Sudbury Public Schools – BSEA # 05-4726 and 05-4827



<br /> Sudbury Public Schools – BSEA # 05-4726 and 05-4827<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Sudbury Public Schools BSEA # 05-4726 and # 05-4827

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.

A hearing was held on October 17 and 18, 2005 and November 7, 8 and 9, 2005 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:

Student’s Mother

Student’s Father

Gail Maurer Program Specialist, Judith Wisnia and Associates

Judith Wisnia Speech Language Pathologist, Judith Wisnia and Associates

Laura Becker Speech Language Pathologist, Private Practice

David Stevens Psychologist, Stevens and Associates

Christine Locke Teacher, CASE Collaborative

Honore Weiner Program Administrator, CASE Collaborative

Luan Dean Out-of-District Coordinator and Team Chair, Sudbury Public Schools

Deborah Dixson Administrator for Special Education, Sudbury Public Schools

Pamela O’Sullivan Attorney for Parents

Kathleen Bach Paralegal with Pamela O’Sullivan

Regina Tate Attorney for Sudbury Public Schools

Kathleen Yaeger Observer with Regina Tate

Sonya Lopes Court Reporter

Thomas Houton Court Reporter

The official record of the hearing consists of documents submitted by the Parents and marked as exhibits P-1 through P-54, except that exhibit P-18 was not admitted; documents submitted by the Sudbury Public Schools (Sudbury) and marked as exhibits S-1 through S-69, except that exhibit S-46 was not admitted; and approximately five days of recorded oral testimony and argument. As agreed by the parties, written closing arguments were due on December 2, 2005, and the record closed on that date.

I. INTRODUCTION

Prior to the Hearing in this dispute, the parties settled among themselves their dispute regarding the summer of 2005 and the 2005-2006 school year. Parents withdrew from their Hearing Request all claims relevant to these time periods.

Consequently, all of the issues to be decided in this case pertain to compensatory education and reimbursement claims. The parties have agreed that the statute of limitations precludes my considering any claims prior to three years before the filing of Parents’ Hearing Request on April 26, 2005. Accordingly, this dispute considers claims during the time period from April 26, 2002 through the 2004-2005 school year.

Central to all, or nearly all, of the issues in dispute is whether Sudbury appropriately proposed and provided special education and related services and evaluations to address Student’s difficulties in learning how to read. Ultimately, this case involves the question of whether Sudbury provided appropriate special education and related services to address this area of need and if not, whether Parents are entitled to reimbursement and/or compensatory education.

BSEA decisions should be no longer and no more complicated than necessary. This Decision is both lengthy and complex. This resulted from (1) the very large number of claims made by Parents (and opposing arguments of Sudbury) all requiring consideration, (2) consideration of Sudbury’s actions over a significant period of time, (3) the expectation by courts that there be a comprehensive development of the administrative record in compensatory cases, and (4) the need to establish a factual record for the courts with respect to Parents’ damages claims.

In order to assist in the reading of this Decision, I have attached, as Appendix A, an outline of the Decision.

II. ISSUES

The issues may be summarized as follows

· Were the IEPs proposed by Sudbury for the 2001-2002, 2003-2004 and 2004-2005 school years (including the summers of 2002, 2003 and 2004) reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment?

· Were these IEPs appropriately implemented by Sudbury?

· Were there procedural violations by Sudbury?

· Did Sudbury appropriately and timely evaluate Student during the relevant time period?

· If not, are Parents entitled to (i) reimbursement for education-related services arranged by Parents for the summers of 2003 and 2004 and for the 2004-2005 school year, (ii) reimbursement for evaluations arranged by Parents, and (iii) additional compensatory education?

III. FACTS

A. Profile of Student

1. Student is an eight-year-old young boy (date of birth 12/10/96) who lives with his Parents in Sudbury, MA. Student currently attends 3 rd grade at Curtis Blake School, a private school in western Massachusetts, pursuant to an agreement between Parents and Sudbury for the 2005-2006 school year. Testimony of Mother; exhibit P-3.

2. Student is an engaging, adorable and intelligent young boy, with strengths in the areas of nonverbal thinking and problem solving. Student also has significant learning disabilities characterized, in part, by a severe weakness regarding phonological output and phonological awareness. Student also has significant deficits regarding visual perceptual skills, visual spatial skills, executive functioning skills and sensory motor coordination skills. Testimony of Becker, Stevens, Locke, Wisnia, Weiner; exhibits P-6 (page 2 of 14), P-16.

3. Student’s deficits have had a significant impact upon his acquisition of reading skills and upon his learning in general. Testimony of Weiner, Locke, Becker, Stevens, Wisnia.

B. 2000 to 2001 School Year

4. Due to concerns regarding Student’s articulation, a speech/language evaluation was conducted by Sudbury on February 28, 2000, resulting in a service delivery plan. The plan sought to address Student’s articulation by providing speech and language services for 30 minutes, once per week, beginning in March 2000. In addition, an academic readiness test was administered to Student that found a mild delay in academic readiness, resulting in a recommendation for integrated pre-school, which Student then began attending. Testimony of Mother, Dixson; exhibit S-50.

5. On May 2, 2001, a second academic readiness test was administered by Sudbury, recommending that Student continue with speech language therapy, that Student’s cognitive development be monitored closely to ensure progress and that Student be referred to an occupational therapist in the fall of 2001 for evaluation of his fine motor skills. Testimony of Mother, Dixson; exhibit P-25.

6. Ms. Dixson testified that normally it would be Sudbury’s responsibility and practice to perform such an occupational therapy evaluation of Student since it was recommended in a Sudbury assessment. However, the evaluation did not occur until May 2003, and occupational therapy services commenced thereafter, as discussed below. Testimony of Mother, Dixson.

C. 2001 to 2002 School Year

7. The IEP for the period 5/9/01 to 5/9/02, which included goals with respect to receptive and expressive language and speech sound production, was accepted in full by Parents. The progress reports in January 2002 and June 2002 provided a brief description of progress made regarding the three goals in the IEP, although the June 2002 report did not include sufficient information to determine Student’s progress or whether he met any of the three IEP goals. Testimony of Mother, Dixson; exhibit P-26.

D. 2002 to 2003 School Year

8. On May 7, 2002, Parents attended an IEP Team meeting. The Sudbury members of the Team reported that Student was doing well and that he was prepared to attend regular education kindergarten next school year with the addition of speech and language services. Parents were concerned that their son would not be able to keep up; they suggested additional testing of their son and that he be held back in school. However, Parents deferred to Sudbury staff’s judgment, and Student was assigned to enter kindergarten in the fall of 2002 without any further testing. An IEP was written for the period 5/7/02 to 5/7/03 that included two goals – goal # 1 for receptive and expressive language and goal # 2 for speech sound production/articulation. Parents accepted this IEP in full. Testimony of Mother, Dixson; exhibit P-27.

9. In November 2002, progress reports were prepared by Sudbury staff regarding the progress that Student had been making with respect to his two IEP goals. The November progress report with respect to goal # 1 (receptive and expressive language) of the IEP did not report on what progress, if any, Student was making, and the progress report with respect to goal # 2 (speech sound production/articulation) did not report what progress, if any, was being made regarding most of the benchmarks/objectives. Exhibit P-27.

10. Parents were not noticing any improvement in their son’s articulation skills; they had additional concerns regarding their son’s difficulty learning the alphabet and learning to write. In November 2002, Parents expressed their concerns to Student’s teacher who suggested that they wait and see how Student was progressing in January and February of 2003. Parents’ doubts and concerns were increasing regarding the appropriateness of their son’s education. Testimony of Mother.

11. In March 2003, additional reports were prepared by Sudbury staff regarding the progress that Student had been making with respect to his two IEP goals. The progress report for goal # 1 (receptive and expressive language) used broad statements without reference to the benchmarks/objectives and without indicating whether Student was on target to meet the goal. The progress report for goal # 2 (speech sound production/articulation) referenced specific progress with respect to some, but not all, of the benchmarks/objectives. Testimony of Mother; exhibit P-27.

12. In March 2003 after attending a conference addressing special education issues in general, Mother came to the conclusion that her son likely had a learning disability. She based this conclusion on the remarks of the conference presenter together with her son’s difficulties in learning — for example, difficulty learning the days of the week and names. Soon thereafter, Parents requested that Sudbury further evaluate their son. Testimony of Mother.

13. On March 26, 2003, Mother gave consent to Sudbury to administer certain assessments to her son – specifically, learning aptitude/achievement assessment, speech and language assessment, educational assessment, observation of Student, and developmental home assessment. The consent was received by Sudbury on March 27, 2003. Soon thereafter, Mother spoke with the Sudbury IEP Team chairperson (Ms. Ms. Coyne-Gordon) who advised Mother that no psychological evaluation would be done. Mother testified that had she been asked to consent to a psychological evaluation, she would have done so, but would not have wanted it to occur during the spring of 2003 because of the stress that her son was under at that time. Testimony of Mother; exhibit P-51.

14. Sudbury did not provide Parents with any further progress reports for the 2002-2003 school year, and Parents did not receive any other end-of-the-year report on their son’s progress for this school year (kindergarten). At this time, Parents were relying on Sudbury to keep them informed regarding their son’s progress and had not yet engaged any outside advisors for this purpose. Testimony of Mother.

15. On March 20 and 26, 2003 and April 1, 3, and 11, 2003, Deborah Dressler , MS CCC-SLP (Sudbury Speech Language Pathologist) conducted a speech and language evaluation of Student. The written evaluation found that Student
has both high average to below average abilities in his receptive and expressive language skills. He benefits from visual supports for verbal directions/information. His reduced ability to listen to and hold onto information of increasing length and complexity results in decreased processing. His difficulty shifting and maintaining attention to grade level curriculum also results in diminished comprehension. Clearly, [Student] benefits from highly structured and routined [sic] activities that build in repetition and become familiar to him. His motivation, consistent participation and good attitude are positive indicator [sic] for future success.

Exhibits P-21, S-1.

16. On May 2, 12 and 16, 2003, Regina Navia , MEd, MS, OTR/L (Sudbury Occupational Therapist) did an occupational evaluation of Student. The evaluation report found that areas needing improvement were in crossing midline, proximal stability, fine motor/visual integration and visual perceptual skills. The report noted at page 5 that Student used strategies such as rocking to keep alert while performing more challenging tasks. The report further noted that “[t]he sum total of these difficulties are reflected in his written output and functional hand use within his academic environment.” The original version of this report included an incorrect birth date of 8/29/96 (actual birth date is 12/10/96) for Student. Parent testified that when the birth date was corrected, no other changes were made to the report. Testimony of Parent; exhibits P-20, S-4.

17. On May 7, 2003, Aimee Caldeira , M.S.Ed. (Sudbury Special Educator) performed an educational achievement evaluation of Student. The evaluation report found that Student’s performance is high average in academic knowledge; average in written expression, phonological memory and rapid naming skills; and low to low average in math reasoning, written language, phonological awareness, phoneme-grapheme knowledge and basic reading skills. The report further stated: “Based on test results, it appears that [Student’s] weaknesses would make it difficult for him to make effective progress in the areas of reading, writing, and mathematics without further special education interventions.” Exhibits P-23, S-5.

18. Ms. Dixson testified that Ms. Caldeira informed her that after assessing Student, she had additional questions that she believed should be addressed through testing, and that Ms. Caldeira asked Dr. Rothman to do further testing for this purpose.

19. On May 15, 2003, Bette Rothman , EdD (Sudbury school psychologist) conducted cognitive testing of Student. The evaluation report identified weaknesses in (1) aspects of language processing, (2) auditory-verbal and visual memory functions (especially working memory), (3) control of motor output (affecting articulation and handwriting) and (4) temporal and spatial sequencing and orientation that are implicated in Student’s difficulties acquiring early literacy and math skills. The report recommended that additional testing occur in the fall of 2003 to obtain a “more precise understanding of verbal and visuo-perceptual strengths and weaknesses”. Exhibits P-22, S-3.

20. Ms. Dixson testified that she considered Dr. Rothman’s testing to be less than a full psychological evaluation and that it is properly considered an extension of Ms. Caldeira’s testing, utilizing Dr. Rothman’s expertise.

21. With respect to the developmental family assessment, for which Parents had provided consent on March 26, 2003, Mother testified that she understood that the assessment was not completed because the person who would have done the assessment did not know that she was supposed to do it. Testimony of Mother.

22. On May 15, 2003, after a parent-teacher conference, Mother spoke with Ms. Caldeira and Dr. Rothman who noted significant learning disability issues including a significant discrepancy between Student’s educational performance and potential. Testimony of Mother.

23. Also in May 2003, Mother observed her son during part of his school day. She found her son to be upset that he was not able to do the work that was expected of him; he was crying and banging his head. Mother testified that she had not previously observed this behavior. Testimony of Mother.

24. On May 19, 2003, Sudbury convened an IEP Team meeting to consider the recent evaluations of Student and to prepare a new IEP. Mother testified that although she requested that the Team meet for longer than an hour, the meeting had been scheduled for only an hour and Sudbury declined to schedule a longer meeting. Mother explained that during the meeting, the evaluations that had been completed were discussed, that Dr. Rothman and others at the meeting agreed that the test results were likely skewed and/or incomplete because of Student’s stress during testing, that the occupational therapist reported that she had not had sufficient time to test Student regarding sensory integration issues and this testing should be completed, and that Dr. Rothman recommended that a neuropsychological evaluation be completed. Testimony of Mother.

25. The IEP Team made a finding that Student had a specific learning disability related to his phonological processing, sequencing, working memory and visual perceptual skills. The written finding of disability stated that Student “needs direct, systematic, multisensory approach to learning in meaningful context”. Exhibits P- , S-2.

26. A new IEP was not developed during the May 19, 2003 IEP Team meeting, and a second Team meeting was scheduled for June 6, 2003 for this purpose.

27. On June 6, 2003, Margaret Shelley , MS, PT (Sudbury Physical Therapist) did a physical therapy observation of Student at the request of Parents. The written report made a number of observations and concluded that in the event that Parents continue to have concerns regarding their son’s gross motor development as it relates to his school functioning, a physical therapy evaluation would be completed at the beginning of the 2003-2004 school year. Exhibit P-24.

28. On June 6, 2003, the IEP Team met to develop a new IEP for Student. Several people did not attend – Student’s kindergarten teacher (Ms. Hammond) and the speech language pathologist (Ms. Dressler) – and the guidance counselor (Mr. O’Neil) was late. By this time, Parents had hired an educational consultant (Fran Perlman) who attended the meeting. Mother testified that she had received a draft IEP on June 5, 2005, which was discussed during the meeting. She explained that there was no consensus reached during the meeting regarding what should be included within the IEP, although certain elements of the IEP were agreed upon, including parent consultation and coordination of staff. Testimony of Mother.

29. Mother testified that, based on her discussions with Dr. Rothman, she believed that her son’s educational achievement evaluation did not adequately identify the nature and extent of her son’s learning disabilities. Mother also concluded that the cognitive and occupational therapy evaluations were incomplete, that the speech language evaluation was inadequate, and that a physical therapy evaluation was needed. Testimony of Mother.

E. July to December 2003

30. As a result of the June Team meeting, a final written version of Sudbury’s proposed IEP for the summer of 2003 and the 2003-2004 school year was produced and signed by Ms. Dixson on June 24, 2003. On or shortly after June 26, 2003, Parents received the IEP in the mail. Mother testified that the IEP had not changed significantly from the draft IEP that she had received on June 5, 2003. Testimony of Mother, Dixson; exhibit P-8, S-7.

31. The IEP proposed the following direct special education services for the period 9/3/03 to 6/6/04: speech/language for 30 minutes, twice per week; reading for 30 minutes, 5 times per week; writing for 30 minutes, twice per week; mathematics for 30 minutes, once per week; and occupational therapy for 30 minutes, once per week. Exhibits P-8, S-7.

32. The IEP proposed the following direct special education services for the summer from 7/7/03 to 8/15/03: speech/language for 30 minutes, twice per week; literacy for 30 minutes, 3 times per week; and occupational therapy for 30 minutes, twice per week. Exhibits P-8, S-7.

33. The IEP proposed the following special education services to be provided within the general education classroom from 9/3/03 to 6/6/04: speech/language for 30 minutes, once per week; writing for 30 minutes, twice per week; mathematics for 45 minutes, twice per week; occupational therapy for 30 minutes, once per week; and academic support for 60 minutes, 5 times per week. Exhibits P-8, S7.

34. The IEP proposed the following consultation services to be provided from 9/3/03 to 6/6/04: consultation by staff for 15 minutes, once per week; and the following consultation services to be provided from 19/9/03 to 6/6/04: consultation to Parent by TEAM for 30 minutes, once per month. Exhibits P-8, S-7.

35. On July 28, 2003, Mother signed the IEP, accepting all portions of the IEP except for the parts that were specifically rejected. The parts specifically rejected by Mother were goals 1, 2, 3 and 4, with Mother’s written explanation on the IEP that the “goals do not adequately address [Student’s] speech and language weaknesses nor do they provide measures sufficient for documenting progress and assuring the achievement of key milestones.” In the comments section of the IEP, Mother further wrote that Parents believe the speech and language services are inadequate for addressing their son’s weaknesses in this area. She also noted that the IEP Team had agreed that the physical therapy evaluation should be completed by the end of September 2003 (rather than by the end of fall) in order that Student not lose services in the event that they are needed. The signed IEP was received by Sudbury on July 31, 2003. Exhibits P-8, S-7.

36. Mother testified that although she was dissatisfied with the rejected goals (as well as certain aspects of the accepted goals), she accepted the remainder of the IEP because she wanted the services described within the IEP to continue for her son. She explained that she planned to have additional evaluations completed and with these evaluations, have the IEP revised at the beginning of the 2003-2004 school year. She also noted that although she believed that the IEP Team had agreed to parent consultation services, these services did not appear in the IEP. She testified that she did not recall whether she signed the placement page of the IEP, that the placement page did not have any indication of the amount of inclusion (or restrictiveness) of the placement for her son, and that the previous IEP had ended on May 7, 2003 with the result that there was a gap between IEPs. Testimony of Mother; exhibit S-7.

37. Although Mother signed the IEP and returned it to Sudbury at the end of July 2003, Sudbury was willing to, and in fact did, begin summer services without a signed IEP. Parents wanted the summer services to occur at times that did not conflict with Student’s summer camp. Ms. Dixson sought to accommodate this schedule and was able to obtain service providers to deliver the literacy and occupational therapy services at the requested times, but was not able to identify a service provider for the speech language services. Testimony of Mother, Dixson.

38. Ms. Dixson called Mother at the end of July 2003 to say that Sudbury had not been able to find a speech language therapist to provide the services, and Ms. Dixson offered to contract with a person identified by Mother. As a result, Mother identified Laura Becker, a speech language pathologist. E-mail messages between Mother and Ms. Dixson, both dated September 10, 2003, document Parents’ request to have Dr. Becker provide these services and Ms. Dixson’s willingness to consider Dr. Becker, provided that she was a licensed and certified speech pathologist. At Mother’s request, Dr. Becker began providing speech language services to Student on October 1, 2003. Until the filing of the Hearing Request with the BSEA in the instant dispute, Parents had not requested that Sudbury reimburse Parents for the cost of speech language services provided by Dr. Becker. Testimony of Mother, Dixson; exhibits P-29, P-48 (last page).

39. Beginning in the summer of 2003, Parents began arranging for additional private evaluations for their son since they found the Sudbury evaluations to be inadequate and incomplete. The believed that “time was of the essence” and wanted their son to receive appropriate services at the start of 1 st grade. Testimony of Mother.

40. On June 10, 2003, Parents had the first of three neurology consultations with Ann Neumeyer , MD, pediatric neurologist, at the Learning and Developmental Disorders Evaluation and Rehabilitation Services in Wellesley, MA. The report from the June 10 th consultation stated that Student presented with a “history consistent with a learning disability”; recommended neuropsychological testing to further diagnose a learning disability and assist with school and educational planning; and recommended speech therapy, occupational therapy and education evaluations. Parents did not provide Dr. Neumeyer’s reports to Sudbury. Parents then arranged privately for occupational therapy, speech language and neuropsychological evaluations. Testimony of Mother; exhibit P-14.

41. On June 23, 2003, Parents had a behavioral optometric vision evaluation of Student by Wilbert Libbey , OD, FCOVD. The evaluation report made a functional diagnosis of Convergence Excess and found, among other weaknesses, that Student has a “midline jump on horizontal pursuits”. The report opined that Student “would benefit from Vision Therapy at some point to improve his visual abilities”, which is an indicator of “bilateral integration issues with his fine motor neurology.” The report further indicated that Student “would be best served by beginning his remedial care with Occupational Therapy. An Occupational Therapist in [Student’s] case, will have the greatest impact on making positive changes to benefit his overall performance.” Mother testified that she hand-delivered this report to Regina Navia (Sudbury occupational therapist) soon after receiving it and prior to mid-August 2003. Mother also testified that Parents had not requested that Sudbury pay for the cost of this evaluation until Parents sought reimbursement as part of their BSEA Hearing Request. Exhibit P-15.

42. On June 25, July 10, 15 and 26, 2003, Parents had a multidisciplinary evaluation of Student by Children’s Therapy Associates (CTA) of Natick, MA. The evaluation report was received by Sudbury from Parents on September 25, 2003. Testimony of Dixson; exhibit P-29.

43. The CTA evaluation included neuropsychological, speech language and occupational therapy assessments. The case manager for the evaluation was Joann Frankhouser, PsyD, pediatric neuropsychologist. The evaluation report (exhibit P-16) indicates that Parents sought the evaluation to provide information regarding Student’s cognitive strengths/weaknesses, communication and motor/sensory functioning, and learning processing style to assist with diagnostic clarification and treatment recommendations. Parents met with Dr. Frankhouser in mid-August 2003 to review the results of the evaluation. Testimony of Mother.

44. The multidisciplinary evaluation summarized Student’s special education needs as follows:

Taken together, [Student] exhibits a profile of learning disabilities characterized by receptive and expressive language difficulties, auditory processing weaknesses, vulnerabilities in phonological processing, weaknesses in sensory processing, and higher level processing issues seen in poor memory performance and difficulties on learning tasks secondary to reduced working memory, organization, and strategy use to support effective encoding and retrieval of information. In addition, [Student’s] problems with strategy use appear to extend to his efforts to cope with frustration, which easily break down leading him to become overwhelmed and withdraw or “shut-down”. . . . In addition, he does not appear to be making effective progress in the curriculum at this time due to his disabilities.

Exhibit P-16.

45. With this profile in mind, the evaluation report made a number of recommendations, including the following:

· Student will need support to acquire the mechanics of reading, and should receive small-group instruction by a teacher with expertise in working with students with learning disabilities. There should be a focus on developing phonological processing skills and automaticity. [Page 17 of report.]

· It will be important that his reading curriculum be consistent, that is he should not follow one method in class and another in the special reading group/tutoring that he receives. [Page 17 of report.]

· Student should receive speech and language therapy three times per week. [Page 18 of report.]

· A vigorous approach to address Student’s word finding difficulties is strongly recommended. [Page 18 of report.]

· Student requires an intensive phonemic awareness intervention program that could be provided by either the speech and language pathologist or the reading specialist. A program such as Lindamood Bell’s LIPS program would provide the kind of intensity Student needs at this time in order to understand how to encode speech sounds for literacy purposes. [Page 19 of report.]

· It is strongly recommended that Student receive direct occupational therapy services utilizing a sensory integrative approach. Student’s most severe deficit in the area of sensory integration was design copying. Ideally, Student would receive occupational therapy in a private clinic for one hour (45 minutes direct therapy, 15 minutes parent consultation/documentation), one time per week, in addition to any school-based services. [Page 20 of report.]

46. Parents did not request that Sudbury pay for the cost of this evaluation until Parents sought reimbursement as part of their BSEA Hearing Request. Testimony of Mother, Dixson; exhibit P-16.

47. In the fall of 2003 (starting in September) Student continued to receive occupational therapy services from Sudbury through Regina Navia (Sudbury occupational therapist). Mother testified that Ms. Navia believed that a home component of occupational therapy should be provided, Parents’ private evaluation recommended additional occupational therapy, and Mother requested it, but no home component or other additional occupational therapy was provided. Mother explained that Parents therefore retained a private occupational therapist (Katina Lawdis) to provide Student with an extensive home component of occupational therapy services. Parents are seeking reimbursement of 6 hours of OT services for this purpose.

48. Ms. Dixson testified that until she reviewed the documents in the instant dispute and heard Mother’s testimony, she did not know that Parents had obtained these services or that they were seeking reimbursement from Sudbury for them. Ms. Dixson explained that she was not aware of any written recommendation from Ms. Navia regarding a home component for OT services and that there had been no Team meeting to discuss this. Ms. Dixson further testified that the home component recommended by Ms. Navia did not require services or training for Parents, but rather included only written materials for Parents so that they could help their son perform certain exercises. Testimony of Mother, Dixson; exhibits P-52 (page 4), P-54 (September 13, 2003 e-mail from Navia to Mother).

