlborough will, in conjunction with LPS, administratively revise any other IEP created during the lifetime of this agreement that is intended to govern any portion of the 2010-2011 and 2011-2012 school years by specifying a private day placement at LPS and submit it to the Parents for their acceptance. Parents shall accept and return any such IEPs to Marlborough within ten (10) calendar days. Marlborough may, but is not required to convene a Team meeting for purposes of developing said IEPs …(SE-27). (Emphasis supplied.)

Therefore, Parents specifically waived the procedural right to the convening of a full Team to draft Student’s IEP during the life of the agreement, opting instead for an administratively drafted IEP. In addition, the evidence shows that the first IEP meetings convened at LPS, included providers, evaluators, a special education teacher, Parents and LPS administrators.

There was a lengthy Team meeting convened in Marlborough on October 14, 2010, once Parents had removed Student from LPS thereby triggering the applicability of the early termination of enrollment provision of the settlement agreement. Parents, their attorney, Ms. Abbott, Dr. Antalek, Ms. Rosoff, Mr. Pratt and Marlborough’s attorney were present in addition to several Brehm staff who participated via telephone conference call, including some of Student’s teachers and service providers. The reports of Dr. Antelek and Ms. Abbott were available to the Team and the Brehm staff offered a description of Student’s program (PE-HH 666). Based on LPS’s progress repots and the presentation of Student’s progress made by Ms. Rosoff, Marlborough proposed an IEP calling for continued placement of Student at LPS (Pratt, Rosoff). Parents failed to present persuasive evidence that they had been denied the right to participate in the Team process either in April or October 2010, or that any procedural irregularity resulted in a denial of FAPE to Student. It is clear that Parents had already placed Student at Brehm, and had no intention of returning him to Massachusetts by October 2010.

The relief sought by Parents here is funding for their unilateral placement of Student at Brehm for the period from September 2010 through April 2011, which is, the expiration date of the only IEP before me. Marlborough correctly argues that pursuant to In Re: Boston Public Schools and Leonard , 13 MSER 255 (July 6, 2007), the type of remedy for a procedural violation that denies parents participation in the process and/ or causes educational harm to Student, if so violation exists, would be compensatory services. Parents carry the burden of persuasion and in order to receive reimbursement as an equitable relief, they must show that the procedural transgression caused harm to Student.

Given that the meeting lasted several hours, that the result of the independent evaluations were discussed, that Brehm personnel participated and described their program via telephone conference call, that Parents were aware of Student’s performance at LPS, that LPS supported Student’s continued placement at that school, and that they were aware that Marlborough supported placement at LPS, it is difficult to support Parents’ claim that their procedural rights were violated.22 Parents’ further argued that no other schools were offered and asserted that Marlborough disagreed with Parents’ position and request for reimbursement. The evidence is persuasive that Parents were offered an opportunity to fully participate even if in the end Marlborough did not support Parents’ chosen school. I therefore find that Parents were neither denied participation in the Team process, nor that Marlborough failed in its duties and responsibilities. Moreover, since Student was at Brehm, Parents selected program, Student experienced no educational harm.

Parents argument that they rejected the IEP partially in August and totally in September, and that the Team was not convened until October is without merit as Mother conceded that she had been offered a September 17, 2010 re-convening date, and she declined because Dr. Antalek was not available on that date. That date also coincided with Parents’ travel to Illinois (Mother, Pratt).

I note that throughout the Hearing and in their pleadings, Parents sought to rely on the settlement agreement when a specific clause could be interpreted in their favor, yet sought to disavow the agreement with respect to terms not favorable to them. (For example, they sought to enforce and rely on the terms calling for “convening of the Team within ten calendar days”, and selectively disregard the terms addressing transportation, administrative IEPs, or for Stay-Put at LPS.)

Regarding their procedural violations claims, I find that the evidence does not support Parents’ position. In this regard, Parents did not meet their burden of persuasion pursuant to Shaffer .