49. From September 2003 through July 2004, Katina Lawdis (Parents’ private occupational therapist) provided monthly progress summaries of her work with Student. On October 3, 2003, Ms. Lawdis did an occupational therapy observation of Student in his 1 st grade classroom at the Loring School, with a written report of the observation (exhibit P-10). In her report, Ms. Lawdis noted that in a group activity called Circle Time, Student’s behaviors included hugging his knees and rocking back and forth, sitting in a crouched position, laying on the floor, crawling on the floor, making punching motions in the air, turning away from the group, scooting to various areas randomly and banging his fists on the floor. Exhibit P-10.

50. Ms. Lawdis’ observation report concluded:

Lack of a substantially separate letter teaching format to address dyslexia is apparent. Given this, letter presentation appears overwhelming. The methodology for teaching is incongruent with current therapy strategies. Issues of attention and compliance are evident in the group setting.

Exhibit P-10.

51. Mother testified that in response to this observation by Ms. Lawdis and her concerns regarding Sudbury’s teaching Student his letters through the particular methodology being utilized in the classroom, Sudbury stopped teaching Student handwriting without discussing or deciding what should be done next. Mother stated that Sudbury did not subsequently address this area of need through an alternative methodology. However, Ms. Dixson testified that the only thing that was discontinued was a particular handwriting program and that the teacher continued to address Student’s handwriting needs in alternate ways. Testimony of Mother, Dixson; exhibit P-8.

52. Parents did not request that Sudbury pay for the cost of an assessment by Ms. Lawdis until Parents sought reimbursement as part of their BSEA Hearing Request. Testimony of Mother, Dixson.

53. On September 19 and 26, 2003, Elizabeth Shealy , PT (Sudbury physical therapist) conducted a physical therapy evaluation of Student. The written evaluation report noted that Student is a happy child who moves around the school environment without restriction from physical limitations, but noted Student’s difficulty sitting in class and poor posture. The evaluation found that Student had mild proximal instability with weak trunk extensors that may be contributing to his difficulty sitting comfortably. The evaluation report recommended a physical therapy consult to the classroom teacher to address Student’s postural needs in the classroom, a consult to the occupational therapist to incorporate trunk strengthening exercises into therapy sessions, and a consult to Parents to create a home exercise program to strengthen trunk extensor muscles and stretch hamstrings. Exhibit S-9.

54. Ms. Dixson testified that the home consult services recommended in this evaluation require only that certain written information be provided to Parents, explaining what exercises should be done, rather than requiring that a physical therapist provide services within the home.

55. On October 3, 2003 and again on October 9, 2003, the IEP Team met to review the multidisciplinary evaluation (and recommendations therein) by Children’s Therapy Associates and the physical therapy evaluation by Ms. Shealy, and also to discuss the rejected portions of the previous IEP. Laura Becker (Student’s private speech language pathologist) attended the meeting and, although she had no written report for the Team to review, Dr. Becker shared her evaluation findings and her belief that Student has a severe phonological weakness that would impact upon his reading, warranting a small, language-based classroom for Student. Testimony of Mother, Becker, Dixson.

56. As a result of these meetings, a revised IEP was developed for the period 9/3/03 to 6/6/04 , essentially replacing the earlier IEP (exhibits P-8, S-7) for this same time period. Exhibits S-10. The revised IEP proposed the same services as the previous IEP for this time period, with the following additional direct and indirect services:

· With respect to direct special education, an additional 30 minutes per week of services in each of the following: writing (increased to 30 minutes, 3 times per week), mathematics (increased to 30 minutes, 2 times per week) and occupational therapy (increased to 30 minutes, 2 times per week).

· With respect to special education services to be provided within the general education classroom, an increase of academic support to 90 minutes 5 times each week instead of academic support of 60 minutes 5 times per week in the previous IEP.

· With respect to consultation, an addition of Parent consultation with the Team for 30 minutes, once per month.

The revised IEP also included an additional goal (goal # 10) entitled “Sensory Processing”, to be addressed in part through occupational therapy. Exhibit S-10.

57. Mother testified that Ms. Dixson stated during the Team meeting that Student could learn in the general education with pull-outs. Mother stated that she believed that this approach that is reflected within the IEP – a continuation of a pull-out model where her son would receive special education services outside of his regular education classes – was fragmented and not appropriate for her son. She also expressed concern that her son’s reading program was not identified in the IEP and questioned whether Sudbury was actually using the reading program (Project Read) that Sudbury reported was being used with her son. Testimony of Mother.

58. Mother testified that her son did not receive the additional 30 minutes per week of occupational therapy that was included in the revised IEP.

59. Mother testified that at the October 3, 2003 Team meeting, when the physical therapy evaluation by Ms. Shelley was discussed, Parents pointed out that Student’s age on the evaluation was incorrect (listed as 69 months instead of 81 months). By letter of October 7, 2005, Ms. Shelley sent a letter to Parents enclosing an amended PT evaluation report, with Student’s age corrected to 81 months and with no change in the recommendations. The amended report included new language indicating that the standardized test (PDMS-2) used in the evaluation measures a child’s motor abilities from 0 to 72 months and Student’s age exceeds this limit, and the report also notes (on the second-to-last page) that the PDMS-2 scores “are to be viewed with caution” because Student exceeds the 72 month age limit for the test. Furthermore, the evaluation report stated that the test results are nevertheless “relevant for providing information about his foundation gross motor skills.” Testimony of Mother; exhibit P-24.

60. Mother testified that she believed the evaluation to be incorrect because it was scored on the wrong age and in correspondence to Sudbury, requested that the evaluation be re-scored. She indicated that Ms. Shelley agreed that the evaluation needed to be re-scored, but Mother later learned that the evaluation could not be re-scored; and apparently it was not re-scored. Ms. Dixson testified that because the test instrument was not normed on Student’s age, it could not be re-scored, but that Ms. Shelley believed the evaluation recommendations were appropriate. Ms. Dixson explained that because of the concerns regarding this evaluation, she authorized and paid for an independent PT evaluation, which was conducted by Spaulding Rehabilitation (discussed below). Testimony of Mother, Dixson.

61. Mother testified that Sudbury implemented many, but not all, of the recommendations from the multidisciplinary evaluation conducted by Children’s Therapy Associates. She explained that, most importantly, Sudbury did not implement an intensive program to develop Student’s phonological skills and offered only one-half hour of occupational therapy each week. She also noted that, in contravention of the evaluation report, Student’s program at CASE Collaborative implemented multiple (as compared to a single) reading programs. Testimony of Mother.

62. Mother testified that by mid-October 2003, she was noticing changes in her son’s behavior at home. She reported that he was beginning to have crying episodes in the morning because he did not want to go to school. She believed that her son was becoming resistant to school not because he did not want to go to school but rather because he could not do the schoolwork. Mother testified that she reported her son’s behavior to Sudbury orally and in writing. Testimony of Mother.

63. In a letter dated October 14, 2003 from Parents to Kelly Strauss (Student’s special education teacher), Parents began by stating:

Effective immediately you must stop using reading, writing and mathematics programs that are totally inappropriate for [Student’s] known disabilities. Your failure to define and coordinate his reading, writing and mathematics programs is causing him extreme stress and anxiety.

The letter further stated:

Contrary to what Deborah Dixson, SPED Administrator, has said, it is evident that you are not using Project Read or any other specialized reading program. Your lack of rigor and appropriate specialized programs has the above effects of causing confusion, anxiety, stress and low self-esteem.

Exhibit P-31. Ms. Dixson testified that, to her knowledge, Ms. Strauss was complying with Student’s IEP.

64. Mother testified that this letter reflected her being upset that Student did not yet know his letter sounds and other requisite skills for reading, that her son was coming home from school with homework that he is not able to do, that her son did not appear to be working on Project Read, that her son was receiving a “mish mash” of fragmented services that were not effective, and that all of this was occurring after the October IEP Teams meetings when Parents’ concerns regarding these issues were discussed. Ms. Dixson testified that this letter undermined staff’s efforts to serve Student appropriately. Testimony of Mother, Dixson.

65. In a letter dated October 14, 2003 from Parents to John Brackett (Sudbury’s Superintendent of Schools), the Parents outlined all of their concerns, at this time, regarding the education of their son. Parents did not copy this letter to Ms. Dixson. Soon thereafter, Parents met with Dr. Brackett. Mother reported that it was a very collegial meeting, with Parents requesting an out-of-district placement in order to provide their son with a small language-based classroom that did not exist within the Sudbury school system. Mother testified that Dr. Brackett asked that Parents set aside their past differences with the School District and consider any in-district, as well as out-of-district, placement options; and Parents agreed to do so. Ms. Dixson testified that after the meeting, Dr. Brackett suggested to Ms. Dixson that the relationship between Sudbury and Parents had deteriorated to the point that it would be best to place Student in an out-of-district placement. Testimony of Mother, Dixson.

66. On October 15, 2003, Sudbury received a copy of Dr. Becker’s evaluation report. Testimony of Dixson; exhibit P-31.

67. In a letter dated October 25, 2003 to Ms. Dixson, Parents’ educational consultant (Fran Perlman, MEd) noted at the outset that she has been a public school teacher for over 30 years and generally supports education of children in their own public school, but that she does not think that this can or should be done with Student, and she noted her concern with the program that she anticipated Sudbury would offer. In addition, Ms. Perlman explained:

I am concerned that school personnel do not fully realize the extent of [Student’s] special needs. [Student] is not simply a child with a language based learning disability. He is a complex language learning disabled child with numerous additional neurological weaknesses that impact his ability to learn in the mainstream. In addition, other personality traits add to his complexity.

Due to [Student’s] language disabilities and working memory weaknesses, he will require a structured systematic multi sensory approach in order to lean to read. Orton Gillingham or The Wilson Reading Program are the two best programs in my professional opinion. [Student] should be taught alone or in a group with no more than one other child. In addition, he will need a highly experienced teacher who understands the weaknesses of the program and how to supplement it as well as how to adapt the program for [Student’s] unique needs and strengths.

Exhibit S-60. Mother testified that when this letter was written, she agreed that Orton Gillingham and The Wilson Reading Program would be the two best programs for her son.

68. On October 31, 2003, apparently as a result of Parents’ meeting with Dr. Brackett earlier in the month, Parents were invited to and did attend a meeting with Ms. Dixson, Ms. Coyne-Gordon (Team chairperson), Ms. Dean (Sudbury out-of-district coordinator and team chairperson), Mr. Eckel (Principal), Ms. Perlman (Parents’ educational consultant) and Dr. Becker to discuss Student’s education needs and how they should be met. Ms. Dean met Parents for the first time at this meeting, as she was brought in by Sudbury to find an out-of-district placement for Student.

69. Mother testified that the meeting began with Ms. Dixson stating that the relationship between Sudbury and Parents had irretrievably broken down; Sudbury distributed the October IEP. Ms. Dixson said that Sudbury stood by this IEP as being appropriate, but that Sudbury nevertheless would seek to place Student in an out-of-district placement. Ms. Dixson testified that she believed, at this point in time from the information she was receiving, that Student was making progress in his current program, that his needs could continue to be appropriately met within Sudbury, that Sudbury had engaged in “Herculean” efforts to educate Student, but that Sudbury staff were being undermined by Parents and that, as a result, the current placement at Loring could not be successful. Testimony of Mother, Dixson.

70. In October 2003 Dr. Becker called Dr. Honore Weiner, the Program Administrator of the CASE Collaborative program for students with language-based learning disabilities located at the Shaker Elementary School. The Collaborative is a consortium of thirteen school districts for the purpose of meeting the needs of low-incidence populations. Dr. Weiner, who holds a master’s degree in speech pathology and audiology and a doctorate in special education (received in 1980), has been the Program Administrator for this particular program since 1974 and in that capacity, has overall responsibility for all aspects of the program. Testimony of Weiner.

71. During the telephone call between Dr. Becker and Dr. Weiner, Dr. Becker spoke about Student and his need for a placement appropriate for a child with a language-based learning disability. According to Dr. Weiner, Dr. Becker stated that she thought that Dr. Weiner’s program would be an excellent match for Student. Testimony of Weiner.

72. By letters dated November 3 and 13, 2003, Sudbury sent admission referral letters to both public and private schools (The Carroll School, Nixon School which is a public school in Sudbury, EDCO Collaborative, LABBB Collaborative, CASE Collaborative, Accept Educational Collaborative) indicating that Sudbury was looking for an alternative educational setting for Student to attend as soon as possible. Exhibits S-11 through S-16.

73. By letter of November 17, 2003 to Ms. Dean, The Carroll School denied admission to Student. By letter of November 21, 2003 to Parents, Ms. Dean wrote that, based on information received from or about three collaboratives – ACCEPT, EDCO and LABB – these placements were not appropriate for Student. Exhibit S-18.

74. By letter of November 20, 2003 from Parents to Ms. Dixson, Parents indicated that at the October 31 st meeting, it was agreed to pursue out-of-district placement options for their son in a language-based classroom. The letter further states that upon reviewing the IEP generated from the October 2003 Team meetings, Parents observed that the IEP does not align with the proposed out-of-district placements and therefore decided to defer their response to the IEP until a new placement was identified, and then to discuss the IEP within the context of that placement. Testimony of Mother; exhibit S-17.

75. By letter dated November 25, 2003 from Ms. Dixson to Parents, the Parents were provided progress reports for their son dated November 17, 2003. Parents found these reports inaccurate (in that, in some respects, they inflated skills that Student was exhibiting both at home and with Parents’ private service providers), inappropriate (in that they related to the October 2003 IEP that Parents had not accepted), and incomplete (in that there was no progress report regarding phonemic awareness, apparently because Parents did not accept the proposed goal for phonemic awareness). Testimony of Mother; exhibit P-28.

76. Ms. Dixson testified that after speaking with Kelly Strauss, she believes that Student was provided the services of a sped assistant, the reading services with a special educator and mathematics with a special educator, as set forth in the IEP, for the period September through December 2003. Ms. Dixson also stated that prior to the Hearing Request in the instant dispute, Parents had not notified Sudbury orally or in writing that they believed that these services were not provided.

77. On December 15, 2003, an IEP Team meeting was held at the CASE Collaborative where Student had been accepted for admission into the program at the Shaker Elementary School, administered by Dr. Weiner. Ms. Dixson testified that Sudbury had decided to make a financial commitment for Student to attend CASE because Sudbury believed the placement to be appropriate to address Student’s educational needs although more restrictive than necessary to meet those needs.

F. January to June 2004

IEP for CASE placement

78. An IEP was generated from the December meeting, for the period 1/5/04 to 1/5/05, placing Student at CASE. This revised IEP called for placement in a substantially separate program at the CASE Collaborative with the following direct special education services:

· Language-based specialized classroom by the teacher and instructional assistant for 5 days per week.

· Speech targets by the teacher or instructional assistant for 5 minutes each day.

· Speech/auditory therapy by the speech language therapist for 30 minutes, once per week.

· Auditory group by the speech language therapist for 30 minutes, twice per week.

· Whole class language group by the speech language therapist and teacher for 30 minutes, 3 times per week.

· Small group language by the speech language therapist for 30 minutes, twice per week.

· Social skills group by the counselor for 45 minutes, once per week.

· Occupational therapy by occupational therapy staff for 30 minutes, twice per week.

The following consultation services were also included within the IEP:

· Speech/language/auditory by the speech language therapist weekly.

· Social skills by the counselor as needed.

· Occupational therapy by occupational therapy staff as needed.

Other than these changes, the IEP remained the same as the previous IEP for the period September 2003 to June 2004. The 1/5/04 to 1/5/05 IEP, including the placement page, was accepted in full by Father on December 17, 2003. Exhibit P-7, S-19.

79. Mother testified that notwithstanding their consent to the IEP, she had the following concerns about it. She noted that no reading program was specified in the IEP (Student eventually received 30 minutes, 4 times each week of the Wilson Reading program), occupational therapy services had been reduced from the previous IEP, the IEP included 4 goals that Parents had previously rejected, and Parents were concerned with some of the IEP goals (for example, speech language goals). CASE believed that the IEP was appropriate to begin working with Student. CASE staff suggested that they have an opportunity to work with Student prior to revising the IEP. There was an understanding during the December 2003 Team meeting that the IEP Team would re-convene in March 2003 to revise the IEP, and that Parents consented to the IEP in reliance upon this agreement. Testimony of Mother, Dean.

80. Dr. Weiner testified that she had no concerns regarding the appropriateness of the goals within Student’s IEP. She believed that the IEP was a very effective document, with which CASE could work with Student. She noted that, based on her understanding of an IEP which has been informed by Massachusetts Department of Education training, the IEP is intended to be an outline and point of reference, rather than a lesson plan. Testimony of Weiner.

Services at the CASE placement

81. Notwithstanding these concerns, Parents were happy that their son would be at CASE. Mother explained that on the basis of what Sudbury and CASE had represented to her, she believed that CASE would provide the special education services that her son needed. This is further reflected in an e-mail from Mother to Honore Weiner. Testimony of Mother; exhibit S-66 (1 st page).

82. The CASE program at the Shaker Elementary School is a substantially separate program that allows students to participate with regular education students at various times of the day – for example, during lunch and recess, as well as during the specials (for example, art and music). The program is language-based in that there is a systematic and structured language framework that is consistent through all of the instruction. All staff utilize consistent instructional strategies – for example, spiraling information, scaffolding, pre-teaching and review. The students in this program all have at least average cognitive ability and the primary deficits of all of the children are language and learning disabilities. Testimony of Weiner.

83. Dr. Weiner, the CASE program administrator for the Shaker Elementary School program, testified that she reviewed Dr. Becker’s evaluation (exhibit S-58) and agreed with Dr. Becker’s assessment of Student. She noted that, from Dr. Becker’s evaluation, although Student has a relative strength in receptive language, he has a deficit in working memory that makes it difficult to store, access and retrieve information, and this would likely contribute to inconsistent performance. She also noted, from Dr. Becker’s report, that Student has a weakness in auditory discrimination – that is, his ability to readily retain and recall information that is heard. She noted that Student’s phonological skills, at the time of the evaluation, were just beginning to emerge. She explained the importance of rhyming – how we listen to a word and manipulate the phonetics of the word – and Student’s weaknesses in this area.

84. Dr. Weiner testified that Student needs a multi-faceted program that is consistent, predictable and appropriate. She opined that there are different parts to reading – for example, fluency, phonetics and comprehension — and that no single reading program can address each part and do everything that Student requires in order to learn to read. She noted similarly that at the Wisnia and Associates program (that Student began in June 2004) there were different parts to their reading program for Student.

85. Dr. Weiner explained in her testimony that the CASE Collaborative program satisfies the recommendations contained within Dr. Becker’s evaluation of Student relative to the kind of program that he needed. Dr. Weiner testified regarding Student’s special education needs, as described in an evaluation by Dr. Becker (exhibit S-58) which evaluation Dr. Weiner believed to be consistent with the Sudbury evaluations that she had read. Dr. Weiner agreed with Dr. Becker’s understanding of Student’s deficits and needs (see discussion of Dr. Becker’s evaluation near the end of the Fact section of this Decision). Dr. Weiner testified that, based on Dr. Becker’s evaluation and the Sudbury evaluations, she believed that Student is the kind of child who would likely be successful and well-served within the CASE program at the Shaker School. Testimony of Weiner.

86. Student began attending CASE on January 5, 2004, which was the first day of the semester. Student’s classroom teacher was Christine Locke. Ms. Locke described Student’s schedule for each day of the week, which is roughly reflected within a written schedule she prepared for Parents (exhibit P-53, last page). She explained that she was Student’s reading teacher and that Student had “significant reading issues”. She stated that it quickly became apparent to her that Student was having difficulty using the Wilson Reading program and that it was not appropriate for him – as a result, she utilized only the earliest step of this program with Student. She explained that she used other programs to develop Student’s reading skills – for example, she used Primary Phonics as a supplemental program, she used guided reading, used a magnet board with letters and used other techniques.

Physical therapy evaluation

87. On January 22, 2004, Parent sought and obtained a private physical therapy evaluation from Spaulding Rehabilitation. Sudbury was billed directly and paid for this evaluation. The evaluation recommended short-term outpatient skilled physical therapy for 4 to 6 visits (60 minute duration of each visit) with emphasis on a home exercise component. Mother testified that she agreed with the findings and recommendations of this evaluation, but they were not implemented in her son’s IEP. Testimony of Mother; exhibits P-24 (3 rd , 4 th , 5 th and 6 th pages), S-63.

March 4, 2004 Team meeting and subsequent communications

88. On March 4, 2004, there was an IEP Team meeting with Parents, CASE staff (including the occupational therapist, speech language pathologist, classroom teacher and program administrator, but not the CASE reading specialist) and Dr. Becker. Mother testified that the Sudbury representative (Ms. Dean) only attended the meeting for the introductions and then left; Ms. Dean testified that she was present for the first 35 to 40 minutes of the meeting. The stated purpose of the meeting was to review Student’s progress and amend the IEP if necessary. Testimony of Mother, Dean; exhibit S-20.

89. Mother testified that at the March Team meeting there was discussion about re-writing the IEP. She stated that CASE staff took the position that re-writing the IEP was not necessary or warranted, and that, in general, Student was doing well at CASE. Mother reported that there was a discussion of summer services and an acknowledgement that they were needed, but since they were the responsibility of Sudbury and Ms. Dean had left the meeting by that time, there could be no substantive discussion of summer services during the meeting. Ms. Dean agreed, in her testimony, that at the meeting there was an acknowledgement that summer services should be provided but no discussion of what those summer services would be. As a result of the March 4, 2004 Team meeting, an IEP amendment was generated that included an additional social/emotional goal. Mother testified that she and her husband did not sign an acceptance of the IEP amendment. Testimony of Mother, Dean; exhibit P-28.

90. Ms. Dean testified that approximately one month after the March 4, 2004 Team meeting, she received feedback from CASE staff as to what they would recommend for 2004 summer services, she received feedback from Parents, and she prepared an amendment to the IEP that more clearly specified what services would be provided during the summer. This amendment, describing services for the summer of 2004, appeared in the IEP for 6/04 to 6/05 (described below). She explained that she believed that Ms. Lawdis and Dr. Becker were available to provide some of these summer services. Testimony of Dean; exhibit S-21.

91. By letter of April 15, 2004, CASE sent Parents progress reports for the period 1/5/04 to 4/5/04. The reports noted Student’s progress with respect to each of the IEP goals. Mother testified that although she thought that some of the reported progress was overstated, she agreed with some of the judgments reflected in the reports and was relieved in that she believed that CASE at least had a better understanding of Student’s progress than had Sudbury and understood that Student was not on track to reach some of his IEP goals. Testimony of Mother; exhibit P-28.

92. In an April 17, 2004 e-mail to Dr. Weiner (CASE program administrator), Mother indicated her appreciation for the work that CASE was doing with her son, and noted the development of some auditory discrimination skills. The e-mail noted Mother’s agreement with CASE that her son’s rate of progress was insufficient to meet his reading concepts of print/decoding and written expression goals. The e-mail also expressed Mother’s concerns regarding her son’s not knowing the alphabet and other skills necessary for reading; Mother stated her belief that a systematic, intense and clinically-validated program for learning the alphabet and phonemic skills was needed; and Mother made clear her particular concern regarding what she believed was a lack of clarity, validity and reporting regarding occupational therapy skills, including visual skills that she understood to be key to reading development. In the e-mail, Mother also expressed concern about what she believed was a lack of measurable goals and benchmarks, and a lack of specificity regarding approaches/programs in the IEP and further stated:

For example, the Sudbury TEAM in November of 2003 said that [Student] was going to achieve, by June 2004, the very same goals that the CASE TEAM says is not possible to determine whether the rate of progress is sufficient or that the progress appears to be insufficient to suggest that the goals will be met by January 2005.

93. Mother testified that, notwithstanding Parents’ concerns as described in the above e-mail, at this time she believed that there was an amicable relationship between Parents and CASE, that Parents respected the work done by CASE staff, and that Parents believed that CASE would do what was necessary to work effectively with their son. Testimony of Mother; exhibit S-66.

94. By e-mail of April 26, 2004, Dr. Weiner replied to Mother, stating CASE’s view that the IEP goals and benchmarks were appropriate and discussing her review of a reading program for Student and the involvement of a reading specialist. By e-mail of the same day, Mother responded, thanking Dr. Weiner and also emphasizing Parents’ concern that Student has a severe phonological system delay that must be addressed by an intense, systematic and clinically validated program. Mother also noted her understanding from her experts (for example, Dr. Stevens) that a reading program such as Wilson or the Wilson Fundations would be too difficult because her son did not have the requisite phonological skills – in other words, it would be premature for her son to use these programs. Exhibit S-66.

95. By e-mail of April 30, 2004, Dr. Weiner responded to Mother, stating that Student is receiving a multi-faceted reading program using instructional materials that are validated in research and current practice, and described the structured, multi-sensory approach to phonics being used with Student. Dr. Weiner also mentioned a Telian reading program that could be started with Student in September. By e-mail of May 7, 2004, Mother responded to Dr. Weiner at length, expressing the need for a systematic phonemic awareness program, and expressing her continuing concerns about Student’s progress and the goals and benchmarks within the IEP. Mother testified that at this time, she believed that there were points of agreement, disagreement and uncertainty regarding CASE, but she continued to believe that CASE would do what was necessary to work effectively with her son. Testimony of Mother; exhibit S-66.

96. By e-mail of May 7, 2004 to Dr. Weiner, Mother described at length and in detail her concerns regarding her son’s progress and IEP. Mother noted that the goals within the current IEP were written by Sudbury to be achieved by June 5, 2003 (end of 1 st grade) and that the IEP does not accurately reflect Student’s current performance levels. She stated her opinion that the IEP should be updated and written more appropriately, and that revising the IEP should not wait until October 2004. Exhibit S-66 (9 th page).

May 14, 2004 Team meeting and subsequent communications

97. By letter of May 7, 2004 to Luan Dean (Sudbury out-of-district coordinator), Mother requested an IEP Team meeting to discuss Student’s progress, identify the causes of his apparent lack of progress, determine what remediations were needed, rewrite the IEP with measurable goals and benchmarks, and address Student’s need for summer services. In the letter, Mother also noted her concern regarding Student’s lack of effective progress. Exhibit P-35.

98. On May 14, 2004, the IEP Team met at Parents’ request but only for one hour. Ms. Dean testified that, on short notice, she was able to schedule only an hour for a Team meeting, with the Team meeting occurring during lunch. The stated purpose of the Team meeting (as reflected within Sudbury’s written notice of the Team meeting) was “Parent request to address various concerns.” Ms. Locke and Ms. Dean understood the purpose of the meeting to review Student’s progress and Parents’ concerns about this progress as well as Parents’ concerns regarding the IEP. Ms Dean testified that she understood that the purpose of the meeting did not include re-writing the IEP. Testimony of Dean, Locke; exhibit S-20.

99. Mother testified that it was her expectation that the IEP would be rewritten at this Team meeting (consistent with her earlier letter to Ms. Dean), but that at the meeting, this did not occur apparently because CASE and Sudbury staff did not want to re-consider the IEP, nor was the issue of placement discussed at any time. Mother testified that the meeting was used to discuss Student’s progress, with CASE staff reporting that Student was making effective progress and that the IEP was meeting his needs. Mother noted her concerns at this time that her son was not learning and that he was falling apart emotionally/behaviorally.

100. Ms. Locke (Student’s classroom teacher) attended the May 14 th Team meeting and testified that the purpose of the meeting was to review Student’s performance. She stated that it was not the purpose of the Team meeting to revise or re-write Student’s IEP.

101. Dr. Weiner, who attended the meeting, testified that at the meeting, there was a discussion of Student’s current performance, there was a clarification of his goals and objectives in the IEP (and some of the goals and objectives were discussed), and there was a clarification of what strategies were being implemented by CASE staff. Dr. Weiner explained that there was no discussion of educational services, except that it was mentioned that in September there would be the addition of a reading specialist providing direct services four times each week and that she would be using the Telian reading program. Dr. Weiner noted that with respect to the development of a revised IEP, Parents stated that they hoped that a new IEP could be developed that would address their concerns.

102. Ms. Dean testified that during the meeting it was agreed to increase occupational therapy and there was discussion of services from a reading specialist being added in the fall. Neither the reading specialist nor the occupational therapist was present at the meeting. Ms. Dean left the meeting believing that an amendment to the IEP would be needed (to reflect these two changes) and that a new IEP would be written but not until the fall of 2004 after the Team had an opportunity to consider Student’s progress during the summer. Testimony of Mother, Dean.

103. Ms. Dean testified that no one attending the May 14, 2004 Team meeting understood that the purpose of the meeting was to re-write the IEP, and that in order to re-write an IEP, a Team meeting for this purpose must be held. However, she explained that she believed that everything that needed to be discussed to develop a new IEP had been discussed at the May 14 th meeting. Testimony of Dean.

104. Dr. Weiner testified that after the Team meeting, she felt that it would be beneficial to revise the IEP to meet the Parents’ expectations and concerns. She noted that it had been previously discussed with Sudbury staff that a new IEP should be developed in the fall for the next school year, based on Student’s progress, including his progress during the summer.

105. After the May Team meeting, Dr. Weiner discussed Parents’ concerns with other CASE staff. A decision was then made by CASE staff to revise the IEP. This is reflected in a May 17, 2004 e-mail from Dr. Weiner to Mother indicating appreciation for the opportunity to discuss Student’s needs and progress at the IEP Team meeting. The e-mail then stated that CASE staff discussed Parents’ concerns after the May 14 th Team meeting and had decided that a new IEP should be drafted based on Student’s specific abilities and progress to date and the methods and materials that have been effective, with the hope that the new IEP would resolve points of disagreement, provide a solid reference point for everyone and secure a more positive relationship among the Team members. Dr. Weiner further wrote that staff would be working to develop a new IEP for the period 6/04 to 6/05 and that the IEP would include a change of services (beginning in September), appropriate goals and benchmarks, as well as goals that could be addressed during the summer. Mother wrote back to Dr. Weiner on the same day, expressing her thanks and stating that a “new IEP based on your description . . . will indeed resolve what have been our points of concern.” Testimony of Dean, Weiner; exhibit S-66.

106. Dr. Weiner testified that the revised IEP was developed utilizing the discussion at the May 14, 2004 Team meeting, as well as information from e-mail messages from Parents. Dr. Weiner stated that she believed that the new IEP reflected appropriate goals and objectives based upon Student’s current performance.

107. Mother testified that Parents were asked to (and did) prepare statements of Parent Concerns and Visions for the new IEP, and these statements were appended to the IEP prepared by CASE and Sudbury staff. Mother stated that there was no meeting to discuss this new IEP, nor were Parents provided any other opportunity for input into the IEP. Testimony of Mother.

108. By letter of June 4, 2004, Parents received a proposed IEP for the period 6/04 to 6/05. The goals and benchmarks within the new IEP were substantially rewritten. The proposed IEP also included on page 5 of 14 a checked box indicating that Student has educational needs in the area of communication (deaf/hard of hearing students) and includes, on the same page as a listed accommodation, use of field FM system in group instruction. Mother testified that Student has never had communication or hearing deficits, but in her later testimony, Mother acknowledged that an FM amplification system is one of the recommended accommodations in Dr. Becker’s evaluation report. Testimony of Mother; exhibits P-6, S-21, S-58.

In addition, the following direct and consultation services were added to what appeared in the service delivery grid from the previous IEP (for the period 1/5/04 to 1/5/05):

· Reading instruction (direct special education services) by CASE reading specialist for 30 minutes, 4 times per week.

· Reading (direct special education services) by a teacher for 30 minutes, 5 times per week.1

· Occupational therapy in a group (direct special education services) by OT staff for 30 minutes, once per week.

· Reading (consultation services) by a teacher and specialists weekly.

Also, the following language was added to address Student’s summer services:

For the summer of 2004, the Sudbury Public Schools has agreed to fund an amount of money equal to what we would have paid Sudbury’s teachers and therapists to provide 3 hours of reading, 2 hours of speech & language, and one hour of occupational therapy per week for six weeks. Our rate of pay is $35 per hour; based on six hours per week for six weeks this amount equals $1260

The parents have agreed to make arrangements for the professionals who currently work with [Student] to provide these services per the goals of his IEP. At the end of the summer, the parents will provide Sudbury with cancelled checks for payment of these services and Sudbury will reimburse the parents up to $1260. Each professional employed will provide the parents/Sudbury Schools with a brief progress report at the end of the summer which reflects the skills worked upon per [Student’s] IEP.

109. Ms. Dean testified that the revised IEP reflected not only what was discussed during the May 14 th Team meeting but numerous previous communications from Parents explaining Parents’ views and concerns.

110. After receiving the IEP on June 4, 2004, Mother sent an e-mail to Dr. Weiner and Ms. Dean on the same date, as well as a second e-mail on the same date to Ms. Dean, requesting a Team meeting as soon as possible “as the IEP does not adequately address our concerns”. Parents stated in the e-mails that they had not had an opportunity to participate in writing the IEP. Exhibit P-36.

111. The e-mails also pointed out specific concerns – for example, items that were agreed upon such as parent consultation and summer services were not included – and noted a more general concern that the IEP for 2 nd grade “largely appears to be a repetition of his first grade IEP and does not seem to be establishing even kindergarten skills in key areas . . . .” The e-mails also noted that Parents have different impressions (than reflected in the IEP) regarding Student’s current skills. In addition, the e-mails requested speech language testing, occupational therapy testing and testing to “quantitatively asses his reading and mathematics skills so as to define [Student’s] first grade progress”. Mother followed these e-mails with a letter of June 7, 2004 to Ms. Dean, repeating (and adding to) what was written in the e-mails with respect to Parents’ concerns and requests (including their request for a Team meeting as soon as possible). The letter included the additional request for a “full phonological assessment regarding misarticulations including oral motor evaluation”. Exhibit P-36.

112. By e-mail of June 7, 2004 to Ms. Dean with a copy sent to Ms. Dixson, Mother wrote, in part:

As I have indicated in my e-mail messages and in my letter, we did not participate in writing the IEP and it does not address our Vision and Concerns. We do not believe it is close enough for signing. CASE certainly did not have time to address the Concerns that we wrote for the IEP. We did not have any discussions or reviews of draft material for the IEP that was sent, so you should not think that we were part of a team process. As you know, at the last TEAM Meeting on May 14 th , CASE refused to write a new IEP so we did not discuss writing IEP goals and other content. We left the meeting by agreeing to disagree on the writing of a new IEP. It was not until Monday May 17 th that Dr. Weiner sent an e-mail message saying that CASE would rewrite the IEP.

Exhibit P-36. Similar Parents’ views were reflected in a subsequent letter from Parents to Ms. Dean, dated July 12, 2004. Exhibit P-37.

113. Ms. Dixson (Sudbury’s Administrator of Special Education) received the IEP from CASE at the same time that Parents received it. Ms. Dixson signed the IEP with a date of June 7, 2004. Parents did not immediately accept or reject the IEP. Testimony of Mother; exhibits P-6, P-39, S-21.

114. Mother testified that she was advised by Dr. Weiner that no CASE staff (other than Dr. Weiner) would be allowed to speak with Parents and that all communications should be directed to Dr. Weiner. She explained that it seemed clear to her that Parents’ relationships with CASE and Sudbury were breaking down. Testimony of Mother.

115. Dr. Weiner testified that Parents’ expectations regarding staff time had become excessive and that it was taking too much time for staff to respond to Parents’ concerns (typically communicated through e-mails). Dr. Weiner explained that she asked staff not to respond directly to Parents, and that instead all Parents’ requests for information or response be forwarded to Dr. Weiner.

116. By a meeting notice dated June 10, 2004, Sudbury invited Parents to attend an IEP Team meeting on June 16, 2004, which was apparently during the last week of the school year. Sudbury had not checked with Parents to determine whether this would be a convenient meeting time/date. The stated purpose of the Team meeting (as reflected within the written notice for the Team meeting) was “IEP development per parent request”. Exhibits P-36, S-22. Mother responded by e-mail to Ms. Dean with a copy to Dr. Weiner, dated June 14, 2004, stating that Parents received the Team invitation for a meeting on June 16 th at 2:45 PM, but that Parents’ attorney would not be able to attend a meeting at this time and therefore Parents will be unable to attend. Mother testified that no subsequent Team meeting occurred until April 8, 2005. Testimony of Mother; exhibit P-36.

117. Ms. Dean testified that she was away during the summer and not able to schedule a Team meeting. She added that, to her knowledge, no further attempts were made by Sudbury to schedule a Team meeting until the spring of 2005. Testimony of Dean.

Progress from January to June 2004 at the CASE program

118. Mother testified that CASE provided her son with smaller classes, which were therefore better for her son and more focused, but Mother believed that the same methods of instruction were used as had been used with Student at Sudbury’s Loring School. Mother reported that she observed that her son made no progress – for example, regarding ability to do phonics homework and ability to do math – from January 5 th until the next Team meeting, which took place on March 4, 2004. Testimony of Mother, Weiner.

119. Mother testified that from March 4, 2004 to May 4, 2004, her son’s behaviors at home got worse – for example, having breakdowns over not wanting to read and becoming more resistant to going to school — and that her son reported that he did not have any friends at CASE (although Mother believed that he had one friend there). She also testified that at the May 14, 2004 IEP Team meeting, CASE staff reported greater acting out at school, and that she received a May 20, 2004 communication from CASE indicating that her son was curled up in a ball and crying under the table. Mother stated that on advice of Ms. Wisnia, she had her son evaluated by a psychiatrist (Dr. Hauptman) in August 2004. Mother testified that Dr. Hauptman’s opinion was that Student’s difficulties were distress resulting from an incompatible school environment, and that Student’s behavior was secondary to being asked to do things related to school that he was not able to do, with the result that Student was demonstrating anxiety, boredom and frustration. Parents did not request that Sudbury pay for the cost of Dr. Hauptman’s evaluation until Parents sought reimbursement as part of their BSEA Hearing Request. Testimony of Mother, Dixson; exhibit P-17.

120. Mother testified that at the end of June 2004 her son was very frustrated with school and with reading in particular. Mother reported that her son said that he did not want to return to CASE, that there were crying episodes and that if she tried to teach him, he would cry and resist and go under a table. Mother found her son’s behavior to be disturbing. Mother also testified that although her son had completed 1 st grade, he did not know the letters of the alphabet and that he was able to “read” only what he had memorized. Testimony of Mother.

121. Mother testified that, in her opinion, when her son completed 1 st grade in June 2004, there were many questions regarding his skill levels and educational progress. Her objection to many of the progress reports had been that neither Sudbury nor CASE were able to document her son’s skill level and progress, and she was concerned that the progress reports that were completed reflected skills that she did believe were an accurate reflection of her son’s abilities, based on her own observations of her son at home and the observations of her private service providers (for example, Dr. Becker). She explained that she made it clear to Sudbury at various times that Parents wanted Sudbury to do more testing of their son to understand more accurately his skill level and determine his educational progress, and that since Sudbury declined to do this testing, Parents engaged their private service providers to do the testing that Parents believed was necessary for these purposes. Testimony of Mother.

122. Student’s teacher (Ms. Locke) testified that there are a number of skills that are needed to become a reader – for example, phonological processing (awareness of sound-symbol associations); phonics (manipulating sounds); decoding; fluency; and reading comprehension – but that without the foundation of phonological processing, it is not possible to proceed to the other skill areas. She explained that Student was at the level of working to develop his phonological processing skills to understand the sound-symbol associations. She wrote in a progress report that Student was continuing to make progress in his expressive and receptive language, but she testified that Student continued to have difficulty learning the sound-symbol associations and was variable in his abilities in this area. Exhibit S-23.

123. Ms. Locke generally testified with respect to the period of January to June 2004. Ms. Locke testified that when Student first arrived at CASE, he was angry that he was attending this school but quickly he “came around”. She explained that because Student had failed so many times, he “definitely suffered” when it came time to do something difficult, he demonstrated “refusal behavior” – he would say he did not want to do it, and he needed a significant amount of encouragement. She noted that Student was reticent with respect to anything associated with reading.

124. Ms. Locke testified that from January to June 2004, Student made progress. She noted, in particular, that he made progress in math and he was doing better overall, with less acting out behavior over time. She explained that Student’s reading progress was inconsistent.

125. Dr. Weiner testified that throughout the period of January to June 2004, she had been in regular communication with Student’s teacher and speech language pathologist; that usually once each week (and more initially), she was in Student’s classroom observing; and she had a number of communications with Parents, typically through e-mails. Dr. Weiner stated that although Student had a difficult transition into the program, he became invested in the program and developed a close relationship with his teacher. Dr. Weiner noted that Student’s behavior, at times, was difficult or inappropriate and he occasionally resisted schoolwork. Student would become frustrated, with a limited ability to persist with a challenging task. She noted, however, that these difficulties improved over time.

126. Dr. Weiner testified that she observed Student in his classroom on May 14, 2004 and concluded that Student at that time was demonstrating the ability to use reading strategies and that Student was proud of his abilities.

127. Dr. Weiner testified that CASE staff with whom she spoke were generally pleased with Student’s progress over the period from January to June 2004 and they believed that Student was well suited for the program. She also noted that staff were mindful of the areas where Student was developing more slowly – particularly, reading. Dr. Weiner concluded (and it is reflected in an e-mail message from her) that Student made progress in all areas, including language, speech, auditory processing and phonemic skill development, although she stated that phonemic skills remained the most difficult area for Student. Exhibit S-66 (page 14).

128. Further evidence regarding Student’s progress is found within the testimony from Parents’ experts, below, in a separate part of the Fact section of this Decision.

129. Dr. Weiner testified that, in her opinion, both the IEP for the January to June 2004 period and the IEP for the June 2004 to June 2005 period were written to provide services and accommodations that would appropriately address Student’s documented needs. She also noted the mainstream opportunities provided at CASE – that is, to participate in certain activities, as discussed above, with regular education students. Ms. Locke added in her testimony that she believed that the goals that she was responsible for in the IEP for the period January to June 2004 were appropriate for Student, were measurable and included accurate descriptions of Student’s current level of performance.

Implementation of the IEP from January to June 2004

130. Dr. Weiner, Ms. Dixson and Ms. Locke testified that, to their knowledge, the services within Student’s IEP were provided. Dr. Weiner noted that she had no knowledge of physical therapy services since CASE did not have responsibility to provide these services.

G. Summer of 2004

Communications and related activities during the summer of 2004

131. In a series of letters from Parent to Ms. Dixson, all dated July 12, 2004, Parents provided the following notice and requests to Sudbury:

· Parents rejected “the current IEP (now showing effective dates from 1/5/04 to 1/5/05) and previously showing effective dates of 9/3/2003 to 6/6/2004) and the proposed IEP (showing effective dates of 6/04 to 6/05)” for their son.

· Parents rejected the IEPs in part for failure of the IEPs to address occupational therapy skills necessary for reading, writing and other academic abilities. Parents notified Sudbury of their intent to secure services from Katina Lawdis to meet these needs for 60 minutes, once or twice per week at the cost of up to $80 per session, and to seek reimbursement from Sudbury.

· Parents rejected the IEPs in part for failure of the IEPs to address visual perception and motor planning skills necessary for reading, writing and other academic abilities. Parents notified Sudbury of their intent to secure services from Stevens and Associates to meet these needs for 60 minutes, twice or three times per week at the cost of $90 to 120 per session, and to seek reimbursement from Sudbury.

· Parents rejected the IEPs in part for failure of the IEPs to address speech and language skills necessary for reading, writing and other academic abilities. Parents notified Sudbury of their intent to secure services from Laura Becker to meet these needs for 60 minutes, one to three times per week at the cost of up to $200 per session, and to seek reimbursement from Sudbury.

· Parents rejected the IEPs in part for failure of the IEPs to address reading skills. Parents notified Sudbury of their intent to secure services from Katina Lawdis to meet these needs for 60 minutes, three to five times per week at the cost of $70 per session, and to seek reimbursement from Sudbury.

· Parents notified Sudbury that they believe that additional assessments are needed to determine Student’s current performance levels as they affect his need for special education and related services and are necessary to develop goals, objectives and benchmarks. Parents stated that they intend to have the evaluations completed by the following persons and to ask Sudbury for reimbursement:

· · Occupational therapy, Katina Lawdis.

· · Speech and language, Laura Becker.

· · A full phonological assessment, Laura Becker.

· · Reading, Judith Wisnia.

· · Visual perception and motor planning, David Stevens.

· · Academic achievement, Laura Becker, Susan Grant or other educational consultant.

Exhibits P-37, S-24.

132. By letter of July 30, 2004 to Parents, Ms. Dixson advised Parents that she was in receipt of the letter rejecting both the IEP and placement for Student. Exhibits P-6, P-39, S-21.

133. Mother testified that the July 12, 2004 letters, on their face, are not limited to summer services, but she explained that the intent of the letters was only to address summer services and they were written only in the context of requesting summer services. In further support of this view, she explained that at the time the letters were written, Parents were seeking to obtain an educational placement for the 2004-2005 school year from Sudbury rather than through private arrangements with reimbursement from Sudbury. Ms. Dixson testified that she found nothing in these letters that limited Parents’ reimbursement request to the summer.

134. Mother testified that the July 12, 2004 letters were the first time that Parents informed Sudbury that they would be utilizing Dr. Becker (other than orally at a meeting in the fall of 2003), the first time that Parents informed Sudbury that they would be utilizing the Wisnia and Associates program, and the first time that Parents informed Sudbury that they would be requesting reimbursement for evaluations (other than the physical therapy evaluation that was paid for directly by Sudbury). Testimony of Mother.

135. With respect to the evaluations referenced in the July 12, 2004 letter, Mother testified that Ms. Lawdis did some testing of her son that would have been discussed at a Team meeting, but there was no formal evaluation with a written report. Mother further explained that subsequent to October 2003, Dr. Becker also did some testing but no formal evaluation with a written report; that Ms. Wisnia did some testing to determine her son’s weaknesses and inform the service providers regarding what educational services were needed but no formal evaluation with a written report; that Dr. Stevens evaluated her son on June 11, 2004 and that he has routinely evaluated her son every three months but that Parents do not receive any written evaluation reports; and that no academic achievement testing was done. Mother stated that had there been a Team meeting to discuss services and placement for the 2004-2005 school year, Parents would have described and discussed with Sudbury Team members what testing and services were being done at Parents’ initiative.

136. Mother testified that subsequent to Parents’ rejecting all of the IEPs that provided for placement at the CASE Collaborative (see above letters of July 12, 2004), Sudbury never communicated with Parents regarding placement back to Sudbury’s Loring School, where Student had been placed immediately prior to his placement at CASE. Mother testified that Parents considered Loring to be Student’s “stay-put” placement once the IEPs providing for CASE placement had been rejected. Testimony of Mother.

137. Mother testified that when she did not receive an end of the year report card or progress reports for her son, she wrote a letter to Sudbury dated July 12, 2004, requesting these items. By letter of July 21, 2004 from Dr. Weiner, Parents were sent progress reports. Mother testified that, in her opinion, the progress reports were missing relevant descriptions of her son’s progress and that the progress that was reported overstated his actual skills with respect to almost every goal. Testimony of Mother; exhibit P-28.

138. By letter of July 20, 2004 to Ms. Dixson, Parents wrote to confirm their rejection of the placement at CASE for 6/04 to 6/05, and noted that Parents have requested a meeting to discuss the refused placement decision. Parents made clear that their decision applied to both the proposed IEP as well as the IEP for the period 1/5/04 to 1/5/05. Parents further explained in their letter that they had other disagreements with the 6/04-6/05 IEP but since placement for the 2004-2005 school year was of foremost importance, Parents stated that they “would like to defer resolution of those concerns while efforts are being made to secure an appropriate placement.” Exhibits P-38, S-25.

139. Ms. Dixson testified that she did not learn that Parents had rejected the CASE placement until she returned from vacation during the summer of 2004. She explained that she understood the above letter of July 20 th to be a rejection of the 6/04 to 6/05 placement at CASE and that Parents had rejected the previous IEP but that Parents had not rejected the previous placement at CASE that began in January 2004.

140. Ms. Dixson testified that typically when parents reject a placement that Sudbury believes to be appropriate, Sudbury stands by that proposed placement. However, she explained that on August 5, 2004, she began looking for an alternative placement for Student because, in her experience, if Parents opposed a placement, it would not likely be successful for Student. Ms. Dixson testified that on August 5 th , she sent an e-mail message to approximately 50 school districts, asking if they might have a placement that would be appropriate for Student, but she received no favorable response. She explained that at this time, she was focusing on other public schools because of the letter from Parents’ attorney with this suggestion. Testimony of Dixson; exhibit S-28.

141. By a similar letter of July 20, 2004 from Parents’ attorney (Tim Sindelar) to Sudbury’s attorney (Regina Tate), Parents’ attorney rejected placement in the 6/04 to 6/05 IEP and withdrew consent to the CASE placement in the 1/5/04 IEP, and noted that Parents have other disagreements with the 6/04-6/05 IEP. The letter also explained what services Parents were seeking and expressed hope that an appropriate program could be secured in Sudbury or in a nearby public school district. Finally, the letter requested an opportunity to meet with Ms. Dixson and other relevant Sudbury staff as soon as possible to discuss the issue of placement. Exhibit P-38.