Lastly, Marlborough also raised a procedural violation regarding the requisite ten business day notice that must be provided to school districts prior to a Parental unilateral placement. Marlborough argued that Parents retroactive reimbursement should be reduced or denied because they failed to provide adequate notice regarding unilateral placement of Student.

The IDEA provides at 20 USC §1412(a)(10)(C)(iii)

Limitation on Reimbursement. The cost of reimbursement described in clause (ii) may be reduced or denied –
(I) if

(aa) at the most recent IEP meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP Team that they were rejecting the placement proposed by the public agency to provide a free appropriate public education to their child, including stating their concerns and their intent to enroll their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or

(bb) 10 business days (including holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in item (aa)…

In this regard, the evidence shows that Parents did not assert that they informed the Team on April 16, 2010 of their intention to unilaterally place Student at Brehm. Parents also did not communicate their intention to withdraw Student from LPS in August 2010 following the start of the 2010-2011 school year during which Student attended LPS (Rosoff, Simpson, Sullivan, Scudder). Parents forwarded their notice of unilateral placement on September 3, 2010 (PE-CC 571). Student began attending Brehm on September 13, 2010 (PE-EE597). Marlborough relies on the explanation of the purpose of the notice requirement discussed In Re: Springfield Public Schools , BSEA # 04-4706, by Hearing Officer Crane, in which he cited the First Circuit Court of Appeals Greenland School District v. Amy N ., 358 F.3d 150, 160 (1 st Cir. 2004) decision stating

The [prior notice requirement] serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a free appropriate education can be provided in the public schools. Id .

The evidence shows that Parents failed to provide Marlborough the statutorily required ten business day notice of their intention to unilaterally place Student at Brehm. Furthermore, Marlborough attempted to convene the Team in September 2010 but Parents were unavailable as Mother was accompanying Student to Brehm. By the time the Team reconvened in October 2010, a date agreeable to the parties, Student had already been residing in Brehm for over one month. Parents’ failure to comply with the statutory notice requirement regarding unilateral placement is therefore, a procedural violation which would have resulted in partial or full denial of reimbursement had Parents prevailed in their substantive claim.

III. Brehm’s program:

While it is unnecessary to address the appropriateness of the Brehm program given that LPS was found appropriate, I address Parents’ remaining contentions regarding Brehm.

The Supreme Court held in School Comm. of Burlington v. Dept. of Ed., 471 US 359, 369 (1985), “ the Act contemplates [that such] education will be provided where possible in regular public schools, with the child participating as much as possible in the same activities as non-handicapped children, but the Act also provides for placement in private schools at public expense where this is not possible.”

When a school district fails in its obligation to provide FAPE to a student with a disability, parents may enroll their child in a private school and seek retroactive reimbursement for the cost of the private school. In those cases, if the BSEA Hearing Officer finds that the school district did not make FAPE available to the student in a timely manner, and finds that the private school placement selected by the parents was reasonably calculated to enable the child to receive educational benefit, the Hearing Officer may require the school district to reimburse the parents for the reasonable out-of-pocket costs associated with the parents unilateral placement, including tuition and transportation.23

To prevail, Parents must demonstrate that the public school system defaulted on its obligations under the IDEA. The First Circuit Court has maintained that a private school placement is “proper under the Act” if the education provided by the private school is “reasonably calculated to enable the child to receive educational benefits”.24 As such, Parents are only entitled to reimbursement for the private school if they can prove that the public school failed to offer a FAPE and the private school selected by Parents offered Student “an education otherwise proper under [the] IDEA.”25

When considering the appropriateness of the private placement selected by Parents, the First Circuit focused more on the appropriateness of the services provided to the student in light of the recommendations of the educational experts,26 than on the educational progress attained by the student in that placement.27 Furthermore, w ithin the context of the IDEA, parents are not bound by the same statutory requirements of FAPE that apply to public schools when considering the appropriateness of the private educational placement and services selected by the parents.28 In the case at bar, Parents also carried the burden of showing that Student required residential placement in order to receive FAPE.