142. Mother testified that in July 2004, Parents were willing to explore any public or private placement that Sudbury would propose, and that she thought that a public school placement would be most plausible. She explained that after rejecting CASE and without a Team meeting, Parents believed that CASE was “off the table” in terms of a placement for their son for the 2004-2005 school year. She stated that the next time that she learned that Sudbury was considering CASE as a placement for the 2004-2005 school year was by letter of November 30, 2004 from Sudbury’s attorney to Parents’ attorney. Testimony of Mother; exhibit P-43.

143. There followed a series of letters between Parents’ attorney (Sindelar) and Sudbury’s attorneys (Tate, Gallant), beginning with a letter from Parents’ attorney dated August 3, 2004. This letter of August 3 rd expressed significant concern that a placement be identified as quickly as possible so that Student would have a program to attend at the beginning of the 2004-2005 school year. The letter also requested that Sudbury consider tuitioning Student into a language-based classroom in the Willard School, which is within the Concord school district. Exhibits P-40, S-28.

144. By letter of August 9, 2004, Sudbury’s attorney responded to Parents’ attorney, stating that Concord would not permit students from another city or town to attend its Willard School. The letter further said that Ms. Dixson had made inquiries to other nearby communities to determine if there are any other appropriate programs that might consider Student. Exhibits P-40, S-29.

145. A letter dated August 19, 2004 from Parents’ attorney repeated concerns expressed in the August 3 rd letter and further noted that Parents had arranged for summer services from Ms. Wisnia, Dr. Becker, Dr. Sevens and Ms. Lawdis and if no appropriate placement was identified by Sudbury for the beginning of the 2004-2005 school year, Parents may need to put together an interim program that continues these services and in that event, would be seeking payment for these services from Sudbury. This letter also noted that Parents understood that an appropriate program for Student might be available in Acton, Arlington, Natick and Newton school districts, and requested that Sudbury determine if any of these programs might be workable for Student. Exhibit P-40.

146. In a letter of August 23, 2004, Parents’ attorney confirmed that since no appropriate program was available for Student, Parents would be securing the services of the providers described in the August 19, 2004 letter for the beginning of the school year, and that Parents would be seeking reimbursement from Sudbury. Exhibit P-40.

147. By letter of August 25, 2004 from Luan Dean (Sudbury out-of-district coordinator), Sudbury advised Parents that Ms. Dixson had contacted a number of school districts and educational collaboratives regarding possible programs for Student. The letter also requested permission to send a referral packet to The Learning Prep School in Newton. Exhibit P-40.

Services provided during the summer of 2004

148. Mother testified that because there had been no Team meeting to determine what Student’s summer services should be, Parents were left with no option but to decide themselves what those services should be and to make arrangements for them. She stated that she therefore proceeded to arrange for and obtain summer services for her son without assistance from Sudbury – reading tutorial services from Wisnia and Associates, occupational therapy from Katina Lawdis, visual skills services from David Stevens and speech language services from Laura Becker. She explained that although Parents had rejected placement and had raised concerns regarding the IEP, they had not rejected Sudbury’s offer to reimburse Parents for summer services, as described within the IEP. Testimony of Mother.

149. During the summer of 2004, Parents arranged and paid for the following services for their son: 12 hours of speech language therapy from Dr. Becker; 15 hours of services from Stevens and Associates; 8 hours of occupational therapy from Katina Lawdis; and 23 hours of services from Wisnia and Associates. Testimony of Parent; exhibit P-52.

150. The content of the summer services is described, below, within the testimony of Parents’ experts.

Progress during the summer of 2004 .

151. Mother testified that by the end of the summer educational services, she was “wonderfully pleased” with what she believed was marked progress being made by her son. She reported that her son was engaged in learning, that he was learning a great deal, and that he was happy, proud and felt successful regarding his education. Testimony of Mother.

152. See also the testimony of Parents’ experts, included within a separate part below, regarding progress during the summer of 2004.

H. 2004 to 2005 School Year

CASE placement

153. Mother testified that when she returned from vacation in August, she found that CASE had sent enrollment material for the 2004-2005 school year, but she did not hear anything from Sudbury regarding a CASE placement. Mother added that just before the first day of school for the 2004-2005 school year, Ms. Dean (Sudbury’s out-of-district coordinator) called her to inquire about transportation to CASE, and Mother replied that they needed to explore other placement options. Mother made clear that she understood that, at this time, a placement at CASE was available to her son for the 2004-2005 school year, but that she did not know whether CASE was available as a placement (and a place kept open for her son) after the beginning of the 2004-2005 school year. Testimony of Mother.

154. Dr. Weiner testified that although she knew that Parents had rejected the most recently proposed IEP, she believed that it was possible that Student would return to CASE in September. She kept a space open for Student through the fall for this purpose. She learned in January or February that it was unlikely that Student would return to CASE. Testimony of Weiner.

Yale evaluation

155. On September 9, 2004, Student was tested as part of a research project on learning and attention at the Yale University School of Medicine. The written report was sent to Parents by letter dated October 21, 2004, and Parents forwarded the report to Sudbury by letter of December 2, 2004. Mother testified that Sudbury did not respond to this letter, nor was an IEP Team meeting scheduled to discuss the evaluation. Parents did not request that Sudbury pay for costs related to this evaluation until Parents sought reimbursement as part of their BSEA Hearing Request. Testimony of Mother, Dixson; exhibit P-13.

156. As reflected in the written report, the Yale testing included assessments in the following areas: cognitive, academic achievement, phonological skills, reading and language, and behavior/attention. The report made the following findings and recommendations:

[Student’s] reading skills are substantially impaired. His weaknesses included phonological deficits, difficulty applying decoding strategies, trouble identifying sight words, below average comprehension, and poor math calculation skills. . . . At this point, he requires consistent, sequential, individual or very small group instruction (from a professional trained in research-based reading programs) to become a fluent reader.

[Student’s] reading program should encompass the following components:

· Systematic and direct instruction in: phonemic awareness (noticing, identifying, and manipulating the sounds of spoken language), phonics (how letter and letter groups represent the sounds of spoken language), sounding out words (decoding), spelling, reading sight words, vocabulary, and reading comprehension strategies .

· Practice in applying these skills in reading and writing.

· Fluency training.

· Enriched language experiences such as listening to, talking about, and telling stories.

Exhibit P-13.

Communications and related activities from September 2004 through May 2005

157. By letter of September 14, 2004 to Sudbury’s attorney, Parents’ attorney noted that he had not received a reply to his August 19 and August 23, 2004 letters, notified Sudbury that Parents have moved ahead to put together a program of services for Student, that Parents are seeking reimbursement from Sudbury for these services and that an IEP Team meeting should be held as soon as possible to discuss the integration of this program of services with additional services in a public school setting. Exhibit P-41.

158. Mother testified that Parents initiated services for their son for 12 weeks with the expectation that no later than 10 days after the beginning of the school year, Parents and Sudbury would work out a school placement for their son. Mother explained that the 12-week program was focused specifically on her son’s phonemic awareness skills and that, after the 12-week program, he would need a full academic program. Testimony of Mother.

159. Ms. Dixson testified that she sent another e-mail message to approximately 65 other school districts, inquiring about a possible placement for Student.

160. By letter of September 27, 2004 to Sudbury’s attorney, Parents’ attorney expressed frustration that nearly a month of school had passed and no reply had been received to his letter of September 14 nor to the two August letters. Parents’ attorney noted that he as well as Parents had requested a Team meeting during which they would hope to resolve the dispute. Two days later, in a letter of September 29, 2004, Parents’ attorney sent to Sudbury’s attorney progress reports from Judith Wisnia and requested a Team meeting to consider these reports as soon as possible. Exhibit P-41.

161. By letter of October 8, 2004 from Ms. Dean, Sudbury made a referral of Student to the Community Therapeutic Day School in Lexington, MA. In a letter responding to Ms. Dean and received by Sudbury on October 18, 2004, Community Therapeutic Day School wrote that it did not currently have space for Student in its program but would be able to set up and run a “comprehensive program” in conjunction with Wisnia and Associates for Student until space becomes available at the Community Therapeutic Day School. Exhibits P-42, S-31, S-32.

162. Mother testified that in November 2004, there was an agreement between the parties that it would not be productive to have a Team meeting while the parties were seeking to determine whether Newton or the Learning Prep School would be options for Student, but by November 23, 2004, Parents were concerned that they had not heard from Sudbury regarding the identification of an appropriate placement. Exhibit P-43. She explained that when they rejected that part of the IEP calling for placement at CASE for the 2004-2005 school year, Parents made clear their desire to have a Team meeting to determine where Student would be going to school for the 2004-2005 school year, and having failed to obtain a Team meeting through their own request, Parents’ attorney made numerous requests for a Team meeting for this purpose. Parents believed that the Team meeting would be the forum for deciding what educational services would be provided for their son for this school year. Testimony of Mother.

163. Ms. Dixson testified that Sudbury’s attorney (Ms. Tate) had advised her that she and Parents’ attorney (Mr. Sindelar) had agreed that from August through November, it would not be useful to have a Team meeting until a placement had been found since, until then, there would not be an appropriate Team to work with (since the only other Team would be the Team that included CASE staff).

164. By letter of November 8, 2004 to Sudbury’s attorney, Parents’ attorney expressed interest in consultation services from Dr. Hauptman of Community Therapeutic Day School to individualize a program that could meet Student’s intense needs for phonemic awareness development and overall language remediation. The letter urged Sudbury to explore this possibility and also noted Parents’ need to resolve this issue as soon as possible because of the uncertainty of their son’s future educational programming. Mother testified that the letter reflected accurately Parents’ concerns at this time. Testimony of Mother; exhibits P-43, S-33.

165. Ms. Dixson testified that Dr. Hauptman called her and offered to coordinate a program for Student since his 12-week program with Wisnia and Associates was ending, and around the same time, Judith Wisnia called her and then sent her materials regarding the Wisnia program (see below). Ms. Dixson stated that she understood that the program that Dr. Hauptman was contemplating would include and take place at Wisnia and Associates.

166. Mother testified that, at this time, Parents were interested and willing to work with Sudbury to develop an educational program within the Sudbury public schools, but that in her opinion, Sudbury indicated its unwillingness to do so through its words and/or failure to follow through with developing such a proposed program. Testimony of Mother.

167. By letter of November 23, 2004 to Sudbury’s attorney, Parents’ attorney expressed concern that he had not received any response to his November 8 th letter, and stated that Parents would be seeking reimbursement for both past and future costs of arranging for private educational services from the vendors referenced by Parents’ attorney in August. Exhibit P-43.

168. Ms. Dixson testified that the only two private schools that would be appropriate for Student and that are within an appropriate distance from Sudbury are Learning Prep School and The Carroll School. She explained that Student was not appropriate for The Carroll School. Testimony of Dixson.

169. By letter of November 30, 2004 to Parents’ attorney, Sudbury’s attorney responded, explaining that Sudbury learned on approximately November 12, 2004 that the Learning Prep School had no space available for Student, and consequently Sudbury had been considering whether to continue supporting the CASE placement or whether Sudbury could review other options. The letter also stated that Sudbury had been trying to engage in discussions with Judith Wisnia regarding her services, and concluded by saying that she would get back to Parents’ attorney as soon as she had spoken with Sudbury. Exhibit P-43.

170. By letter dated December 1, 2004 and received by Sudbury on December 9, 2004, Learning Prep School wrote to Ms. Dean, notifying her that it did not have space for Student in its program. Exhibit S-34.

171. By letter of December 2, 2004, Parents submitted an application for their son to attend the Landmark School in Prides Crossing, MA. Exhibit P-45.

172. By letter of December 13, 2004 to Parents’ attorney, Sudbury’s attorney wrote that she had had the opportunity to speak with Sudbury about Student and, after careful consideration of Mr. Sindelar’s letters, the documents forwarded by Ms. Wisnia and the results of observations of Student at Wisnia and Associates, Sudbury declined to pay for services from Wisnia and Associates and further declined to incorporate these services into an IEP. The letter further took the position that the program being offered by Wisnia and Associates did not provide Student with FAPE, and that the CASE Collaborative program in which Student was placed was appropriate and did provide Student with FAPE. Parents’ attorney responded by letter of January 4, 2005, rejecting Sudbury’s offer of settlement (contained in the December 13 th letter) and stating the full extent of relief that Parents were seeking. Mother testified that this letter was the first time that Parents had requested that Sudbury reimburse Parents for extended day services. Testimony of Mother; exhibits P-46, P-47.

173. Ms. Dean testified that from the fall of 2004 to January 2005, she exhausted all available programs that she knew of, and had been unable to find a placement for Student. She further stated that from September 2004 to June 2005, Sudbury did not explore the possibility of developing a program within Sudbury because Parents had not requested this as an option and because Ms. Dean believed that Parents were not interested in such a program. Testimony of Dean.

174. In a January 5, 2005 letter from Parents to Ms. Dixson, Parents notified Sudbury that they rejected “the current IEP (now showing effective dates from 1/5/04 to 1/5/05 and previously showing effective dates of 9/3/2003 to 6/6/2004) and the proposed IEP (showing effective dates of 6/04 to 6/05)” for their son in part for failure of the IEPs to address speech and language skills necessary for reading and other academic abilities. Parents notified Sudbury of their intent to start Student on the Fast ForWord program to meet his needs for developing fundamental language skills, and to seek reimbursement from Sudbury for the costs associated with this program being provided for a period of about eight weeks, approximately 90 minutes per day, five times per week, at the cost of up to $70 per hour, as well as to seek reimbursement for the Scientific Learning fee of approximately $890. Exhibit P-47.

175. By letter of January 18, 2005, Ms. Dixson advised Parents that based on their rejection of Sudbury’s settlement offer, “Sudbury has been advised to reconvene the team to develop a new IEP”. In order to do so, Ms. Dixson’s letter requested permission to observe Student at the Wisnia-Kapp facility. Mother testified that she and her husband declined to provide this consent because Sudbury had already observed their son at Wisnia and Associates in December 2004. She stated that Sudbury did not schedule a Team meeting until April 2005. Testimony of Mother; exhibits P-47, S-36.

176. Mother testified that in January 2005, Parents heard back from Landmark School that their son would not be able to attend this school.

177. In April 2005, Sudbury held an IEP Team meeting. Mother testified that at this meeting, Sudbury was willing to discuss the 2005-2006 school year but was not willing to discuss educational services for either the remainder of the current school year (2004-2005) or the summer of 2005. Mother testified that Ms. Dixson stated that her rationale was that these latter topics would be under litigation. By letter of April 19, 2005 from Sudbury’s attorney to the Bureau of Special Education Appeals (BSEA), Sudbury filed a Hearing Request seeking, in relevant part, a determination from the BSEA that Sudbury is not responsible for reimbursing Parents for services they have privately obtained for the summer of 2004 and for the 2004-2005 school year. On or about April 26, 2005, Parents’ attorney filed their own Hearing Request on behalf of Student.

178. Parents are requesting reimbursement for one hour of services per week for four weeks from Beverly Malcolm, educational therapist, from 5/31/05 to 6/14/05. Exhibit P-52. Ms. Dixson testified that prior to receiving the Hearing Request in this dispute, Sudbury was not aware of Parents’ request for reimbursement for these services. Testimony of Dixson; exhibit P-52 (7 th page).

179. Mother testified that she and her husband are very pleased with their son’s current services at the Curtis Blake School and there is not sufficient time to add any services to what he is currently receiving, in the future her son might benefit from occupational therapy services to address his handwriting skills and he also might benefit from remediation in math.

180. Until the instant litigation, Parents did not provide Sudbury with the letters from Stevens and Associates. However, Mother testified that at a Team meeting, Parents would have discussed with the other members of the Team what Dr. Stevens had found regarding Student’s special education needs. Testimony of Mother; exhibit P-9.

181. Mother testified that she requested Dr. Becker to evaluate her son because she believed that Sudbury was not providing a formal assessment of her son’s progress, and she wanted to understand her son’s skill levels. She noted that some of this information was obtained through the Yale evaluation. Mother stated that during an April 2004 Team meeting, she requested that Sudbury provide her this information.

Services from September 2004 through June 2005

182. Mother testified that on September 13, 2004, at Parents’ initiative, a 12-week educational program began for their son. She noted that the program focused on phonemic awareness skills and included educational services from Wisnia and Associates, speech language services from Dr. Becker, vision services from Dr. Stevens and Sudbury Extended Day, which is an extended day program at the Loring School for the purpose of addressing social issues and maintaining contact with Student’s friends. Mother explained that Parents did not include occupational therapy in these services because they believed that it was not the highest priority and that to include these services would be too much for their son. Testimony of Mother.

183. By letter of November 18, 2004, Judith Wisnia wrote to Ms. Dixson, providing information regarding the program that her organization had been providing to Student. The letter explained that the 12-week program that she had initially agreed to provide was drawing to a close at the end of the month, and that her organization was prepared to continue to provide educational services for the remainder of the 2004-2005 school year. Exhibit P-44.

184. Ms. Wisnia testified that during the period from September to May 2005, she continued to try to assist Parents and Sudbury to find an educational program that would be more appropriate (as compared to her program) in that it would include additional children with whom Student could learn. She made recommendations to Parents that they consider the Landmark School (to which Parents applied but Student was not admitted) as well as any language-based program in another public school. She was in contact with Ms. Dixson for this purpose as well, hoping to help mediate a solution, but was unsuccessful in her efforts.

185. Mother testified that by the end of the 12-week program of services at Wisnia and Associates, her son had made significant progress in that he was reading words and little books. She reported that her son was both happy and proud of his academic accomplishments. Mother explained that at this time, the best option still seemed to be a program in the Sudbury public schools, but Parents were running out of time and choices. She explained that since there were no other placement options for her son at the end of the 12-week program, she and her husband arranged for the Wisnia program to continue with a broader focus to include more math and to incorporate social studies and science. She also noted that in January, the program Fast ForWord was introduced into the Wisnia program. Mother explained that during this continuation of the Wisnia program, the additional services (from Dr. Becker, Dr. Stevens, extended day services) also were continued. Mother explained that Parents had been paying for (and continued to pay for) all of these services and provided transportation to these services. Mother testified that exhibits P-48 and P-50 are the bills for these services, none of which have been reimbursed by Sudbury. Testimony of Mother.

186. On December 3, 2004, Ms. Dixson and Ms. Dean visited and observed Student in the Wisnia and Associates program. Ms. Dixson testified that she “was taken aback” by what she saw – Student learning only with adults in offices within a building located in an office park. She testified that up until this point in time, she was interested in considering any possible program for Student, but that upon seeing the Wisnia and Associates program, she concluded that she did not believe that it would be right for Student and could not support it – her principal concerns being Student’s lack of exposure to other children, the qualifications of the staff, the lack of exposure to curriculum frameworks and the failure of the program, up to this point in time, to include content courses such as science.

187. Ms. Dean testified that she believed it to be a “wonderful” program and that Student was making progress in the areas of instruction, but she had concerns regarding the program’s appropriateness for Student, echoing some of the concerns expressed by Ms. Dixson.

188. Ms. Dixson testified that she believed that the CASE Collaborative continued to be an appropriate placement for Student, but because Parents were opposed to it, a placement at CASE probably would not be successful. Testimony of Dixson, Dean.

189. The services from Wisnia and Associates, Stevens and Associates, and Dr. Becker during this time period are described within the testimony of Parents’ experts, below, in the Fact section of this Decision. The services provided during Sudbury Extended Day is described immediately below.

Sudbury Extended Day services

190. Parents are requesting reimbursement for Sudbury Extended Day services where they placed their son from 8/15/04 to 6/14/05. Ms. Dixson testified that this is a private, non-profit organization that provides day care services. She explained that although appropriate developmental activities are provided and children may be provided assistance with homework, and although located in a Sudbury Public Schools building, the Sudbury Extended Day services are not considered educational in nature in that it does not provide any special or regular education services that would correspond with Sudbury education expectations, and it is not a part of the Sudbury Public Schools. Testimony of Dixson; exhibit P-52 (7 th page).

I. Testimony and reports of Parents’ Experts

Testimony of Judith Wisnia and her associate

191. Ms. Wisnia testified that in the spring of 2004, Mother called her and then came by for a visit on May 14, 2004 and returned with her son on May 15, 2004. Ms. Wisnia explained that she saw Student for approximately one hour that she used for “diagnostic therapy” to help determine his needs and whether he would be a good fit for her agency. She found that Student did not know the alphabet that his reading skills were at the pre-school level. She explained that she also reviewed Student’s records, including the CTA evaluation, the neurologist’s evaluation, Dr. Becker’s evaluation and Ms. Lawdis’ evaluation. Exhibits P-10, P-12, P-16. She noted that she later reviewed the Yale evaluation. She concluded that Student would be appropriate for her agency and she started seeing him on June 22, 2004.

192. Ms. Wisnia testified that the plan was to provide Student with a language-based program of instruction, starting with the Wisnia-Kapp reading program, that would make his learning more efficient. Her hope was to find another appropriate program for Student for the fall. While she was working with him, Ms. Wisnia had extensive communications with Dr. Becker and also spoke with the person from Stevens and Associates who was working most directly with Student.

193. Ms. Wisnia testified that when Student started with her agency, he was assigned to work with a program specialist at Wisnia (Elena Ketcios), but Ms. Wisnia also worked directly with Student.

194. When Student started with her agency on June 22, 2004, Ms. Wisnia began working directly with him. During the first several sessions, he was crying and hiding under the table – he did not want to be there. Student was angry that he was having reading instruction over the summer – he said that he cannot read, that he is stupid and that he cannot learn. He was upset that he could not do what others his age were able to do. Slowly, Ms. Wisnia was able to work with him. After several sessions, Student switched over to Ms. Ketcios although Ms. Wisnia continued to see Student occasionally both to work directly with him and to assess his skills.

195. Ms. Wisnia testified that when she began working with Student on June 22, 2004, his reading skills had not changed since May 15, 2004 when she had last seen him. On the basis of her working with him and the evaluation reports that she had reviewed, she concluded that he had a combination of deficits and difficulties that were impacting his reading skills – a phonological processing deficit, attentional and executive functioning deficits, auditory processing deficits and difficulties regarding timing. He had severe articulation difficulties, did not have correct sound structure, did not use correct sentence structure and could not organize himself (sequencing). She explained that it was this combination and severity of deficits that had made it so difficult for Student to learn how to read.

196. Ms. Wisnia testified that, contrary to what was written regarding his current performance level on his IEP, Student did not know the alphabet, he could not spell his name, and he could not rhyme comfortably. She opined that during the previous periods of his education (for example, at CASE), he may have been receiving information and developing skills relative to reading, but the information and skills had not stuck with him and he was not able to retrieve the information that he may have learned.

197. Ms. Wisnia expressed concerns regarding what she believed was in Student’s IEP regarding reading programs prescribed for him. She noted that a number of reading programs were described in the IEP – for example, the Wilson Reading program and Primary Phonics. She explained that Student’s limitations regarding working memory make it too difficult for him to work with multiple programs that address the same skills – he will become confused and shut down. She noted that the Wisnia-Kapp program that was used with Student is extremely specific, which is why it works well for someone like Student – the reading program teaches one piece and when that piece is learned, the Student continues on to the next sequential piece. She opined that this kind of fundamental program was what was needed for Student rather than a more advanced reading program.

198. By letter of November 18, 2004, Judith Wisnia wrote to Ms. Dixson, explaining that Student’s current program, which she would propose to continue with possible modifications, included the following:

Direct Services Monday-Friday (30 hours per week):

· Phonological awareness – phonemic awareness program.

· Language arts program (reading, writing, math, history).

· Gym/art/music.

· Possibility of using Fast ForWord computer education system.

Indirect Services (3 hours per week):

· Teacher/parent/administrations (coordination and consultation).

Professional Guidance (hours per week to be determined):

· Consultations and input from Dr. Hauptman.

Other Direct Services:

· Speech/language services from Dr. Becker.

Optional Occupational Therapy Services (1 hour per week):

· Occupational therapy/sensory integration occupational therapy could be added to Student’s educational program.

Exhibit P-44.

199. Ms. Wisnia testified that after 18 sessions with her agency, Student had made “wonderful” progress as compared to where he had started with her. Student had learned 30 out of the total of 44 sound symbol relationships – he had learned all of the ones on which he had received instruction and did not know the others. He was starting to think about sound structure, had become more aware of his difficulties in this area and was able to self-correct – all areas of improvement. She explained that the bottom line was that he was beginning to learn to read – for example, he could put sentences and words together, he could explain to himself and others what he had read, and he had a desire to read. By September, Ms. Wisnia noted that Student was noticeably happier as a learner.

200. The written progress report from Wisnia and Associates for the period 6/22/004 to 8/18/04 indicated that when he first began the program, Student was unable to learn to read and “was very hesitant to try.” At this time, “he would not read at all and did not appear to know his letter names or his sound symbol relationships”. However, the report explained that within a few weeks, Student saw that he would be able to learn to read and began to make considerable progress developing both his phonemic awareness and decoding skills. The report concluded that within a very short period of time, Student had significantly improved his ability to decode and encode words, and his executive functioning skills (organize, plan, and sequence thoughts and activities) had all progressed, together with his self-esteem, since June. Exhibit P-11.

201. The written progress report from Wisnia and Associates for the period 9/8/04 to 11/30/04 noted that prior to the summer, Student was unable to use most letter names or sounds and did not have the ability to decode or encode, and by the end of the summer, he had started to develop skills in these areas. Exhibit P-11.

202. Ms. Wisnia testified that at the end of August and into September 2004, Parents were trying to get their son into an appropriate educational placement. When they were unable to do so and Student had no other place to go, she put together an educational program of 12 weeks from September to November, which would focus specifically on Student’s phonological awareness deficits for the purpose of developing Student’s reading skills. She explained that this program was similar to the summer services from her agency but more intensive, so that in the fall Student began receiving 26 hours of services (25 hours of direct services and one hour of staff organizing/communication). She noted that although Student worked 1:1 with a program specialist for most of this time, at other times there would be other children at Student’s level with whom Student would work.

203. Starting in September 2004, Student began working with another program specialist in her agency (Gail Maurer, MSW).

204. The written progress report from Wisnia and Associates for the period 9/8/04 to 11/30/04 indicated that Student had “made enormous progress to date, not only in reading but emotionally as well.” The report noted that when Student originally started with Wisnia and Associates, he was hesitant to try any aspect of reading – he was afraid to try to learn to read. By the end of the report period, Student had learned sounds and effective strategies in all areas addressed, and he was becoming less resistant to learning how to read. Exhibit P-11.

205. By letter of November 18, 2004, Judith Wisnia wrote Ms. Dixson, providing information regarding the program that her organization had been providing to Student and reporting that Ms. Wisnia could not recall ever seeing a child make as much progress in such a short time as Student. Exhibit P-44.

206. Ms. Wisnia testified that near the end of this 12-week program when Student continued to have no other educational program available to him, she developed an additional program for Student that included language arts, math, history, science and music. She consulted with Dr. Hauptman who runs the Community Therapeutic Day School and who had offered to help develop an appropriate program for Student, in order to ensure that she had the appropriate pieces to a more comprehensive educational program than she had provided to Student previously. She also began using a program entitled Fast ForWord to help with Student’s auditory processing deficits – she opined that this program was important for Student in that it helped him with processing speed, working memory and reading.2

207. Ms. Wisnia testified that beginning April 1, 2005 and continuing to May 26, 2005 when her services ended, Student’s time with Wisnia and Associates was reduced from 25 hours per week to 4 hours per week. The services from Wisnia and Associates were being paid for privately by Parents, and Mother testified that the reason for the reduction of services was simply that Parents did not have sufficient financial resources to continue with more than 4 hours per week of services. Ms. Wisnia removed from the program everything except phonemic awareness, reading and math, essentially to try to “hold him together” with respect to what he had learned.

208. Ms. Wisnia testified that during this time period of April 1 to May 26, 2005, Student regressed and became angry. She explained this regression is to be expected with a child who has been receiving intensive language-based teaching that is carried through all of the instruction for 25 hours each week, and then this instruction is reduced to 4 hours per week. She opined that once Student was put back into an intensive, language-based program (such as Curtis Blake), he would resume his progress. She also noted that the anger was understandable given the fact that Student had expected to be able to continue receiving the 25 hours per week of instruction. The written progress report for this period of time reflected Student’s regression. Exhibit S-68.

209. Ms. Wisnia testified that reviewing the period from September 2004 to May 2005, she noted substantial, positive changes in Student’s reading, understanding, fluency, processing speed, math, science and writing skills. Equally important, Student had a joy of learning. Ms. Wisnia concluded that Student had accomplished what was the purpose of the program – that is, that Student learn to read. She also noted throughout this time period there was an intensity of the instruction on Student’s reading skills that gave him a “boost”, leading to significant progress regarding his ability to read.

210. Ms. Maurer testified that during the time that she worked with him, Student made progress in math (for example, learning the basic way in which numbers worked), history (for example, improving his ability to receive, understand and tell back orally or in writing information related to history), writing (advancing from being unable to write “much at all” to becoming a more competent writer and learning to tell things in writing in a more ordered way) and science (for example, advancing from being unable to ask a question to being able to ask a question in order to find out information that he wanted to learn). She also emphasized how Student had made “enormous” progress in opening up to the learning process and being able and willing to take risks in this process in order to learn.

211. The progress reports from Wisnia and Associates support Ms. Wisnia’s testimony. For example, by the conclusion of the 12/1/04 through 3/31/05 service period, the report states that Student was able to read a 1 st grade book out loud with 80% accuracy and no notable frustration; and he was able to read a 2 nd grade book with clinician support and encouragement with 70% accuracy and minimal frustration. This report further concluded: “[d]espite the significantly increased demands placed on [Student] during the report period, he worked hard, handled frustration well, and performed at and above expectations. Exhibit P-11.

Testimony of David Stevens

212. David Stevens testified that his center, called Stevens and Associates, provides evaluations and cognitive development therapy sessions to improve cognitive skills and educational outcomes for children. He explained that nearly 100% of the work of his center is developing the skills needed for a child with deficits similar to those of Student.

213. Dr. Stevens testified that on June 11, 2004, Student came to see him for the first time. He stated that Parents submitted a completed questionnaire, and he reviewed several evaluations of Student, including the evaluation by Dr. Libbey, the comprehensive assessment by Children’s Therapy Associates and (at a later time) the Yale study. He stated that he evaluated Student not through standardized testing (since this testing had already been done) but rather asking Student to perform a hierarchy of tasks to see how he responded and establish clinical expectations. Dr. Stevens stated that from his testing of Student, together with the written reports of others, he found that Student had deficits regarding visual perceptual skills, visual spatial skills and sensory motor coordination skills (both fine motor and gross motor). (Dr. Stevens testified in detail to explain how the previous written reports – the reports referenced above, as well as the occupational therapy evaluation conducted by Sudbury in May 2003, exhibit P-20 — document these deficits.) He explained that although Student has other needs, he has started by addressing these deficits because they are most fundamental in terms of Student’s learning disabilities and because these deficits were not being addressed by other professionals.

214. Dr. Stevens testified that if the goal is to minimize Student’s distress in learning, then one would lower expectations for Student and provide higher teacher to student ratio and other accommodations; however, if the goal is to remove the barriers to learning and to develop his full potential, then he needs a 1:1 intervention program on a daily basis to address those weaknesses that are a barrier to learning.

215. Dr. Stevens testified that Student’s visual-perceptual skills that are being worked on by Stevens and Associates are “extremely low”. He stated that these deficits relate to reading in that they are a measure of how well Student understands what he sees. He explained that the visual component instigates the auditory — if a child sees something on a page, the child must understand the visual-spatial representation to know what sound is represented by it. He noted that if a child cannot understand what he is seeing in a reliable and efficient way, it is a “huge barrier to reading and learning”.

216. Dr. Stevens testified that Student’s visual-perceptual deficits are a fundamental barrier to his reading; rarely can a child learn how to read unless the deficits (that Student has) are addressed appropriately. Dr. Stevens explained that in addition to Student’s visual-perceptual deficits, Student over-focuses his eyes and has poor eye tracking, adding a burden to his learning how to read. Dr. Stevens testified that, to his knowledge, the only way to address these deficits so that they will not be a barrier to Student’s reading and learning, is through 1:1 therapy.

217. Dr. Stevens testified that while in his program, Student has made steady and even dramatic progress in the areas being worked on, as reflected in the computer-generated graph of his development, as well as indicated by how quickly Student has been able to master one part of the program and move onto the next part of the program. Exhibit P-9 (5 th page).

218. Dr. Stevens testified that after the initial evaluation on June 11, 2004, Student began receiving individual therapy in his office for 50 minutes, twice per week from Julie Hurley; Dr. Stevens met with Student every ten weeks to re-evaluate his progress and meet with Parents; Student’s therapy was reduced to once per week on Saturdays when he began attending the Curtis Blake School in the fall of 2005.

219. Dr. Stevens testified that he reviewed the proposed IEP for June 2004 to June 2005 (exhibit P-6) and, in particular, goals numbered 9 and 10 relating to fine motor, visual perceptual motor skills and sensory gross motor skills. He stated that he found nothing within these goals to address appropriately Student’s fine motor and visual perceptual deficits. He testified that he also reviewed the listed accommodations (page 3 of 14) in the IEP and found that they would likely reduce Student’s stress related to his learning deficits, but that none of the accommodations would address Student’s fine motor and visual perceptual deficits by providing a pathway for Student to find a solution to these deficits.

220. Dr. Stevens testified that goal numbered 9 of the IEP is, in his opinion, inappropriate because Student does not have the fundamental visual-perceptual skills necessary to attain the goal, his eye coordination is not well-developed and, in general, his overall sensory-motor system is undeveloped — the result is that putting forth goal numbered 9 is an unfair and inappropriate expectation. He further stated that the benchmarks/objectives for goal numbered 9 are inappropriate in that it would likely take Student years to reach them, with considerable distress and loss of zest in learning, without Student’s fundamental deficits being addressed and remedied.

221. Dr. Stevens testified that goal numbered 10 of the IEP is, in his opinion, inappropriate because the objectives/benchmarks are not included in a systematic plan. He explained that if Student were to practice the particular skills described in the IEP, he may be able to perform those skills, but this would provide no significant benefit to Student with respect to his educational development. He opined that these kinds of services address the symptom and not the cause of Student’s difficulties.

222. Dr. Stevens testified that to benefit Student, there must be an overall systematic program to develop Student’s visual-perceptual skills so that the program propels the child to a higher level of development, and with a higher level of development, gaining the skills described within this part of the IEP will essentially take care of itself. He also noted that the goal does not address eye focusing and eye tracking.

223. Dr. Stevens testified that the amount of time for occupational therapy under the IEP is sufficient to practice the skills listed in the IEP but would not be sufficient to address the underlying developmental deficits that are being addressed through Stevens and Associates. He explained that it needs to be every day that Student receives therapy or practices at home in order to change the structure of a child’s thinking and understanding of how to coordinate his body. He explained that if Student were working with an occupational therapist to address some of these issues, there would need to be less time working with Stevens and Associates.

224. Dr. Stevens testified that when Student came to see him in June 2004, Student was very intimidated and insecure, hiding under the table on the first visit. He opined that at this point Student’s experience in school had been failure and his behavior was a result of that experience. He testified that session by session with activities at which he succeeded, Student became more and more comfortable.

225. Dr. Stevens testified that the IEP for June 2004 to June 2005 does not address Student’s developmental barriers to learning in the areas that Dr. Stevens is addressing – coordination of his eyes, understanding what he is seeing and coordination of his body. He explained that if these barriers are not addressed appropriately, Student will likely continue to have significant barriers to meaningful learning, and his learning will be confusing and stressful, if not impossible. He explained that these barriers can be removed with a systematic approach that is not included within the IEP.

226. Dr. Stevens testified that if a change of services had not been made for Student beginning in the summer of 2004, he would not have made progress. He based this conclusion on the evidence that Student had been in school for years and what he had to show for it was emotional trauma – he was terrified of learning. Sr. Stevens concluded that Student had not been on a pathway to reading, writing or enjoying school, or on a path to thriving in an academic setting.

227. Dr. Stevens testified that Student is now doing “great”. He explained that Student has tremendous potential which has been demonstrated by Student’s engagement and rapid progress with the program provided by Stevens and Associates – essentially going from a 4 year old level to a 6 or 7 year old level over the course of a year regarding his visual thinking. He also noted that there remain many needs to be addressed.

Testimony of Laura Becker

228. Laura Becker testified that she evaluated Student in September/October 2003 (exhibits S-58, P-12) and then provided him with speech language therapy once per week until summer 2004 when she began providing him with therapy twice per week; she stopped providing him therapy when he began attending Curtis Blake School at the beginning of the 2005-2006 school year. She testified that she has reviewed the evaluations of Student when he first came to see her, and has reviewed all of his IEPs.

229. Dr. Becker’s testimony (together with her written evaluation report, exhibits S-58, P-12) indicated that as a result of her three-day evaluation of Student in September/October 2003, she found that Student presented with a significant, phonologically-based, language-based learning disability with a scatter of skills. She found that Student presented with exceedingly strong receptive single word vocabulary indicating significant potential for cognitive growth, but his learning disability negatively affected his ability to perceive words correctly, to hold auditory information in memory, and to produce word forms. She testified, in addition, that Student had a severe phonological output disorder and a phonological awareness difficulty, so his phonological knowledge skills were not well developed. Dr. Becker explained that on the basis of the evaluations of Student, she concluded that he has a “pretty intractable” and severe phonological output disorder that requires intensive therapy.

230. Dr. Becker testified that given Student’s profile of multiple deficits (phonological awareness, visual deficits, naming deficits, phonological output disorder and difficulty learning rote information), he requires a very intensive program in phonological awareness with significant support to learn the rote information and a great deal of work on rapid automatic naming; and all of this needs to be addressed in a way that threads all of these components into a single program to develop pre-reading skills. She concluded that, for reasons explained below, he was not receiving the kind of services from Sudbury that are needed to address the severity and multiplicity of his disorders.

231. Dr. Becker testified that after her evaluating Student in the fall of 2003, she began attending IEP Team meetings and had communications with the Sudbury speech language pathologist (Dressler) regarding Student. Dr. Becker thought that the CASE Collaborative would be a program that should be considered for Student as a language-based classroom although she was concerned about the number of children with hearing impairments in the classroom. Nevertheless, Dr. Becker believed that CASE seemed to be a program that could accommodate both language-based learning-impaired students as well as hearing-impaired students. Testimony of Becker.

232. Dr. Becker testified with respect to the IEP for the period January 2004 to January 2005 that the critical goals were goals numbered 4 and 5 that addressed phonological awareness. She noted at the outset that the skill levels described within these goals were significantly higher than what she observed at this time; and attaining annual goal numbered 5 was unrealistic given the services he was being provided. Dr. Becker testified that, at this time, Student did not have the fundamental skills to perform at the level of goals numbered 4 and 5 – he did not have the phonological or phonemic awareness skills (that is, pre-reading skills) that are necessary to begin a reading program that was described within the January 2004 to January 2005 IEP. She explained that he needed a much stronger foundation in phonological awareness skills in order for these goals to be appropriate. She further explained that goal numbered 4 was missing a significant number of phonological tasks that are central to learning how to read, such as sound manipulation within words, and being able to take a syllable off a word – that is, the kind of flexibility needed to learn how to read. Testimony of Becker.

233. Dr. Becker testified that she did not find the program that is required by Student reflected in the January 2004 to January 2005 IEP. She testified that based on the progress that Student made when more intensive services were provided after the CASE placement, she believes that the program reflected within the IEP was not intensive enough. She also found the program described within the IEP as deficient in that it did not include the “glue” to ensure coordination among the different parts of the program services. Testimony of Becker.

234. Dr. Becker testified that with respect to the IEP for June 2004 to June 2005, a number of the goals were quite good, but that the speech goal (goal # 8) was too limited and not sufficiently intense. She noted that the phonological goal from the previous IEP was fused into the reading goal (goal # 1 includes all aspects of reading) but that this goal was too limited because it reflects only a small part of the phonological awareness skills that are necessary to learn how to read and is deficient for the reasons explained above.

235. Dr. Becker testified that the IEP for 6/4 to 6/5 provided a variety of different methodologies to develop reading skills (Primary Phonics, Phonics and How They Work, Wilson Reading program and Telian Multisensory Mnemonic Letter Card Program) and for someone such as Student who is having a difficult time acquiring reading and pre-reading skills, having a combination of 3 or 4 programs is not going to work – he needs a single program that is tailored to both his difficulties and his strengths. She noted that the program must be systematic in that the letters and sounds that are being introduced in reading are also being introduced in phonological awareness as well as articulation, so that Student starts to see himself as a user of print. She explained that Wisnia-Kapp would be an appropriate program.

236. Dr. Becker testified that Student was not ready for the Wilson Reading program in that he did not have the preliminary skills that are necessary for him to use this program successfully. Similarly, she noted that the Primary Phonics program is a program that he had already used and it was not effective for Student, and so it should not have been continued. She explained that when a program is used and is found not to be effective, it is not going to become effective if continued. Dr. Becker further noted that when 3 or 4 programs, such as are reflected in the IEP, are used with someone such as Student, he is likely to be confused and not happy that he cannot do what the other children his age are doing, and this would likely cause him stress and anxiety. She noted that her opinions regarding what would be appropriate for Student are based on testing him and working with him over a period of time, starting in September/October of 2003 and continuing to the beginning of the 2005-2006 school year.

237. Dr. Becker testified that, in her opinion, the proposed IEP for June 2004 to June 2005 would not likely result in Student’s gaining these reading skills because he would need a single, appropriate reading program to provide him the information that he needs, as discussed earlier, and this was not reflected within the IEP. She reviewed the summer program (for the summer of 2004) proposed within the IEP and concluded that it was not sufficient because Student needed daily work on phonological awareness and reading skills. Dr. Becker concluded that in the event that the program as reflected within the IEP of June 2004 to June 2005 (without Dr. Becker’s services) were to have been implemented, there would likely have been very slow progress that would have been quite frustrating for Student, as compared to Student’s potential to learn which she described as “huge”.

238. Dr. Becker testified that when Student first came to see her in October 2003, he was a child who came in excited about reading with incredible vivacity and he thought of himself as a curious and intelligent little boy; but over time, he saw himself as less capable and his excitement for learning was lost. She explained that in June 2004, she found that there were sessions where she could not work with him – he became so frustrated that he was angry and so she would have to engage him in a computer game at which he could be successful. She explained that early on, this anger and frustration came from not wanting to see another speech teacher. She noted that in June 2004, sometimes Student would simply come into a session and cry and say that he is stupid.

239. Dr. Becker testified that she reviewed the April 4, 2001 Sudbury speech language evaluation (exhibit S-51) and there were a number of indications of weaknesses that would lead to a reading disability – for example, Student’s concept of linguistic concepts (at the 5% level as compared with his peers). She explained that as a result of these “red flags” in the evaluation, Sudbury would have needed to monitor Student to make sure his pre-reading skills (including phonological skills) would begin to develop.

240. Dr. Becker testified that she reviewed the March/April 2003 Sudbury speech language evaluation (exhibit P-21). She noted that when this evaluation is compared with the April 2001 speech language evaluation, Student made progress – for example, sentence structure, understanding of grammar, ability to understand direction. However, he was still having difficulty formulating sentences.

241. Dr. Becker testified that when the results of the March/April 2003 evaluation (exhibits S-58, P-12) are compared with the results of her own evaluation in September/October 2003 (7 months later), he made steady gains in comprehension of syntax but that he came down with respect to his ability to understand directions, and his word structure was significantly down. From this review, Dr. Becker concluded that Student was not making appropriate progress during this time period.

242. In addition, Dr. Becker compared Student’s phonological awareness with educational testing by Aimee Caldeira in May 7, 2003 (exhibit P-23) where he scored in low average range across the board. Dr. Becker found that in her phonological awareness testing, Student had difficulty across the board except in the area of substituting one syllable for another and in rhyming. She found that Student had not made any progress in articulation from the April 2001 and September 2003 Sudbury tests up to the time of her evaluation of Student. She further noted that the sounds he was able to make in kindergarten were essentially the same sounds that he was able to make when she evaluated him two years later.

243. Dr. Becker testified that during the period of time from when she first began seeing Student in September/October 2003 until June 2004, she saw progress in that Student was following lengthier instruction and his ability to process language was clearly improving, he was starting to use more morphological markers and pronouns in his connective speech and his articulation although not fully intelligible was “less consistently incorrect”. However, she testified that during this time period, Student did not make progress in the level of reading skills — for example, acquisition of sound-symbol association and ability to identify letters — and he did not make progress regarding his phonological awareness. She concluded that in the areas where no improvement was seen, he needed more systematic and more intensive services in order to improve.

244. Dr. Becker testified that by the end of the 2003-2004 school year, Student had not made many gains relevant to learning how to read. She stated that when working with Student, she found that he could not read and did not have the requisite skills to learn how to read – for example, he could not identify letters consistently, only sometimes could he make sound-symbol correspondence, and he did not have efficient or useful strategies. She noted that with the correct educational program, Student would have likely made progress in learning the requisite skills to be able to read.

245. Dr. Becker testified that she reviewed the Yale evaluation of September 9, 2004 (exhibit P-13) and the Aimee Caldeira evaluation in May 2003 (exhibit P-23), and noted that Student’s standard scores overall decreased over time – phonological awareness went to low average to below average and his rapid automatic naming test could not be completed on the Yale evaluation. She stated that in February 2005, she performed testing the (Comprehensive Test of Phonological Processing test that was also given in the Yale and Caldeira evaluations) with the most significant area of improvement being phonological awareness, where Student’s scores were 85 in May 2003, 82 in September 2004 and 103 in Dr. Becker’s testing of February 2005; his rapid naming had also improved from the Yale evaluation. She noted that his skills were not automatic and he still had a phonologically-based learning disability, but he was learning.

246. Dr. Becker testified that from the summer of 2004 through the spring of 2005, Student made “huge progress” regarding phonological awareness, his ability to name letters, ability to begin to read, manipulation of sounds, and writing. She concluded that the Wisnia program “pulled him out of his woods” regarding his ability to learn how to read.

247. Dr. Becker testified that the behaviors she had seen in June of 2004 (and earlier) disappeared so that Student became eager to show her what he had learned in the Wisnia program, he began to see himself as a reader and began to feel much better about himself, indicating that his behavior had been tied to his frustration at not being able to do what was being asked of him. Dr. Becker testified that she is familiar with the Wisnia program that Student attended starting in the summer of 2004 (in July 2004 she took a Wisnia-Kapp training program to understand the program and use the materials). She noted that she was working in tandem with Wisnia and Associates.

248. Dr. Becker testified that, on the basis of what Student was able to acquire in terms of reading skills in a relatively short period of time while in the Wisnia program, she believes that Student has the capacity to learn how to read; and with an appropriate program, he will learn how to read in order to access text. She explained that given his potential to learn how to read, he needed to learn certain phonological awareness skills, sound-symbol association skills and visual-spatial skills.

249. Parents did not request that Sudbury pay for the cost of Dr. Becker’s evaluation until Parents sought reimbursement as part of their BSEA Hearing Request. Testimony of Mother, Dixson.

J. Qualifications of witnesses and service providers

250. Christine Locke has been employed by CASE as a teacher for nine years, and previously she was a teacher in a language-based classroom for one year at the Fitchburg Public Schools. Ms. Locke has a master’s degree in special education that she received in 1999. She noted that as part of her course work for her master’s degree, she studied reading programs, including Project Read and the Wilson Reading program, and that she has taken a workshop on auditory processing. Testimony of Locke.

251. Honore Weiner has been the program administrator at CASE since 1974. During part of this time, she also served as a part-time speech language pathologist. She holds a master’s degree in speech pathology and audiology and a doctorate in special education that she received in 1980. Testimony of Weiner.

252. Deborah Dixson is currently and has been since March 2001, the Special Education Administrator for Sudbury. For the previous 13 years, she was the Pupil Personnel Director (which included overall responsibility of special education) for Swampscott Public Schools. For the previous 9 years she worked at the Douglas Public Schools, starting as a special education assistant in 1979, becoming a special education teacher in 1980 and then becoming its special education director in 1985. Ms. Dixson holds a master’s degree in special education that she received in 1987 and she is certified in the Wilson Readpg program. Testimony of Dixson.

253. Judith Wisnia is a speech language pathologist and has provided direct therapy services and consultation services in a variety of public and private settings (including the CASE Collaborative) from 1967 to 1980. In 1980 she founded and became president of Wisnia and Associates. Wisnia and Associates provides reading, speech language services, occupational therapy and physical therapy through more than 100 clinicians. Over the last 15 years she has taken over the academic part of the organization and manages the agency. In 1990, she developed the Wisnia-Kapp reading program. She has provided an extensive number of lectures and workshops regarding the Wisnia-Kapp reading program, and noted the substantial number of public schools in Massachusetts (at least eight) and substantial number of other states (approximately forty-five) in which the Wisnia-Kapp reading program is utilized. Testimony of Wisnia; exhibit P-11 (resume).

254. Elena Ketcios has been working with Wisnia and Associates in the position of clinician/program specialist since 1993 and previously worked in various elementary school classrooms in public schools since 1990. She has a master’s degree in early childhood education that she received in 1994. Testimony of Wisnia; exhibit P-11 (resume).