While there is evidence on the record to the effect that enrolling student at a boarding school (away from the protection of his Parents, and with increased opportunities to socialize with peers during unstructured hours) may have proved beneficial, the evidence simply does not support that Student needs residential placement in order to receive a FAPE. Additionally, there are several problems with this placement.

First, if in fact Student is as unique and complex as Parents and their representatives believe, then he would require highly qualified personnel to address his needs across all settings. The staff at Brehm, especially the recreational and dorm staff, lack that high level of qualification.

Second, there are questions as to whether Student received the individual comprehensive services he received at LPS, and further as to Brehm’s use of the specific methodology sought by Parents and the staff’s credentials in Parents’ preferred methodology.29 While Dr. Antalek “so ardently endorsed” Lindamood Bell LIPS methodology it is unclear whether Student is currently receiving this methodology and whether it is implemented systematically and/ or consistently by properly certified staff at Brehm.

Third, despite showing signs of anxiety during test taking, and in the dorm, as well as difficulties with transitions, as testified to by Brehm staff, Student did not receive direct counseling (which is distinct from advisement) at Brehm, a service which is offered off campus (PE-GG-628; Brown, Collins, Appiah-Kubi).

Additionally, Marlborough is correct that the testimony of the Brehm staff indicates that the social skills development occurs outside the school day and is more a bi-product of the regular activities in which all boarding students participate. According to Dr. Collins, although campus forums are offered, Student did not participate regularly (Collins).

The evidence further shows that Student’s schedule and living arrangements at Brehm underwent several programmatic changes, impacting the day and evening portions of his program (speech and language, advisement, and dorm/ room-mate issues) which, Marlborough argued, made for a non-cohesive program (PE-MM75; Appiah-Kubi; Collins, Jansiewicz ).

Finally, during the 2010-2011 school year, Student did not receive science, thus failing to prepare him for the biology MCAS exam in Massachusetts (PE-K317; PE-TT932; Rosoff, Collins, Brown).

In deciding to send Student to an out-of-state, private, boarding school, Parents claimed to have first considered every possible alternative in Massachusetts (Mother, Father). The evidence shows that they considered some schools in Massachusetts in 2009. However, in 2010, once they determined LPS to be inappropriate, they did not inquire into any other school/ program in, or outside, Massachusetts other than Brehm. Parents’ love and devotion for their son is unquestionable, but analysis of the facts raises serious questions about their credibility. Mother testified that Dr. Antalek had recommended that Student attend Brehm back in 2009. Parents applied to Brehm and Student was accepted in December 2009. Father testified that Illinois was a far away place to send Student and that their previous attorney had told them that no hearing officer in Massachusetts would ever support out of state placement for a student who had never tried a private school in Massachusetts. After some search in state, and phone calls by Dr. Castro, Ms. LaFort and previous counsel, Student was accepted to LPS. Father testified that even when they requested this placement and agreed to it in January 2010, he made sure that there was “an out” of the contract built into their agreement. Parents proceeded to keep very detailed account of everything that they disapproved of during the five months Student was at LPS, they disagreed with recommendations that did not meet with Dr. Antalek’s approval, they had Student observed, and then they proceeded with even more evaluations in 2010 even though Student had been thoroughly evaluated in 2009. While Parents were seemingly going along with LPS’s recommendations, they took Student to Brehm for a visit during the summer of 2010. Dr. Collins testified that this visit was intended to see if Student was a good fit for Brehm but the evidence shows that Student had already been accepted to this school seven months earlier in December 2009. Student started school in Brehm in September of 2010 at the beginning of their school year. Additionally, on the date of LPS’ graduation in June 2010, Student had thanked Mr. Simpson for the experience at LPS but indicated that he would be attending a different school the following school year. The totality of the evidence shows that very early on in this process, Parents intended on placing Student at Brehm, and intended on seeking funding from Marlborough. It is disingenuous of them to claim that by September/October 2010 they would have considered any program other than Brehm. As such, I find Parents’ testimony not to be reliable in this regard.