255. Gail Maurer began working with Wisnia and Associates in the position of clinician/program specialist since March 2004. Prior to this position she worked with adolescents and adults in a variety of human service settings for four years and prior to that worked in the technology area for four years where her responsibilities included teaching classes. She holds a masters degree in social work that she received in 1992. Upon becoming employed by Wisnia and Associates, she received 10 hours of training from the agency and has formal supervision meetings with Ms. Wisnia once each week and more informal contact with Ms. Wisnia on a daily basis. Testimony of Maurer; exhibit P-11 (resume).

256. David Stevens has a master’s and a doctorate in developmental psychology from Harvard University. He is a developmental psychologist who, for 13 years has focused on cognitive development as relates to learning difficulties and the improvement of cognitive skills for the purpose of improving learning and educational outcomes. He received a two million dollar grant from the federal government to adapt his program at his center to make it more widely available to the nation’s school children. He has done about a dozen presentations or papers in his area of expertise. Testimony of Stevens; exhibit P-9 (resume).

257. Laura Becker , a licensed and certified speech pathologist, received her master’s degree in speech pathology and audiology in 1972 and her doctorate in speech language pathology in 1992. She also took a Wisnia-Kapp training in July 2004 because she knew that Student was receiving training in this reading program and wanted to ensure continuity with her services. Her work experience as a speech language pathologist began in 1970 and continues through the present in a wide variety of organizations. Her experience includes a long list of teaching experience and presentation, which includes teaching college-level courses in phonological acquisition and disorders. A fundamental portion of every course she teaches is the phonological underpinnings of language disorders. She is currently in private practice which exclusively involves children, and she has evaluated and provided speech language therapy to approximately 50 or more children with similar age and deficits as compared with Student. Her experience is described within her resume. Testimony of Becker; exhibit P-12 (resume).

258. Luan Dean has been employed by Sudbury for the past eleven years. During the past seven years of her employment with Sudbury, she has been Sudbury’s out-of-district coordinator, and for the past six years she has been the IEP Team chairperson for a Sudbury elementary school. Ms. Dean previously was a school psychologist. She has a master’s degree in psychology that she received in 1977. Testimony of Dean.

259. Julie Hurley has a master’s degree in child development, and while in graduate school she worked at the Tufts Educational Daycare Center where she ran a social skills group and worked one-on-one with children using the Floortime approach. Prior to coming to Stevens and Associates she worked at the Developmental Medicine Center at Children’s Hospital in Boston, Ma. Exhibit P-9 (resume).

IV. DISCUSSION

Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act3 and the state special education statute.4 As such, Student is entitled to a free appropriate public education (FAPE).5 (Prior to January 1, 2002, Massachusetts utilized a standard of maximum feasible educational development.6 This standard would govern the IEP for the 2001-2002 school year in the instant dispute.) Neither his eligibility status nor his entitlement to FAPE is in dispute.

A. 2001-2002, 2002-2003 and 2003-2004 school years

Accepted IEPs

The IEP for the period 5/9/01 to 5/9/02 was accepted in full by Parents. Facts section of this Decision (Facts) par. 7.

The IEP for the period 5/02 to 5/03 was accepted in full by Parents. Facts par. 8.

The next IEP covered the period 7/7/03 to 6/6/04. Mother accepted this IEP except for the parts that were rejected. Mother rejected goals 1, 2, 3 and 4, and in the comments section of the IEP, Mother further wrote that Parents believe the speech and language services are inadequate for addressing their son’s weaknesses in this area. Facts par. 35. The fact that Parents rejected goals 1, 2 and 3 and the frequency of speech language services for the period 7/7/03 to 1/5/04 does not alter the acceptance of the other parts of the IEP for purposes of any compensatory claims.

A revised IEP was developed for the period 1/5/04 to 1/5/05 for the purpose of placing Student at the CASE Collaborative (CASE). This IEP was accepted in full by Father in December 2003, but later, in a July 12, 2004 letter, rejected by Parents. Facts pars. 78, 131. The fact that the 1/5/04 to 1/5/05 IEP was rejected in July 2004 does not alter the acceptance of this IEP for the period 1/5/04 until July 12, 2004 for purposes of any compensatory claims.

Parents argue that their consent to the 1/04 to 1/05 IEP should be considered invalid because they consented “without being fully informed of [Student’s] disabilities, progress and current performance while at the Loring School in Sudbury.”7 I note at the outset that Parents are not clear as to what information they lacked. Presumably, their argument is that Sudbury should have provided them with additional, and arguably more accurate information.

I do not find Parents’ argument to be persuasive. Even were I to agree with Parents that Sudbury may not have “fully informed” Parents, I nevertheless conclude that Parents had sufficient knowledge to consent to the services and placement reflected within the IEP.

When Parents signed the IEP, they had been receiving advice from their private speech language pathologist, Dr. Becker, who, by this time, had evaluated Student, reviewed other evaluations of Student, participated in Team meetings, advised Parents regarding Student’s needs and reviewed the appropriateness of the proposed placement at CASE. Facts pars. 228-231. As is discussed in other parts of this Decision, Dr. Becker has significant experience and expertise relevant to Student and his educational needs. Facts par. 257. It simply does not comport with the undisputed facts to conclude that Parents lacked sufficient information to consent to the IEP.

Parents also argue that they signed the 1/04 to 1/05 IEP in reliance on what they believed to be Sudbury’s commitment to have a Team meeting in March 2004 to re-write the IEP. I am not persuaded that Sudbury committed to having such a meeting. The understanding, as reflected within the 1/04 to 1/05 IEP, appears to have been that a Team meeting would occur within six to eight weeks after signing the IEP for the purpose of reviewing the IEP and determining what, if anything, needed to be changed.8 A Team meeting occurred on March 4, 2004 for this purpose.

For these reasons, I find that the IEPs for the 2001-2002, 2002-2003 and 2003-2004 school years were accepted in full, except for the rejection of goals 1, 2 and 3 and the frequency of the speech language services for the period 7/7/03 to 1/5/04.

The general and well-settled rule is that acceptance of an IEP precludes the Hearing Officer from considering its appropriateness. I am aware of nothing within the instant dispute that would support making an exception to this rule.9

Occupational therapy evaluation and services from September 2001 to June 2003

An academic readiness test administered by Sudbury on May 2, 2001 resulted in a written recommendation that Student be referred to an occupational therapist in the fall of 2001 for evaluation of his fine motor skills. The evaluation did not occur in the fall of 2001. As a result of Parents’ subsequent request, the occupational therapy evaluation was eventually completed in May 2003. No occupational therapy services were provided until the summer of 2003, as a result of the May 2003 evaluation. Facts pars. 5, 6.

Parents seek compensatory education for Sudbury’s failure to evaluate their son in the fall of 2001, and the consequent delay of the initiation of occupational therapy services.

Parents agree that they are barred by the statute of limitations from seeking reimbursement for any claims prior to three years before they filed their Hearing Request on April 26, 2005. They seek compensatory services for failure of Sudbury to provide occupational therapy services from April 26, 2002 until June 17, 2003 (Sudbury began providing occupational therapy services during the summer of 2003). This claim reflects 55 weeks during which services should allegedly should have been provided. Parents claim that Sudbury failed to provide 2×30 minutes per week of services (the frequency of services that were initiated in the summer of 2003) for this 55 week period, or 55 hours of missed services. Exhibit P-52.

Sudbury does not dispute that normally it would be its responsibility and practice to have such an occupational therapy evaluation of Student since it was recommended in a Sudbury assessment. It is not apparent why this did not occur in this case, and Sudbury has offered no explanation.

It seems self-evident that a recommendation by a Sudbury staff person for an additional evaluation at least creates the presumption that such evaluation should occur. Sudbury provided no evidence to rebut this presumption.

The weakness of the Parents’ case is not that there should have been an earlier evaluation but rather with respect to my having to determine what should follow from not having the earlier evaluation. Parents must provide sufficient evidence so that I need not speculate with respect to what educational harm has occurred and what relief, if any, should be provided to make up for this harm. This the Parents have not done.

Compensatory services are essentially a remedy designed to make Student whole – that is, to make up for what was lost as a result of not having received the requisite services or placement.10 As one federal court has instructed, the decision-maker needs to make “an informed and reasonable exercise of discretion regarding what services [Student] needs to elevate him to the position he would have occupied absent the school district’s failures.”11 In other words, I must determine what, if anything, Student lost as a result of the delayed evaluation, and then I must determine what is needed to make him whole.

There was no evidence presented to indicate that had the evaluation occurred in a more timely manner, the evaluation would have likely recommended that Student receive occupational therapy services and therefore Student would have received services prior to the summer of 2003. Moreover, even if one were to assume that with an earlier evaluation services would have started prior to the summer of 2003, there was no evidence that would allow me to conclude that the sum total of services delivered would have exceeded the sum total of services that have actually been provided. Finally, there is no evidence to indicate what would be necessary to make Student whole in light of these possible shortcomings.

For these reasons, I conclude that I have an insufficient evidentiary basis for awarding compensatory services to Parents as a result of the occupational therapy evaluation not occurring until May 2003.

Handwriting services from October through December 2003

On October 3, 2003, Ms. Lawdis did an occupational therapy observation of Student in his 1 st grade classroom at the Loring School. Ms. Lawdis’ observation report concluded:

Lack of a substantially separate letter teaching format to address dyslexia is apparent. Given this, letter presentation appears overwhelming. The methodology for teaching is incongruent with current therapy strategies. Issues of attention and compliance are evident in the group setting.

Exhibit P-10; Facts par. 50.

Mother testified that in response to this observation by Ms. Lawdis and her concerns regarding Sudbury’s teaching Student his letters through the particular methodology being utilized in the classroom, Sudbury stopped teaching Student handwriting without discussing or deciding what should be done next. Mother stated that Sudbury did not subsequently address this area of need through an alternative methodology. Facts par. 51.

Parents seek compensation for missed handwriting instruction from October 3, 2003 through December 31, 2003, for 1×30 minutes per week for 12 weeks, or 6 hours of services. Exhibit P-52.

Ms. Dixson testified that the only thing that was discontinued was a particular handwriting program and that the teacher continued to address Student’s handwriting needs in alternate ways. Facts par. 51. I fully credit Ms. Dixson’s testimony in this regard since I believe that she had a better understanding than Mother regarding what was occurring within the classroom with respect to this issue.

Accordingly, I find no basis to award compensatory services with respect to alleged missed handwriting services.

Speech language services from Laura Becker provided in the fall 2003

The IEP for the summer of 2003 included, among other services, speech/language for 30 minutes, twice per week. Parents accepted this part of the IEP. The time period consisted of six weeks, for a total of twelve sessions of 30 minutes each (in other words, six hours) of speech language services. Exhibits P-8, S-7; Facts par. 30.

Ms. Dixson called Mother at the end of July 2003 to say that Sudbury had not been able to find a speech language therapist to provide the services, and Ms. Dixson offered to contract with a person identified by Mother. As a result, Mother identified Laura Becker, a speech language pathologist. E-mail messages between Mother and Ms. Dixson, both dated September 10, 2003, document Parents’ request to have Dr. Becker provide these services and Ms. Dixson’s willingness to consider Dr. Becker, provided that she was a licensed and certified speech pathologist, which she is. Facts pars. 38, 257.

At Mother’s request, Dr. Becker began providing speech language services to Student on October 1, 2003 and continued through November 17, 2003. There were seven sessions, one hour each of speech language therapy provided during this time period at $105.00 per hour. Exhibits P-48 (last page), P-52.

Until the filing of the Hearing Request with the BSEA in the instant dispute, Parents had not requested that Sudbury reimburse Parents for the cost of speech language services provided by Dr. Becker. Sudbury argues from this that Parents should now be foreclosed from obtaining reimbursement. Sudbury has provided no evidence indicating that Sudbury has been harmed, and I am therefore not persuaded that this delay has in any way prejudiced Parents’ claim.

Sudbury also argues that since Parents did not accept the IEP, for purposes of these services, until September 2003, it should not have to pay for summer services. I disagree with Sudbury and find that Parents accepted the IEP in July 2003. Facts par. 35. I also find that the correspondence between Mother and Ms. Dixson, discussed above, reflects an agreement between the parties that Parents would provide, and Sudbury would reimburse, speech language services from Dr. Becker in lieu of Sudbury’s providing these services under the accepted IEP. Facts par. 38. I have the authority to enforce this agreement.12

I find that with respect to services provided in the fall of 2003 for purposes of making up for services that were to be provided during the summer of 2003, Sudbury shall reimburse Parents for their following out-of-pocket expenses: a total of 6 hours of speech language services (the number of hours of services reflected within the IEP) from Laura Becker at the rate of $105.00 per hour, plus related transportation expenses, as discussed below.

Occupational therapy from Katina Lawdis starting in the fall of 2003

In the fall of 2003 (starting in September) Student continued to receive occupational therapy services from Sudbury through Regina Navia (Sudbury’s occupational therapist). Mother testified that Ms. Navia believed that a home component of occupational therapy should be provided, Parents’ private evaluation recommended additional occupational therapy, and Mother requested it, but no home component or other additional occupational therapy was provided. Mother explained that Parents therefore retained a private occupational therapist (Katina Lawdis) to provide Student with an extensive home component of occupational therapy services. Parents engaged Katina Lawdis for 38 hours of services (1×60 minutes per week) from September 14, 2003 through June 13, 2004, for total-out-of pocket expenses of $3,000. Exhibits P-50, P-52; Facts par. 47, 49.

There was no testimony from Ms. Lawdis or Ms. Navia to support Parents’ position, nor does any written report or evaluation support Parents’ position. Ms. Dixson testified that the home component recommended by Ms. Navia (Sudbury’s occupational therapist) did not require services or training for Parents, but rather included only written materials for Parents so that they could help their son perform certain exercises. Facts par. 48. I fully credit the testimony of Ms. Dixson with respect to Ms. Navia’s recommendation. I find that there is insufficient basis to conclude that Sudbury should have provided additional occupational therapy services.

In addition, during the time period in question, Parents were accepting Sudbury’s proposed IEPs (see discussion above entitled “Accepted IEPs”) with respect to occupational therapy services. Parents cannot, on the one hand, accept an IEP thereby indicating that they agree with the types and amounts of services reflected within that IEP, and then, at a later time after the IEP has been implemented, complain that the types and amounts of services reflected within the IEP should have included additional services – in this case, a home occupational therapy services component. In short, Parents cannot now dispute the appropriateness of an accepted IEP.13

For these reasons, I find no basis for reimbursement of Parents’ expenses or for compensatory education with respect to Parents’ claims regarding home occupational therapy services.

Physical therapy services from January to June 2004

On January 22, 2004, Parent obtained a private physical therapy evaluation from Spaulding Rehabilitation. The evaluation recommended short-term outpatient skilled physical therapy for 4 to 6 visits (60 minute duration of each visit) with emphasis on a home exercise component. Mother testified that she agreed with the findings and recommendations of this evaluation, but they were not implemented in her son’s IEP. Exhibits P-24 (3 rd , 4 th , 5 th and 6 th pages), S-63; Facts par 87.

Parents seek compensatory services for the failure of Sudbury to provide physical therapy services to their son.

While Sudbury must consider these recommendations, it is not required to adopt them unless necessary for the provision of FAPE. Sudbury’s own physical therapist recommended only physical therapy consultation services. To implement these recommendations, Sudbury created a “sensory processing” goal that was implemented through direct occupational therapy. Facts par 53.

There was no testimony from a physical therapist or other expert regarding what physical therapy services should have been provided. I have no basis upon which I may conclude that the Spaulding recommendation is any more or less credible than the recommendation from Sudbury’s occupational therapist. I conclude that Parents have not met their burden of persuasion with respect to this claim.14

In addition, for the reasons explained immediately above regarding occupational therapy services from Katina Lawdis, I find that Parents are precluded from obtaining reimbursement regarding physical therapy during the time period of an accepted IEP.

For these reasons, I find in favor of Sudbury regarding this claim.

Implementation of the IEPs .

Within a document filed, at the Hearing Officer’s request during the course of the evidentiary hearing, Parents included relief requested for alleged failure to implement speech/auditory therapy from January 5, 2004 through June 17, 2004, academic support from September 3, 2003 through December 31, 2003, special education reading from September 3, 2003 through December 31, 2003, and special education math from September 3, 2003, all of which services were included within Student’s IEP. Parents raised this concern in light of the fact that these services were not reflected in Student’s classroom schedule. Exhibits P-52, P-53.

The classroom teacher (Locke) and CASE program administrator (Weiner) testified that speech/auditory services were provided, and Ms. Dixson testified that the remaining services were provided notwithstanding the fact that they were not listed within the classroom schedule. Facts par. 130. Parents provided no rebuttal evidence. I find the testimony of Ms. Locke, Ms. Weiner and Ms. Dixson to be credible and persuasive on this issue.

For these reasons, I find in favor of Sudbury with respect to this claim.

Psychological evaluation without consent .

On March 26, 2003, Mother gave consent to Sudbury to administer the following assessments to her son: learning aptitude/achievement assessment, speech and language assessment, educational assessment, observation of Student, and developmental home assessment. On May 7, 2003, Aimee Caldeira, M.S.Ed. (Sudbury Special Educator) performed an educational achievement evaluation of Student. After assessing Student, Ms. Caldeira had additional questions that she believed should be addressed through testing, and she asked Bette Rothman, EdD (Sudbury school psychologist) to do further testing for this purpose. On May 15, 2003, Dr. Rothman conducted cognitive testing of Student. Facts pars. 13, 17, 18, 19.

Parents take the position that Dr. Rothman performed a psychological assessment of their son without their consent. However, Mother testified that had she been asked to consent to a psychological evaluation, she would have done so, although she would not have wanted it to occur during the spring of 2003 because of the stress that her son was under at that time. Ms. Dixson testified that she considered Dr. Rothman’s testing to be less than a full psychological evaluation and that it is properly considered an extension of Ms. Caldeira’s testing, utilizing Dr. Rothman’s expertise. I fully credit Ms. Dixson’s testimony. Facts pars. 13, 20.

For these reasons, I find in favor of Sudbury regarding this claim.

Procedural claims .

Parents raise procedural claims with respect to the 2001-2002, 2002-2003 and 2003-2004 school years. These claims include the following.

Convening a Team meeting to consider an independent evaluation . Sudbury did not convene a Team meeting to consider the January 22, 2004 Spaulding independent evaluation regarding physical therapy. The state special education regulations clearly require that, under these circumstances, the Team meet to consider the Spaulding evaluation. The regulations state in relevant part:

Within ten (10) school days from the time the school district receives the report of the independent educational evaluation, the Team shall reconvene and consider the independent educational evaluation and whether a new or amended IEP is appropriate.15

It is not disputed that Sudbury never convened the Team to consider the Spaulding evaluation a nd thereby violated this regulatory requirement. The regulatory requirement is of obvious importance in that it provides an opportunity for the Team to consider the evaluation and recommendations. By failing to re-convene the Team, Sudbury also denied Student and his Parents the opportunity to discuss these issues with the other Team members and to participate in the possible development of an amended IEP that would be responsive to the evaluator’s recommendations.

Progress reports . Parents have made numerous claims regarding the appropriateness or timeliness of various progress reports. Special education law and regulations provide limited guidance regarding progress reports, requiring only that they describe the student’s progress towards his or her annual goals and the extent to which that progress is sufficient to enable the student to achieve the goals by the end of the year. The progress reports must be issued at the same times during the year as progress reports are issued for their non-disabled peers.16

There is ample evidence to support Parents’ claims that Sudbury, on a number of occasions, has not complied fully with this requirement. Facts pars. 7, 9, 11, 14, 75.

De scription of Student’s current performance . The federal special education regulations require that the IEP include a “statement of the child’s present levels of educational performance.”17 Parents presented ample evidence to persuade me that a number of the statements of Student’s performance levels in the IEPs did not coincide with his performance levels, at least as measured or observed by Parents’ service providers and experts. Facts pars. 96, 196.

Participation with non-disabled students . The IDEA requires that the IEP provide an explanation of the extent to which Student would participate with non-disabled students.18 The 1/04 – 1/05 IEP failed to comply with this requirement. Exhibits P-7, S-19.

Additional procedural claims . Parents have made brief reference to other alleged procedural violations – for example, in the facts section of their written closing argument at page 4, Parents noted an alleged failure of Sudbury to include all necessary persons in a Team meeting on June 6, 2003. I find this allegation to be true. Facts par. 28. Parents also stated in their written closing argument at page 30 that the 1/04 – 1/05 IEP did not indicate Student’s participation in extracurricular and other nonacademic activities, in violation of 34 CFR 300.347(a)(3)(ii). Exhibits P-7, S-19. I agree with Parents regarding this claim. Parents have provided no argument with respect to the legal implications of these additional claims.

Analysis of procedural claims . When Parents allege procedural violations, they may recover only if there is “some rational basis to believe that procedural inadequacies compromised the pupil’s right to an appropriate education, seriously hampered the parents’ opportunity to participate in the formulation process, or caused a deprivation of educational benefits.”19

With respect to the 20001-2002, 2002-2003 and 2003-2004 school years, Parents provided no evidence from which I may conclude that the above procedural violations resulted in harm to Student or his Parents. For this reason, I decline to order any relief with respect to these procedural violations.

B. June 2004 through June 2005

Introduction

Parents seek reimbursement for out-of-pocket expenses for educational services provided from June 2004 through June 2005. During this period of time, Parents withdrew Student from the placement proposed by Sudbury and privately arranged for educational services.

Parents who “unilaterally change their child’s placement during the pendency of review proceedings, without the consent of state or local school officials, do so at their own financial risk.”20 Parents are entitled to reimbursement for their out-of-pocket expenses only if I conclude both that the proposed special education services and placement violated state or federal special education law and that the privately-provided educational services were “proper” under the federal statute.21

In addressing this two-part standard, I first consider the appropriateness of Sudbury’s proposed IEP for the period June 2004 to June 2005. In addressing this issue, I consider whether the IEP was correct procedurally as well as substantively.

Procedural flaws in the development of the 6/04 to 6/05 IEP

A central procedural requirement under the IDEA is a Team meeting for the purpose developing the IEP, thus allowing Parents an appropriate opportunity to participate as equal partners in the IEP formulation process.

The U.S. Department of Education (DOE) regulations explicitly require that, for this purpose, the IEP be developed “in a meeting” in which the parents have the opportunity to participate.22

DOE provides further guidance in its interpretation of its regulations regarding the central role of parents in the IEP formulation process:

The parents of a child with a disability are expected to be equal participants along with school personnel, in developing, reviewing, and revising the IEP for their child. This is an active role in which the parents . . . join with the other participants in deciding . . . what services the agency will provide to the child and in what setting .23

The courts have similarly described the importance of the IEP, as well as the need for parents to have the opportunity to participate in its development. For example, the Supreme Court has stated that the “IEP is the primary safeguard” in order to “guarantee parents both an opportunity for meaningful input into all decisions affecting their child’s education and the right to seek review of any decisions they think inappropriate.”24 A lower federal Court has further explained: procedural violations that interfere with parental participation in the IEP formulation process undermine the very essence of the IDEA. An IEP which addresses the unique needs of the child cannot be developed if those people who are most familiar with the child’s needs are not involved or fully informed.25

The following undisputed facts indicate that Parents were denied their rights to participate in the development of the 2004-2005 IEP. By letter of May 7, 2004 to Luan Dean (Sudbury’s out-of-district coordinator), Mother requested an IEP Team meeting to discuss Student’s progress, identify the causes of his apparent lack of progress, determine what remediations were needed, rewrite the IEP with measurable goals and benchmarks, and address Student’s need for summer services. Facts par. 97.

A Team meeting was held on May 14, 2004. The stated purpose of the meeting, as reflected within Sudbury’s written meeting notice, was limited simply to “Parent request to address various concerns.” Nevertheless, Mother apparently had hoped that the meeting would serve the purpose of developing a new IEP even though no one else at the May 2005 meeting believed that the purpose of the meeting was to develop a new IEP for the 2004-2005 school year. During the May 2004 meeting, it became apparent to Parents (and everyone else in attendance) that this meeting would not be utilized for the purpose of developing a new IEP for Student. Facts par. 98.

At the time of the May 14, 2004 meeting, it was understood by Sudbury and CASE that the then current IEP (for the period from January 2004 to January 2005 IEP) needed to be revised for the 2004-2005 school year. Sudbury and CASE believed that the re-write of the IEP should occur in the early fall of 2004 after consideration of Student’s progress over the summer. Facts par. 104.

Only after the conclusion of the May 14, 2004 meeting did CASE and Sudbury staff change their minds regarding the timing of the development of a revised IEP for the 2004-2005 school year; and they decided to develop a new IEP, for the new time period of June 2004 to June 2005, without further delay. Dr. Weiner then notified Parents in writing of this change regarding IEP planning and development. Facts par. 105.