ORDERS:

1. Marlborough’s IEP offering Student placement at LPS between April 2010 and April 2011 was reasonably calculated to afford Student a FAPE and constitutes the least restrictive environment.30

By the Hearing Officer,

___________________________________________

Rosa I. Figueroa

Dated: July 29, 2011


1

Despite the Hearing Officer providing very detailed guidance regarding submission of relevant documents, Parents submitted four binders each approximately three inches wide, which included numerous stale or irrelevant documents given the limited issue before me, and many documents were duplicates. During a lengthy telephone conference call prior to the Hearing, many of these exhibits were stricken. Because the exhibit books contained a letter and double letter numeration, and because some of the exhibits were contained in different binders within the Parents’, school’s and Hearing Officer’s sets, the process was unnecessarily delayed when trying to find a document to which a witness was referred even though the pages were numbered. As a result, the itemization of Parents Exhibits admitted in Evidence will follow under separate cover.


2

On the last day of Hearing the Parties were provided very specific instructions regarding the closing arguments. There was a page, font size, margin and spacing limit set and both counsel were warned not to exceed the limits. While the school’s closing argument stayed within the limits set, albeit with three very short, appropriate footnotes, with the exception of the page limit, Parents’ counsel disregarded the instructions, and included forty two footnotes, with lengthy, argumentative narrations, in smaller font than required.


3

The note specifically states that at graduation Student told Joel Simpson, “thanks for the year, I am going to school in Illinois” (SE-19). Mr. Simpson testified almost one year later that he could not recall if Student had specifically mentioned Illinois (Simpson).


4

This is done to reduce noise in the dinning hall and create a more relaxing atmosphere (Collins).


5

On the third day of Hearing Parent’s attorney argued that the issues for Hearing covered the 2011-2012 school year because the IEPs covered the period from April to April and Parents requested reimbursement for Brehm for the 2010-2011 school year, which included a portion of the following school year. She reasoned that since the IEP expired in April and Marlborough had not reconvened the Team, the issues for Hearing encompassed the following school year. The record contains a detailed description of her argument, response by Marlborough and my explanation, summary of what transpired during the Pre-Hearing Conference, the choices made by her clients at the Pre-Hearing Conference and my re-statement of the issues, which included solely the appropriateness of the IEP promulgated by Marlborough for the 2010-2011 school year and whether Parents were entitled to reimbursement for Student’s unilateral placement at Brehm.


6

20 USC 1400 et seq .


7

MGL c. 71B.


8

MGL c. 71B, ss. 1 (definition of FAPE), 2, 3.


9

If so, Marlborough would be responsible to reimburse Parents for their unilateral placement through the date of this IEP.


10

E.g., 20 USC 1400(d)(1)(A) (purpose of the federal law is to ensure that children with disabilities have FAPE that “emphasizes special education and related services designed to meet their unique needs . . . .”); 20 USC 1401(29) (“special education” defined to mean “specially designed instruction . . . to meet the unique needs of a child with a disability . . .”); Honig v. DOE , 484 U.S. 305, 311 (1988) (FAPE must be tailored “to each child’s unique needs”).


11

Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 192 (1982) (goal of Congress in passing IDEA was to make access to education “meaningful”); Deal v. Hamilton County Board of Education, 104 LRP 59544 (6 th Cir. 2004); (“ IDEA requires an IEP to confer a ‘meaningful educational benefit’ gauged in relation to the potential of the child at issue”); G. by R.G. and A.G. v. Fort Bragg Dependent Schs , 40 IDELR 4 (4th Cir. 2003) (issue is whether the IEP was reasonably calculated to provide student meaningful educational benefit); Weixel v. Board of Education of the City of New York , 287 F.3d 138 (2 nd Cir. 2002) (placement must be “‘reasonably calculated’ to ensure that [student] received a meaningful educational benefit”); Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) (educational benefit must be “meaningful”); Ridgewood Board of Education v. NE for ME , 172 F.3d 238 (3 rd Cir. 1999) (IDEA requires IEP to provide “significant learning” and confer “meaningful benefit”).