Dr. Weiner’s May 17, 2004 e-mail to Parents indicated that staff would be working to develop a new IEP for the period 6/04 to 6/05 and that the IEP would include a change of services (beginning in September), appropriate goals and benchmarks, as well as goals that could be addressed during the summer. CASE and Sudbury staff proceeded to develop the revised IEP without convening an IEP Team meeting for this purpose. After completion of a proposed revised IEP for the summer of 2004 and the following school year, Sudbury sent it to Parents. Facts pars. 105, 108.

Parents believed that, if appropriately written, a revised IEP would resolve their concerns. However, upon receipt of the proposed IEP, Parents expressed strong objection, stating that the IEP would result in inappropriate services for their son. Parents then sought a Team meeting to re-consider the new IEP. Facts pars. 105, 110, 111,112.

Parents made clear their views at the time, through an e-mail of June 7, 2004 to Ms. Dean with a copy sent to Ms. Dixson, in which Mother wrote, in part:

As I have indicated in my e-mail messages and in my letter, we did not participate in writing the IEP and it does not address our Vision and Concerns. We do not believe it is close enough for signing. CASE certainly did not have time to address the Concerns that we wrote for the IEP. We did not have any discussions or reviews of draft material for the IEP that was sent, so you should not think that we were part of a team process. As you know, at the last TEAM Meeting on May 14 th , CASE refused to write a new IEP so we did not discuss writing IEP goals and other content. We left the meeting by agreeing to disagree on the writing of a new IEP. It was not until Monday May 17 th that Dr. Weiner sent an e-mail message saying that CASE would rewrite the IEP.

Exhibit P-36. Similarly, Parents’ views were reflected in a subsequent letter from Parents to Ms. Dean, dated July 12, 2004. Exhibit P-37. I fully credit Parents’ understanding of the sequence of events.

In response to Parents’ concerns in June 2004 and in an apparent attempt to address Parents’ statement that they had not participated in the development of the IEP, Sudbury scheduled a Team meeting, with the written meeting notice providing the following purpose for the meeting: “IEP development per parent request”. This was the only meeting notice that indicated that the purpose of the Team meeting was for the development of the 6/04-6/05 IEP. Facts par. 116, 117.

Sudbury scheduled the June 2004 Team meeting without first consulting Parents. The meeting was scheduled by Sudbury to occur at a time that was not convenient for Parents’ attorney. When Parents notified Sudbury of this scheduling conflict, Sudbury cancelled the Team meeting. Sudbury made no further attempt to schedule a Team meeting to consider the revised IEP notwithstanding additional, repeated requests from Parents.26 The next Team meeting occurred in the spring of 2005 and, at that meeting, Sudbury refused to consider special education services or placement for the 2004-2005 school year. Facts par. 177.27

As a result, no IEP Team meeting occurred during which the IEP (for the period June 2004 to June 2005) was developed, and consequently Parents were denied the opportunity to participate in the development of this IEP.

I do not suggest that the IEP was developed without consideration of Parents’ views. Sudbury correctly points out that Parents had many opportunities (during the May 14 th Team meeting and previous Team meetings as well as through other sometimes lengthy communications) to express their views regarding the then current and previous IEPs. It is necessary but not sufficient that Sudbury consider Parents’ views. As the above analysis makes clear, Parents must also be given an opportunity to participate in the meeting (and discussions during that meeting) with Sudbury that are utilized to decide what is to be included within the revised IEP. In short, Parents cannot be said to participate in the development of the new IEP when none of the meetings with Parents were for that purpose.

I also note that Sudbury failed to convene a Team meeting to discuss the Yale evaluation. The state special education regulations require the Team meet to meet and consider an independent evaluation w ithin ten school days from the time the school district received the report.28

The First Circuit has made clear that procedural inadequacies that “seriously hampered the parents’ opportunity to participate in the [IEP] formulation process” result in denial of FAPE.29 Other circuit courts concur.30

I find that Sudbury’s failure to have a Team meeting for the purpose of developing the June 2004 to June 2005 IEP denied Parents their procedural rights under this standard, denying Parents FAPE and entitling them to privately obtain appropriate special education services and seek reimbursement from Sudbury.

Before turning to the question of whether Parents did, in fact, obtain educational services for which they should be reimbursed, I next consider whether the IEP in question (for the period June 2004 to June 2005) was reasonably calculated to provide Student with FAPE pursuant to state and federal special education law.

Appropriateness of the June 2004 to June 2005 IEP

When Parents received the June 2004 to June 2005 IEP during the first half of June 2004, they did not immediately accept or reject it. Then, in a series of letters to Ms. Dixson, dated July 12, 2004, Parents rejected the IEP for the period 1/5/04 to 1/5/05 and also rejected the revised IEP for the period June 2004 to June 2005. This letter was received by Sudbury. Parents repeated their rejection of the IEPs in a letter of July 20, 2004. Facts pars. 131, 132, 138. In light of Parents’ rejection of the IEP, I consider its appropriateness.

As discussed above, Sudbury’s responsibility is to provide Student with FAPE. Under state and federal special education law, FAPE requires that a student’s individualized education program (IEP) be tailored to address the student’s unique needs31 in a way reasonably calculated to enable the student to make meaningful32 and effective33 educational progress in the least restrictive environment.34 The adequacy of a student’s educational progress is gauged in relation to the potential of the particular student.35 S pecial education services are to be designed to develop a student’s individual educational potential .36

I note the unusually high level of experience and expertise of Parents’ three experts – Dr. Becker, Ms. Wisnia and Dr. Stevens. All three have impressive credentials regarding the work in each of their particular fields. Facts pars. 253, 256, 257. In addition, all three have had the opportunity to assess Student (at least informally) and work with him over a period of time. I found that all three testified in a candid and careful manner and that all three have expertise relevant to Student’s reading difficulties. I fully credit their testimony. I also note that Sudbury’s witnesses did not include anyone with a comparable level of expertise related to Student’s learning how to read, which is the central area of dispute in this case.

It is not disputed by the parties that learning to read is a fundamental component of public education. Not only is reading, in and of itself, a skill important to everyday life, including activities of daily living and employment, but reading also quickly becomes a principal means by which children learn within school and becomes an essential tool for a student’s education thereafter.37 It seems self-evident that an appropriate IEP for Student must satisfactorily address this educational skill in a meaningful and effective way, consistent with the student’s capacity to learn to read. There is ample evidence to support the proposition, and it is not disputed, that Student has the capacity to learn how to read at least at the functional level and that one of the essential components of his IEP is to allow him the opportunity to learn this skill. Exhibits P-6, S-21; Facts pars. 108, 200, 209, 211, 248.

It is also apparent to all who have worked with Student that he has a combination of deficits that significantly impact him in the development of skills necessary for reading. Although many special education students have significant reading difficulties, what make Student’s deficits in this area relatively unique are the severity and combination of his deficits that impact upon his learning how to read. Facts pars. 195, 229, 230.

Student’s reading-related deficits include a significant phonologically-based, language-based learning disability, attentional and executive functioning deficits, auditory processing deficits, difficulties regarding timing, and extremely low visual-perceptual skills.38 In addition, Student’s difficulties learning reading skills have extended to his efforts to cope with frustration, leading him to become overwhelmed and withdraw or “shut-down”. It has been the severity and combination of reading-related disabilities that have made it so difficult for Student to learn how to read, that have made it so difficult for his service providers to teach Student how to read and that have required an intensive program of services in order for Student to make any significant progress in this area. Facts pars. 44, 195, 215, 229, 230.

Student’s failure to make meaningful and effective progress regarding reading skills was long-standing. When comparing the results of the March/April 2003 evaluation (exhibits S-58, P-12) with the results of her own evaluation in September/October 2003 (7 months later), Dr. Becker found that Student was simply not making appropriate progress – for example, Student had had lost ground with respect to his ability to understand directions and his word structure was significantly down. In addition, Dr. Becker compared Student’s phonological awareness with educational testing by Aimee Caldeira in May 7, 2003 (exhibit P-23) where he scored in low average range across the board. Dr. Becker found that Student had not made any progress in articulation from the April 2001 and September 2003 Sudbury tests to her evaluation of Student in September/October 2003. She noted that the sounds he was able to make in kindergarten were essentially the same sounds that he was able to make when she evaluated him two years later. Facts pars. 241, 242.

Student continued to make little progress in these areas. Dr. Becker testified that from September/October 2003 until June 2004, Student did not make any meaningful progress in the level of reading skills — for example, acquisition of sound-symbol association and ability to identify letters — and he did not make progress regarding his phonological awareness. I fully credit Dr. Becker’s testimony. Facts pars. 243, 244.

Student’s teacher at the CASE program (Ms. Locke) did not disagree. Although she wrote in a progress report a general statement that Student was continuing to make progress in his expressive and receptive language, she testified more specifically that Student was at the level of working to develop his phonological processing skills to understand the sound-symbol associations, noting that phonological processing is a foundation skill that must be learned before proceeding to any other skills relating to reading. She explained that by the end of the 2003-2004 school year, Student continued to have difficulty learning these sound-symbol associations and was variable in his abilities in this area. Facts pars. 122, 124.

Relying principally on the reports of others and several observations, the CASE Administrator (Dr. Weiner) wrote that Student was demonstrating improvement in letter identification, sound/symbol association, discrimination between sounds and written language and she testified that Student was generally making progress. However, Dr. Weiner also acknowledged Student’s slow progress in reading and that phonemic skills remained the most difficult area for Student. Facts pars. 125, 126, 127.

In comparison to the other witnesses who testified regarding Student’s progress, I found that Dr. Weiner had less direct knowledge of Student’s abilities and how his skills had changed while he was at CASE, and less expertise in this area than Parents’ three experts. I discount Dr. Weiner’s opinions where they conflict with the opinions of Ms. Locke, Dr. Becker and Ms. Wisnia.

Student’s lack of progress in the area of reading was further confirmed when he began receiving specialized reading services from Wisnia and Associates. When Student began receiving these services during the beginning of the summer of 2004, Ms. Wisnia (who has significant experience and expertise specifically in the area of reading) found that Student’s phonological knowledge skills were not well developed. She noted that Student had severe articulation difficulties, did not have correct sound structure, did not use correct sentence structure and could not organize himself (sequencing). Facts pars. 191, 195.

Contrary to what was written regarding his current performance level on his IEP, Ms. Wisnia found that at the beginning of the summer of 2004, Student did not know the alphabet, he could not spell his name, and he could not rhyme comfortably. Similarly, when working with Student at this time, Dr. Becker found that Student could not read and did not have the requisite skills to learn how to read – for example, he could not identify letters consistently, only sometimes could he make sound-symbol correspondence, and he did not have efficient or useful strategies. Dr. Becker noted that had Student received the correct educational program from Sudbury, Student would have likely made progress in learning the requisite skills to be able to read. Facts pars. 196, 230, 244.

For these reasons, I find that Student had not made meaningful or effective progress commensurate with his potential to learn through June 2004, in particular with respect to reading and speech skills.39

A relatively subjective, but nonetheless important, additional indicator of the lack of success of Sudbury’s efforts to teach Student how to read was Student’s own responses to the reading instruction that he was receiving.

Mother noticed over the course of the January to June 2004 period that her son became increasingly upset regarding his schoolwork. She testified that from March 4, 2004 to May 4, 2004, her son’s behaviors at home got worse, having breakdowns over not wanting to read and becoming more resistant to going to school. By the end of June 2004, Mother found her son to be very frustrated with school and with reading in particular. If Mother tried to teach him, he would cry and resist and go under a table. Facts pars. 119, 120.

Ms. Locke noted that because Student had failed so many times, he “definitely suffered” when it came time to do something difficult. At these times in the classroom, he demonstrated “refusal behavior” – he would say he did not want to do it, and he needed a significant amount of encouragement. She testified that Student was reticent with respect to anything associated with reading. Facts par. 123.

Dr. Becker testified that when Student first came to see her in October 2003, he was a child who came in excited about reading with vivacity and he thought of himself as a curious and intelligent little boy, and over time, he saw himself as less capable and his excitement for learning was lost. She explained that in June 2004, she found that there were sessions where he could not work with him – he became so frustrated that he was angry and so she would have to engage him in a computer game at which he could be successful. She explained that early on, this anger and frustration came from not wanting to see another speech teacher. She noted that in June 2004, sometimes Student would simply come into a session and cry and say that he is stupid. Facts par. 238.

Ms. Wisnia and Dr. Stevens testified to similar experiences working with Student in June and July of 2004. Ms. Wisnia reported that Student spent time crying and hiding under the table and told her that he cannot read, that he is stupid and that he cannot learn. Dr. Stevens described Student during this time as intimidated and insecure, hiding under the table on the first visit. Dr. Stevens opined that at this point Student’s experience in school had been failure and his behavior was a result of that experience. Ms. Wisnia and Dr. Stevens also reported significant improvements in Student’s behavior over time, as Student became more and more comfortable and more and more successful with the instruction he was receiving. Facts pars. 194, 204, 224.

Mother had her son evaluated by a psychiatrist (Dr. Hauptman) in August 2004. Mother testified that Dr. Hauptman’s opinion was that Student had distress resulting from an incompatible school environment. He explained that Student’s behavior was secondary to being asked to do things related to school that he was not able to do, with the result that Student was demonstrating anxiety, boredom and frustration. Facts par. 119.

From this evidence, it is apparent not only that Student suffered a great deal as a result of his lack of progress relevant to reading through June 2004, but also his avoidance behavior made it increasingly difficult to provide him with effective reading instruction.

Student’s progress through June 2004 is relevant because Sudbury proposed, through its June 2004 to June 2005 IEP, to continue the services and placement at CASE. The only change in services that would possibly have improved Student’s rate of progress was the addition of services from a reading teacher. Facts par. 108. Although it seems logical to assume that these additional services would have benefited Student, there was no evidence explaining the nature of these services or their likely implications on Student’s progress. The reading teacher did not attend any of the Team meetings in which Student’s services for the 2004-2005 school year were discussed, she did not testify at the Hearing, nor did anyone testify as to what services she would have provided. In short, there is no basis from which one could conclude that the special education and related services described within the June 2004 to June 2005 IEP would have, in any meaningful or significant way, improved Student’s progress in comparison to the progress he was making in the CASE program from January to June 2004.

Student’s progress through June 2004 is also relevant because the appropriateness of an IEP, must be judged by “ what was, and was not, objectively reasonable when the snapshot was taken, that is, at the time the IEP was promulgated”.40 Sudbury knew or should have known what Student’s progress had been through June 2004 and that a continuation of the services and placement that had been provided through June 2004 would not be reasonably calculated to result in sufficient progress for Student.

There was additional, persuasive testimony that Sudbury’s proposed IEP for the 2004-2005 school year was not appropriate. Dr. Becker testified that given Student’s profile of multiple deficits (phonological awareness, visual deficits, naming deficits, phonological output disorder and difficulty learning rote information), he requires a very intensive program in phonological awareness with significant support to learn the rote information and a great deal of work on rapid automatic naming; and all of this needs to be addressed in a way that threads all of these components into a single program to develop pre-reading skills. Dr. Becker testified that she did not find this requisite program reflected in the IEP for the 2004-2005 school year. Facts pars. 229, 230, 235, 237.

Dr. Becker testified that with respect to this IEP, a number of the goals were quite good, but that the speech goal (goal # 8) was too limited and not sufficiently intense. She noted that the phonological goal from the previous IEP was fused into the reading goal (goal # 1 that includes all aspects of reading) and that this goal was too limited. She found that it was missing a significant number of phonological tasks that are central to learning how to read such as sound manipulation within words, and being able to take a syllable off a word – that is, the kind of flexibility needed to learn how to read. Facts par. 234.

Dr. Becker testified that the June 2004 to June 2005 IEP provided a variety of different methodologies to develop reading skills (Primary Phonics, Phonics and How They Work, Wilson Reading program and Telian Multisensory Mnemonic Letter Card Program) and for someone such as Student who is having a difficult time acquiring reading and pre-reading skills, having a combination of 3 or 4 programs is not going to work – he needs a single program that is systematic in that the letters and sounds that are being introduced in reading are also being introduced in phonological awareness as well as articulation so that Student starts to see himself as a user of print. Facts par. 236.

Dr. Stevens found nothing within the IEP for June 2004 to June 2005 (exhibit P-6) to address appropriately Student’s fine motor and visual perceptual deficits. He concluded that the IEP for June 2004 to June 2005 would not have addressed Student’s developmental barriers to learning in the areas that Dr. Stevens was addressing – coordination of his eyes, understanding what he is seeing and coordination of his body. He explained that if these barriers are not addressed appropriately, Student would likely continue to have significant barriers to meaningful learning, and his learning would be confusing and stressful, if not impossible. He explained that these barriers can be removed with a systematic approach that is not included within the IEP. Facts pars. 219-223.

I fully credit the testimony of Dr. Becker and Dr. Stevens regarding the inappropriateness of the June 2004 to June 2005 IEP.

Finally, I note that goals # 1, 2 and 3 within Student’s IEPs simply provide that Student “will improve his reading [or written expression or mathematics] skills consistent with Massachusetts Curriculum Frameworks for Grade 1 [or 2]”. These goals are written so generally as not to be measurable. There is no opportunity to understand from the goal what criteria must be met in order to achieve these goals. The federal special education regulations require that the IEP include measurable goals relative to a student’s educational needs that result from his/her disability.41

For all of these reasons, I conclude that the IEP proposed by Sudbury for the 2004-2005 school year was not reasonably calculated to provide Student with FAPE.

Services during the summer of 2004

The appropriateness of an IEP for the school year and the appropriateness of an IEP for the summer are judged by different standards. The state special education regulations utilize a regression standard to determine whether a summer program may be appropriate:

An extended year program may be identified if the student has demonstrated or is likely to demonstrate substantial regression in his or her learning skills and/or substantial difficulty in relearning such skills if an extended program is not provided.42

The federal special education regulations employ a FAPE standard:
(a) General . (1) Each public agency shall ensure that extended school year services are available as necessary to provide FAPE, consistent with paragraph (a)(2) of this section. (2) Extended school year services must be provided only if a child’s IEP team determines, on an individual basis, in accordance with §§300.340-300.350, that the services are necessary for the provision of FAPE to the child.43

A number of courts have interpreted the federal regulatory standard to mean that summer services are appropriate when the benefits accrued to a disabled child during a regular school year will be significantly jeopardized if he is not provided with an educational program during the summer months, with the parameter of requisite summer services defined by what is necessary to avoid this outcome.44

During the summer of 2003, Student received services that were accepted by Parents. These services included speech/language for 30 minutes, twice per week for six weeks (total of 6 hours); literacy for 30 minutes, 3 times per week for six weeks (total of 9 hours); and occupational therapy for 30 minutes, twice per week for six weeks (total of 6 hours);. Exhibits P-8, S-7.

A year later, the following language was added within the June 2004 to June 2005 IEP to address Student’s services for the summer of 2004:

For the summer of 2004, the Sudbury Public Schools has agreed to fund an amount of money equal to what we would have paid Sudbury’s teachers and therapists to provide 3 hours of reading, 2 hours of speech & language, and one hour of occupational therapy per week for six weeks. Our rate of pay is $35 per hour; based on six hours per week for six weeks this amount equals $1260

The parents have agreed to make arrangements for the professionals who currently work with [Student] to provide these services per the goals of his IEP. At the end of the summer, the parents will provide Sudbury with cancelled checks for payment of these services and Sudbury will reimburse the parents up to $1260. Each professional employed will provide the parents/Sudbury Schools with a brief progress report at the end of the summer which reflects the skills worked upon per [Student’s] IEP.

Parents take the position that because there had been no Team meeting to determine what Student’s summer services should be provided, Parents were left with no option but to decide themselves what those services should be and to make arrangements for them. Parents proceeded to arrange for and obtain summer services for their son without assistance or other involvement from Sudbury – reading tutorial services from Wisnia and Associates, occupational therapy from Katina Lawdis, visual skills services from David Stevens and speech language services from Laura Becker.

For the reasons described above, Sudbury’s IEP for the summer of 2004 was not correctly developed through an IEP Team meeting and therefore may not be considered to be appropriate. However, the lack of an appropriate IEP did not give Parents a “blank check” to obtain whatever services they deemed appropriate for their son. In order to be appropriate for reimbursement, the summer services obtained by Parents must be consistent with the above-described regulatory standards, which may result in significantly less intensive services than during the school year.

As noted above, in its proposed IEP, Sudbury proposed the following summer services: reading for 3 hours each week for 6 weeks (total of 18 hours), speech language services for 2 hours each week for 6 weeks (total of 12 hours), and occupational therapy for one hour each week for 6 weeks (total of 6 hours).

Parents arranged privately for more services than are reflected within the proposed IEP. Exhibits P-48, P-50, P-52. Although Parents placed into evidence a significant amount of testimony and documentation regarding their son’s need for special education and related services in general, they did not provide sufficient credible evidence as to what special education and related services should be provided during the summer consistent with the above-described regulatory standards. Dr. Becker testified only briefly regarding the summer of 2004 and did not provide sufficient basis for me to understand what services would be necessary to satisfy the above-stated regulatory standards regarding summer services.

I find that Sudbury, through its proposed IEP, has conceded the need for summer services to the extent proposed in that IEP, and Parents have not justified a different type or quantity of summer services than what Sudbury proposed.

Accordingly, I accept the type and quantity of services proposed by Sudbury as appropriate for the summer of 2004.

Through its proposed IEP, Sudbury sought to limit the summer services to a total amount of money, reflecting what it pays its own service providers ($35.00 per hour). Parents, of course, never accepted this restriction, nor does it seem reasonable to impose it upon them since to do so would, in effect, significantly limit the amount of services that Student would receive. Sudbury cannot, on the one hand, take the position that certain services are needed by Student and then, on the other hand, significantly reduce those services through funding restrictions. Ultimately, Parents were entitled to obtain the requisite services through private service providers and to be reimbursed fully, provided that the rates of their service providers are reasonable. I find the hourly rates of Parents’ service providers, reflected below, to be reasonable.

For these reasons, I find that with respect to services provided in the summer of 2004, Sudbury shall reimburse Parents for their following out-of-pocket expenses: a total of 18 hours of reading services from Judith Wisnia and Associates at the rate of $70.00 per hour; a total of 12 hours of speech language services from Laura Becker at the rate of $105.00 per hour; a total of 6 hours of occupational therapy services from Katina Lawdis at the rate of $80.00 per hour; and related transportation expenses, as discussed below.

Appropriateness of the services provided from September 2004 through May 2005

Having determined that Sudbury did not propose an appropriate IEP for the 2004-2005 school year, I turn to the question of whether Parents should be reimbursed for the educational services that they arranged and provided for their son in lieu of the services proposed by Sudbury.

Legal standard . Parents are entitled to reimbursement for their out-of-pocket expenses only if I conclude not only that the proposed IEP violated the IDEA but also that the privately-provided educational services were appropriate. Not all of the statutory requirements of FAPE apply to private educational services.45 Even so, Parents will not be entitled to reimbursement for the privately obtained services unless they offered Student “an education otherwise proper under [the] IDEA.”46 When a public school system has defaulted on its obligations under the Act, 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”.47 The private educational services must, at a minimum, “provide some element of special education services in which the public school placement was deficient.”48

Services from Wisnia and Associates . During the summer of 2004, Parents did not intend that their privately-obtained services through a variety of providers would continue into, much less through, the 2004-2005 school year. They hoped and expected that with the assistance of Sudbury staff and those working privately with Parents (including their attorney), an appropriate special education placement (either a public or private school) would be identified.

During the summer of 2004, Sudbury and Parents made significant efforts to locate such a placement. However, by the end of the summer, no additional options had been identified either by Sudbury or by Parents. Facts pars.140, 142, 144, 145, 147.

When no such placement was identified by the beginning of the 2004-2005 school year, Parents were faced with only three choices – either providing no private services for their son thereby leaving their son without an education, returning their son to what they justifiably believed to be inappropriate services and placement at CASE, or continuing with the services that had been provided during the summer and that appeared to be resulting in significant progress for their son in the area of greatest need (reading skills). Under these circumstances, it was understandable and appropriate that Parents chose the latter course.

Parents asked Ms. Wisnia (and she agreed) to put together an educational program of 12 weeks from September to November, which would focus specifically on Student’s phonological awareness deficits for the purpose of developing Student’s reading skills. This program was similar to the services from Wisnia and Associates during the summer but more intensive. Under this arrangement, Student began receiving 26 hours of services (25 hours of direct services and one hour of staff organizing/communication) per week during the fall of 2004. Although Student worked 1:1 with a program specialist for most of this time, at other times there would be other children at Student’s level with whom Student would work. Facts par. 202.

Parents both hoped and expected that the 12-week extension of the summer services, discussed above, would allow sufficient time to identify a public or private school placement. When arranging for these services, it was not the intent of Parents that the services would need to be continued more than 12 weeks into the school year. Parents also made clear in mid-September that they would like Sudbury to consider additional services within the Public Schools that would complement the private services. Facts par. 157, 158. Both Parents and Sudbury staff continued to seek to identify an appropriate public or private placement during this 12-week period, but were unsuccessful. Facts pars. 159, 161, 164, 168. In short, neither Sudbury nor Parents were able to identify any appropriate services or placement as an alternative to a continuation of what Student had been receiving from Wisnia and Associates notwithstanding their significant efforts.