12

Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993) (program must be “reasonably calculated to provide ‘effective results’ and ‘demonstrable improvement’ in the various ‘educational and personal skills identified as special needs’”); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990) (“Congress indubitably desired ‘effective results’ and ‘demonstrable improvement’ for the Act’s beneficiaries”); Burlington v. Department of Education , 736 F.2d 773, 788 (1 st Cir. 1984) (“objective of the federal floor, then, is the achievement of effective results–demonstrable improvement in the educational and personal skills identified as special needs–as a consequence of implementing the proposed IEP”); 603 CMR 28.05(4)(b) (Student’s IEP must be “ designed to enable the student to progress effectively in the content areas of the general curriculum”); 603 CMR 28.02(18) (“ Progress effectively in the general education program shall mean to make documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to chronological age and developmental expectations, the individual educational potential of the child, and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district.”).


13

See generally In re: Arlington , 37 IDELR 119, 8 MSER 187, 193-195 (SEA MA 2002) (collecting cases and other authorities).


14

MGL c. 69, s. 1 (“paramount goal of the commonwealth to provide a public education system of sufficient quality to extend to all children the opportunity to reach their full potential… ”); MGL c. 71B, s. 1 (“special education” defined to mean “…educational programs and assignments . . . designed to develop the educational potential of children with disabilities . . . .”); 603 CMR 28.01(3) (identifying the purpose of the state special education regulations as “to ensure that eligible Massachusetts students receive special education services designed to develop the student’s individual educational potential…”). See also Mass. Department of Education’s Administrative Advisory SPED 2002-1: Guidance on the change in special education standard of service from “maximum possible development” to “free appropriate public education” (“FAPE”), effective January 1, 2002, 7 MSER Quarterly Reports 1 (2001) (appearing at www.doe.mass.edu/sped) (Massachusetts Education Reform Act “underscores the Commonwealth’s commitment to assist all students to reach their full educational potential”).


15

Hendrick Hudson Dist. Bd. of Educ. v. Rowley , 458 U.S. 176, 199, 202 ( court declined to set out a bright-line rule for what satisfies a FAPE, noting that children have different abilities and are therefore capable of different achievements; court adopted an approach that takes into account the potential of the disabled student ); Deal v. Hamilton County Board of Education, 104 LRP 59544 (6 th Cir. 2004); (“ IDEA requires an IEP to confer a ‘meaningful educational benefit’ gauged in relation to the potential of the child at issue”); HW and JW v. Highland Park Board of Education , 104 LRP 40799 (3 rd Cir. 2004) (“benefit must be gauged in relation to the child’s potential”); Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) (progress should be measured with respect to the individual student, not with respect to others); T.R. ex rel. N.R. v. Kingwood Twp. Bd. of Educ., 205 F.3d 572, 578 (3d Cir. 2000) (appropriate education assessed in light of “individual needs and potential”); Ridgewood Board of Education v. NE , 172 F.3d 238 (3 rd Cir. 1999) (“quantum of educational benefit necessary to satisfy IDEA . . .requires a court to consider the potential of the particular disabled student”); Mrs. B. v. Milford Board of Ed. , 103 F.3d 1114, 1122 (2d Cir. 1997) (“child’s academic progress must be viewed in light of the limitations imposed by the child’s disability”); MC v. Central Regional School District , 81 F.3d 389 (3 rd Cir. 1996), cert. denied 519 US 866 (1996) (child’s untapped potential was appropriate basis for residential placement); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990) (“academic potential is one factor to be considered”); Kevin T. v. Elmhurst , 36 IDELR 153 (N.D. Ill. 2002) (“ Court must assess [student’s] intellectual potential, given his disability, and then determine the academic progress [student] made under the IEPs designed and implemented by the District ”).


16

E.g. Lt. T.B. ex re.l N.B. v. Warwick Sch. Com ., 361 F. 3d 80, 83 (1 st Cir. 2004)(“IDEA does not require a public school to provide what is best for a special needs child, only that it provide an IEP that is ‘reasonably calculated’ to provide an ‘appropriate’ education as defined in federal and state law.”)


17

Schaffer v . Weast , 126 S.Ct. 528 (2005) places the burden of proof in an administrative hearing on the party seeking relief.


18

“5. Transportation . The Parents hereby agree to be one hundred percent (100%) responsible for funding and providing daily transportation to and from LPS during the Trial Period, for the remainder of the 2009-2010 school year, for the 2010-2011 and 2011-2012 school years, as well as during the summers of 2010 and 2011.” (SE-27).


19

See observation report stating that if her recommendations were not implemented, Student would require a “setting outside Massachusetts” (PE-N371).


20

Dr. Jansiewicz’s opinion regarding Brehm also present reliability problems as she did not observe Student’s English language arts class, arguably the most important class given Student’s language-based deficits.


21

The one exception was speech intelligibility.


22

I note for the record that both Parents and Marlborough were represented by counsel at the October 2010 Team meeting.


23

20 USC 1412 (a)(10)(C)(ii); Florence County Sch. Dist. Four v. Carter , 510 U.S. 7, 11-13 (1993); Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 370, 373-74 (1985); Diaz-Fonseca v. Puerto Rico , 451 F.3d 13, 31 (1 st Cir. 2006).


24

Id . at 11. See also Mr. I. v. Maine School Administrative District No. 55 , 480 F.3d 1, n.22 (1 st Cir. 2007); Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26 (1st Cir.2002).


25

Id. at 12-13. Also, in Mr. I. v. Maine School Administrative District No. 55, the First Circuit court of Appeals clarified the necessary elements for reimbursement of a private placement stating:

In Burlington, the Supreme Court reasoned that because parents who disagree with the proposed IEP are faced with a choice: go along with the IEP to the detriment of their child if it turns out to be inappropriate or pay for what they consider to be the appropriate placement, they are entitled to reimbursement of the expenses of that placement if it turns out they were right in choosing it. Implicit in this reasoning is the notion that parents rightfully decide on a private placement when it addresses, at least in part, their child’s special educational requirements, while the IEP does not. . . .

As we have recognized, a private placement need provide only some element of the special education services missing from the public alternative in order to qualify as reasonably calculated to enable the child to receive educational benefit. Nor must the placement meet every last one of the child’s special education needs. But the reasonableness of the private placement necessarily depends on the nexus between the special education required and the special education provided. Mr. I. v. Maine School Administrative District No. 55 , 480 F.3d 1, 24, 25 (1 st Cir. 2007) (internal quotations and citations omitted; emphasis in original).


26

See Mr. I. v. Maine School Administrative District No. 55 , 480 F.3d 1, 25 (1 st Cir. 2007) ( private school was not appropriate since this school, “where [student] has remained for more than two full academic years, simply does not provide the special education services that [student’s] mental health professionals have prescribed”).


27

See Rafferty v. Cranston Public School Committee , 315 F.3d 21 (1 st Cir. 2002) ( even if the child makes academic progress at the private school, “that fact does not establish that such a placement comprises the requisite adequate and appropriate education”).


28

Florence County Sch. Dist. Four v. Carter , 510 U.S. 7, 13-14 (1993) (private school need not necessarily meet state educational standards or be state-approved, and need not meet federal statutory definition of FAPE); Doe v. West Boylston School Committee , 4 MSER 149, 161 (D.Ma. 1998) (Massachusetts FAPE standards need not be met for private placement to be appropriate).


29

Overall, Marlborough also disputes Parents’ right to dictate the methodology used by a school system.


30

If Student returns to LPS, Marlborough shall add specific language to his IEP that delineates Student’s participation in a social and/ or lunch group.


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