Near the end of the 12-week period, with no other educational program available to Student, Parents again had no real choice but to continue the array of privately-obtained services. At this time, Parents requested that Ms. Wisnia develop (and Ms. Wisnia agreed) an expanded program for Student that would include language arts, math, history, science and music. Ms. Wisnia consulted with Dr. Hauptman who runs the Community Therapeutic Day School and who had offered to help develop an appropriate program for Student, in order to ensure that she had the appropriate pieces to a more comprehensive educational program than she had provided to Student previously. She also began using a program entitled Fast ForWord to help with Student’s auditory processing deficits – she opined that this program was important for Student in that it helped him with processing speed, working memory and reading. Facts par. 206.

Despite continuing efforts of Parents and Sudbury, no additional options for services or placement were identified. Sudbury reported that it had exhausted all possible programs that could be considered. Facts pars. 169, 170, 173, 176.

I find, on the basis of undisputed evidence, that Parents had no effective choice other than to utilize Wisnia and Associates as the principal provider of educational services. I further find, for the reasons explained below, that Student made meaningful and effective progress regarding his reading and language skills provided by Wisnia and Associates during the period of time from September 2004 to April 1, 2005.

By November 2004, Wisnia and Associates was reporting that Student had learned sound/symbol relationships and effective strategies in all areas addressed, and he was becoming less resistant to learning how to read. Exhibit P-11. In mid-November 2004, Ms. Wisnia noted in a letter that she could not recall ever seeing a child make as much progress in such a short time as Student. By April 1, 2005, Student had demonstrated substantial, positive changes in his reading, understanding, fluency, processing speed, math, science and writing skills. Facts pars. 199, 200, 201, 204, 205, 209, 210, 211.

Dr. Becker was persuasive that Student had made “huge progress” regarding phonological awareness, his ability to name letters, ability to begin to read, manipulation of sounds, and writing during this time period. She concluded that the Wisnia program “pulled him out of his woods” regarding his ability to learn how to read. Facts par. 246.

Equally important, significant improvement was also noted with respect to Student’s emotional/behavioral difficulties related to learning how to read — Student had developed a joy of learning. Dr. Becker reported that Student, for the first time, began to see himself as a reader. Facts pars. 209, 247.

This progress did not continue after the end of March 2005. Beginning April 1, 2005 and continuing to May 26, 2005 when her services ended, Student’s time with Wisnia and Associates was reduced from 25 hours per week to 4 hours per week. The services from Wisnia and Associates were being paid for privately by Parents, and Mother testified that the reason for the reduction of services was simply that Parents did not have sufficient financial resources to continue with more than 4 hours per week of services. The program was reduced to phonemic awareness, reading and math, essentially to try to “hold him together” with respect to what he had learned. Facts par. 207.

During this time period of April 1 to May 26, 2005, Student regressed and became angry. Ms. Wisnia explained this regression as to be expected with a child who has been receiving intensive language-based teaching that is carried through all of the instruction for 25 hours each week, and then this instruction is reduced to 4 hours per week. Ms. Wisnia opined, and there is no contradictory evidence, that once Student was put back into an intensive, language-based program (such as Curtis Blake), he would likely resume his progress. She also noted that the anger was understandable given the fact that Student had expected to be able to continue receiving the 25 hours per week of instruction. The written progress report for this period of time reflected Student’s regression. Exhibit S-68. Although this regression was a setback for Student, I find that it was likely to be temporary and does not diminish Student’s overall accomplishments and progress in learning how to read. Facts par. 208.

In light of the importance to Student that he learn how to read and improve his language skills, in light of how limited his progress had been through June 2004 through services from Sudbury with respect to these areas, and in light of the remarkable progress that he made in these areas during a relatively short period of time, I find the services from Wisnia and Associates to be appropriate. Parents privately obtained from Wisnia and Associates a large number of hours of services, and I find that this was necessary in order to provide the intensity of services needed by Student. I also consider the equities, discussed in a separate section below. For these reasons, I conclude that Parents should be reimbursed for all of these services.

I further find that Parents should be reimbursed for the cost of the Fast ForWord program purchased by Wisnia and Associates for Student. Ms. Wisnia’s credible testimony regarding the appropriateness of this program was persuasive. Ms. Weiner sought to rebut Ms. Wisnia’s testimony; but Ms. Weiner appeared to have far less expertise regarding this matter than Ms. Wisnia and I fully credit Ms. Wisnia’s testimony in this regard. Facts par. 206.

Services from Dr. Becker and Dr. Stevens . From September 2004 to June 2005, Student continued to receive speech language services from Dr. Becker for one hour twice per week and individual therapy from Dr. Stevens and Associates for 50 minutes twice per week with Dr. Stevens also meeting with Student every ten weeks to re-evaluate his progress and meet with Parents.

There is ample evidence to support, and Sudbury does not dispute, Student’s significant progress as a result of the private services from Dr. Stevens and that these services addressed critical deficits relative to Student’s learning how to read. Facts pars. 213, 214, 215, 216, 217, 218, 227.

It is not disputed by Sudbury that Dr. Becker’s speech language services were needed and appropriate. Facts par. 228.

I therefore find that these private services were appropriate. I also consider the equities, discussed in a separate section below. For these reasons, I conclude that Parents’ costs should be fully reimbursed.

Services from Sudbury Extended Day . Parents placed Student into Sudbury Extended Day during the 2004-2005 school year. Parents are requesting reimbursement for these services. Sudbury Extended Day is a private, non-profit organization that provides after school services. These services are located on Sudbury Public Schools property. Appropriate developmental activities are provided and children may be provided assistance with homework although Sudbury Extended Day services are not considered educational in nature in that Sudbury Extended Day does not provide any special or regular education services that would correspond with Sudbury education expectations, and it is not a part of the Sudbury Public Schools. Facts par. 190.

Undoubtedly, it is unusual to allow Parents to be reimbursed for these kinds of services. Yet, for the following reasons, I deem it appropriate within the context of the particular facts of the instant dispute.

In its arguments, Sudbury has argued that the educational services privately provided by Parents lacked any kind of classroom or group instruction during which Student would be allowed the opportunity to learn with other children. Sudbury witnesses, particularly Ms. Dixson, were particularly critical of the Wisnia and Associates program for this reason. Parents do not contend that its privately-obtained services replicated a classroom experience where their son would routinely learn with and from other children.

Faced with the realities of an inappropriate placement at CASE where Student would not likely make progress regarding his reading skills or more restrictive services that would meet Student’s principal academic needs, Parents appropriately chose the latter. In September 2004, Parents sought, unsuccessfully, to obtain additional services within the public school setting, which would have allowed for contact with other children. Facts par. 157. Sudbury offered no such services. Left to their own resources, they then did what reasonably appeared to be the only thing available to them to help compensate for the largely isolated learning of their son. That is, they placed him at the Sudbury Extended Day so that he would have the opportunity to learn informally from other children — for example, social and pragmatic skills simply by spending time with his peers.

I note that it is not a critical failure of these services that they are not considered “special education”, in the usual sense of that word and as used by Sudbury witnesses. Private school placement by a parent, in the face of an inadequate IEP, has been held to be reimbursable even though the services were not designated as a “special education” program so long as the services were “appropriately responsive to student’s needs.”49 I find that the Sudbury Extended Day services met this standard.

I also consider the equities, discussed in a separate section below.

For these reasons, I conclude that Parents’ costs for services received at Sudbury Extended Day should be fully reimbursed.

Consideration of the equities . The Supreme Court and First Circuit have made clear on several occasions that r eimbursement is a matter of equitable relief, with the decision-maker having the responsibility to consider, among other things, the reasonableness of the parties’ positions.50

As discussed above in more detail within the “ Services from Wisnia and Associates” section of this Decision, by the end of the summer of 2004 and throughout the 2004-2005 school year, Parents were faced with a dilemma. Sudbury’s proposed IEP, and the services and placement reflected within it, were not appropriate to remedy a long-standing failure to provide Student with a meaningful opportunity to learn how to read. With the assistance of Sudbury’s Administrator of Special Education (Ms. Dixson) and its Out-of-District Coordinator (Ms. Dean) and with the assistance of persons working privately with Parents, both Sudbury and Parents made diligent and extensive efforts to find an appropriate placement, yet these efforts continued to produce no alternative, proposed educational services or program for Student. Faced with this situation, Parents had no real choice other than to continue to piece together services were that were available to them and which had begun to be effective in addressing their son’s most pressing academic needs during the summer of 2004. Parents acted reasonably by making the best choice among the options available to them

As discussed above in the “ Services from Sudbury Extended Day” section of this Decision, Parents’ choice of private services inevitably resulted in education that was not in the mainstream and that offered little contact with other children. It was therefore particularly important that they included the Sudbury Extended Day services. I conclude that Parents acted reasonably in that they had no effective alternative in order to provide meaningful contact and learning with Student’s peers.

There is little dispute that services from Dr. Stevens and Dr. Becker were essential, additional components to what Wisnia and Associates was providing to Student, and therefore reflect reasonable conduct by Parents.

In the fall of 2004, it became apparent that Parents were not going to place Student back into the CASE program pursuant to this IEP during the 2004-2005 school year. Sudbury believed that its proposed IEP was appropriate, and might have simply maintained its position and not offered any alternative services. Instead, Sudbury, to its credit, made significant efforts (which, ultimately, proved unsuccessful) to locate and place Student into a different placement that would be acceptable to Parents. Sudbury made these efforts not because Sudbury believed it was required by law to do so, but rather Sudbury appeared to be motivated to try to find a program that would be acceptable to Parents so that Student would in fact be able to receive appropriate educational services during the 2004-2005 school year.

These were commendable efforts by Sudbury. They indicate Sudbury’s commitment to Student’s education. Yet, what weighs more heavily are two essential findings – first, that over the course of several years, Sudbury never offered or provided services that would be appropriate to address Student’s significant reading deficits; and second, Student’s effective progress in reading occurred as a direct result of Parents’ initiative, determination, understanding of their son’s needs and willingness to commit substantial economic resources.

For these reasons, I find that on balance the equities strongly favor reimbursement.

Conclusion regarding reimbursement for services from Wisnia and Associates, Stevens and Associates, Dr. Becker and Sudbury Extended Day, and reimbursement for Fast ForWord . For the above-stated reasons, I consider the services from Wisnia and Associates, Stevens and Associates, Dr. Becker and Sudbury Extended Day, and the Fast ForWord program all to be appropriate. I further find that the amounts sought for reimbursement are reasonable. Therefore Sudbury shall reimburse Parents for their out-of-pocket expenses for these services and program provided from September 2004 through June 2005.

Based upon Parents’ unrebutted submissions (exhibits P-48, P-50, P-52) and the above findings, I conclude that the costs to be reimbursed by Sudbury for the period September 2004 through June 2005 are as follows: speech language therapy from Dr. Becker for 65 sessions at the rate of $105.00 per session; cognitive development from Stevens and Associates for 71 sessions at the rate of $90.00 per session for 68 sessions with Ms. Hurley or Ms. Hiller and $120.00 per session for 3 sessions with Dr. Stevens; tutorial services from Wisnia and Associates for 859 hours at the rate of $60.00 per hour for 542 hours and at the rate of $70.00 per hour for 317 hours; Sudbury Extended Day services of $961.0051 ; and Fast ForWord program for $$892.50.

Sudbury’s arguments opposing reimbursement of privately-obtained services .

Sudbury makes a number of arguments as to why Parents’ privately-obtained services should not be reimbursed. I consider first the relevance of the First Circuit’s decision in Rafferty to the services provided by Wisnia and Associates, and then consider arguments regarding qualifications of staff and notice.

Relevance of Rafferty . In its Rafferty decision, the First Circuit denied reimbursement to parents even though, arguably, the school district’s IEP was inappropriate and even though, arguably, student made progress as a result of the private services. The facts in the First Circuit’s decision are similar to the instant appeal in that, in both cases, the parents sought reimbursement for reading tutorial services that were provided outside of the typical classroom context. The Court wrote:

Although the tutoring did improve her reading ability, she did not study any other subjects, such as social studies, math, English, or science. “Mainstreaming may not be ignored, even to fulfill substantive educational criteria.” Rome Sch. Comm. v. Mrs. B., 247 F.3d 29, 33 (1st Cir. 2001) ( quoting Roland M., 910 F.2d at 992-93). 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.” Id. (internal quotation marks omitted). Therefore, we reject Rafferty’s argument — that a parent can seek any alternative school she wishes if the public school education is inadequate.52

The Rafferty decision bears discussion from two perspectives – first, whether Student’s receiving primarily 1:1 tutorial services without other children present violates principles of least restrictive environment and second, whether Student’s receiving primarily reading services rather than a more balanced academic schedule was appropriate and may be reimbursed. I will consider these two points separately.

The federal requirement, relied upon by Rafferty , that a student be placed in the least restrictive environment is not absolute. The statutory language itself includes the qualifying language “[t]o the maximum extent appropriate”.53 It is not disputed that despite their extensive efforts, neither Sudbury nor Parents were able to identify services or placement that would have been less restrictive, other than the CASE placement pursuant to Sudbury’s inappropriate IEP. Also, least restrictive environment principles cannot justify an inappropriate placement – for example, the placement at CASE that would have provided de minimis educational benefit to Student with respect to his most pressing academic need.54 For these reasons, I find that Parents satisfied the least restrictive environment standard applicable to services provided by a school district. However, even had Parents not done so, it would not have fatal to their claim.

A number of federal courts have specifically considered the least restrictive environment principle in the situation presented by the instant appeal – that is, when a parent is forced to find services for their son or daughter after the school district has not offered an appropriate IEP. These courts have concluded that parents should not be held to the same strict standard with respect to least restrictive environment as are school districts. While a court or hearing officer may consider the least restrictive environment issue with respect to parentally-obtained services and placement, a parent’s inability to place his or her child in a less restrictive environment (which is true in the present dispute) is not considered an automatic bar to reimbursement.55 As the Sixth Circuit has explained:

Bexley contends that the Knables are not entitled to reimbursement because Grove School was not the “least restrictive” placement as required by the IDEA. We noted in Boss , however, that parents who have not been treated properly under the IDEA and who unilaterally withdraw their child from public school will commonly place their child in a private school that specializes in teaching children with disabilities. We would vitiate the right of parental placement recognized in Burlington and Florence County were we to find that such private school placements automatically violated the IDEA’s mainstreaming requirement.56

In addition, I note that the reading tutorial services provided by Wisnia and Associates were, upon occasion, provided to multiple children, including Student, and were therefore not provided exclusively on a 1:1 basis. Also, Parents provided their son with opportunities for meaningful contact with typical children through Sudbury Extended Day services. Facts pars. 182, 190, 202. I suggest that these facts distinguish the instant appeal from Rafferty .

I next consider the concern that Student was receiving primarily reading services rather than a more balanced academic schedule. I note, at the outset, that although the principal focus of Student’s academic services was on developing his reading skills, Parents eventually expanded the instruction at Wisnia and Associates to include other subjects, including math, history, science, writing, gym, art and music. Also, Parents combined the Wisnia and Associates services with other special education services from Dr. Becker and Dr. Stevens, as well as services from Sudbury Extended Day. Facts par. 182, 198, 210.

As discussed in greater detail above in the section entitled “ Services from Wisnia and Associates ”, Parents always understood and intended that the more narrowly-focused special education services would be temporary. Initially, it was anticipated that these more narrow services would be provided only during the summer of 2004, with a full academic program to begin in the fall of 2004. It is not argued by Sudbury that it was inappropriate to provide the more narrowly-focused services during the summer, providing Student with important supplementary services to address his underlying reading and speech deficits. In fact, Sudbury’s proposed IEP for the summer of 2004 reflected these services.

At the end of the summer when a placement with a full academic program was not available, I believe that it was appropriate that Parents continued the summer services that had been successful and that were available to them for another 12 weeks, thereby continuing to provide intensive services to address their son’s most significant academic deficits in reading and speech. It is clear that these services were needed by Student and were effective, for reasons discussed above.

Parents, again, had the understanding and intention that a full academic program would likely begin at the end of this time period. When no such full academic program could be developed by the end of the 12 weeks of services, Parents, in collaboration with Ms. Wisnia (who in turn collaborated with Dr. Hauptman) made best efforts to construct a more-broad based academic program that included math, history, science, writing, gym, art and music. However, by April 1, 2005, Parents had sufficiently exhausted their resources that they had to pull-back on the services provided by Wisnia and Associates. Facts pars. 142, 146, 158, 182, 185, 198, 207.

These circumstances strongly support reimbursement for two reasons. First, the more narrowly-focused services provided Student with intensity of instruction relative to Student’s most glaring deficits, resulting in a “boost” that led directly to significant progress regarding his ability to read. Facts par. 209. Second, as discussed in a separate section above, a consideration of the equities is relevant in reimbursement claims, and the above-described chain of events reveal that Parents did the best that was possible under the circumstances to provide their son with appropriately-balanced educational services.

For these reasons, I find that the principles of the Rafferty decision do not preclude reimbursement to Parents under the particular facts of the instant dispute.

Qualifications of service providers . Sudbury argues that the private services from Wisnia and Associates and Stevens and Associates were not provided by appropriately-credentialed or qualified staff. Educational standards that would normally apply to a public school placement do not apply with respect to a reimbursement claim. The inquiry focuses less on specific, prescribed standards and more on the appropriateness of the services and the benefit to the student from those services.57

I find that Dr. Stevens, Ms. Wisnia and Dr. Becker were all exceptionally well qualified to provide the services that Student was receiving from them. All three have impressive experience and expertise, have specialized in providing these services over a period of years, and have significant experience with children with Student’s profile. It cannot be seriously argued that they are unqualified with respect to the services provided to Student. Facts pars. 253, 256, 257.

Dr. Stevens and Ms. Wisnia relied upon one or more persons within their organization to deliver the majority of services. I find that each of these persons – Julie Hurley in Dr. Stevens office, and Elena Ketcios and Gail Maurer in Ms. Wisnia’s office – were well qualified. They have sufficient education, experience and additional qualifications to provide these services under the supervision of Dr. Stevens and Ms. Wisnia. Facts pars. 254, 255, 259. I also note that Dr. Stevens and Ms. Wisnia made clear in their testimony that they continued to see Student occasionally and oversaw all of the services Student received within their respective offices.

For these reasons, I find that Parents’ service providers were all appropriately qualified to deliver the services that Parents obtained for their son.

Notice by Parents of intent to privately place Student . Sudbury claims lack of notice with respect to Parents’ privately-obtained services. The IDEA, and its implementing regulations, provide that parents are to give prior notice to the school district of their rejection of the proposed placement and their intent to enroll their son or daughter “in a private school at public expense”, or, failing that, parents must meet one of the four exceptions to the notice requirement. The notice may be given orally at the last Team meeting prior to the parents’ removal of student, or alternatively may be given in writing at least ten business days prior to removal. Failure to meet these standards may result in reduction or denial of reimbursement of parents’ private school expenses.58

It is not self-evident that this notice requirement applies in the instant dispute since Parents obtained private educational services for their son, rather than placing him “in a private school”. Nevertheless, for purposes of this analysis, I will assume that the notice requirements apply, will consider whether the requirements were met and if not, what consequences should follow.

Although Parents provided notice with respect to their privately-obtained services for the summer of 2004 (Facts par. 131), it is apparent that Parents need not, pursuant to the above-stated legal standard, have done so. Through its IEP, Sudbury proposed that Parents privately obtain summer services, and I have allowed reimbursement for no more than the types and amounts of summer services described within Sudbury’s proposed IEP. In other words, through its own IEP, Sudbury was on notice that Parents would be privately obtaining these services during the summer of 2004.

In August 2004, when it became clear that Parents would have no choice but to continue these services into the school year, they provided written notice to Sudbury. Facts par. 146. Again, in November 2004, Parents provided written notice to Sudbury of their intent to provide private services for their son and in January, notified Sudbury of their intent to use the Fast ForWord program. Facts pars. 167, 172, 174. However, Parents requested reimbursement for Sudbury Extended Day services for the first time in a letter from their attorney dated January 4, 2005. Facts par. 172.

Sudbury argues that some of these notices were not adequate because they did not fully describe the amounts of the services that would be utilized – for example, Parents utilized more hours of Wisnia and Associates than appear within one of the notices. I do not find this to be a persuasive argument.

The level of detail sought by Sudbury goes beyond the language, as well as the purpose, of the statutory and regulatory requirements regarding notice. The purpose of the notice provision is explained by the First Circuit:

This [prior notice requirement] serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a free appropriate public education can be provided in the public schools.59

Except with respect to Sudbury Extended Day services, which will be addressed separately below, it is apparent that Parents’ various notices to Sudbury satisfied the purpose of this statute. I find that Parents met the notice requirements with respect to all services for which I am ordering reimbursement, with the exception of Sudbury Extended Day services.

As explained above, Parents gave notice and requested reimbursement for Sudbury Extended Day services for the first time in a letter dated January 4, 2005. Sudbury has not argued that the lack of notice with respect to these services or the lack of sufficient detail (discussed above) regarding Parents’ other services has harmed Sudbury in any way, or had any other negative consequence to Sudbury, and I am aware of none.

The IDEA and its implementing regulations make clear that in the event that I find that the notice requirements have been violated, I have discretion as to whether Sudbury’s obligation to reimburse Parents should be reduced and, if so, by how much.60 As discussed above in a section entitled “ Analysis of procedural claims ”, failure by a school district to follow IDEA procedures has no legal consequence unless some educational harm can be shown.61 So too, Parents in this case should not be penalized for failing to comply with a procedural requirement where such failure has not harmed Sudbury.

I also note that in making the determination as to whether to reduce the reimbursement for Extended Day services, the equities are to be weighed.62 For reasons already made clear in a section entitled “ Consideration of the equities ”, the equities are strongly in Parents’ favor.

For these reasons, I find that Parents satisfied the notice requirements with respect to all services other than Sudbury Extended Day services, and I decline to foreclose reimbursement to Parents for any failure to comply with notice requirements.

C. Babysitting expenses

Parents seek an award for babysitting services. Parents state that they hired a babysitter so that Student’s two siblings would not have to make all of the trips to Student’s service providers. Exhibit P-52.

There is nothing within state and federal special education law that would allow me to order reimbursement for services that were utilized solely for the purpose of benefiting Student’s siblings.

For this reason, Parents’ request is denied.

D. Interest on amounts due Parents

Parents seek an award of interest on any reimbursement claim. Parents state that they have financed their son’s education through revolving credit card debt as well as a home equity line. Parents have requested 12% interest consistent with what is allowed in civil court cases. Exhibit P-52.

In an unrelated dispute I have considered, and rejected, a similar argument.63 I see no reason to repeat that analysis here.

In their closing written argument, Parents revised their position and now seek reimbursement of out-of-pocket interest expenses.

I am aware of only one judicial decision and one hearing officer decision that have considered the question of allowing reimbursement for interest payments by parents. Both decisions indicated that it would be permissible.64

Parents have provided evidence that included only a general reference to payment of educational expenses with credit cards and a loan. Parents have not provided any additional, relevant information – for example, they have not explained what loans were obtained, the nature of their credit card expenses, the amounts of interest and other expenses incurred, and the circumstances surrounding these loans and expenses that would be necessary for me to understand and evaluate Parents’ claim.

Assuming that I were to agree with Parents that out-of-pocket interest expenses are reimbursable, I would have to consider this additional information and determine whether the amount of the requested reimbursement in this particular case is reasonable .65 Parents have not provided sufficient evidence for this analysis.

For these reasons, Parents’ request for an award of interest is denied.

E. Evaluations provided by Parents

Parents seek reimbursement from Sudbury for out-of-pocket expenses related to the following six evaluations:

1. Children’s Therapy Associates’ multi-disciplinary evaluation in June and July 2003.

2. Joann Frankhouser’s neuropsychological evaluation on October 30, 2003.

3. Laura Becker’s speech language evaluation on October 1, 2003.

4. Katina Lawdis’ occupational therapy evaluation in October 2003.

5. Bruce Hauptman’s psychiatric consultation on September 1, 2004.

6. Yale University’s learning and attention evaluation on September 9, 2004.

Exhibit P-52.

Parents provided only one written notification to Sudbury that Student required additional evaluations. By letter of July 12, 2004 to Ms. Dixson, Parents notified Sudbury that they believed that additional assessments were needed to determine Student’s current performance levels as they affect his need for special education and related services and were necessary to develop goals, objectives and benchmarks. Parents stated that they intended to have the evaluations completed by the following persons and would ask Sudbury for reimbursement:

· Occupational therapy, Katina Lawdis.

· Speech and language, Laura Becker.

· A full phonological assessment, Laura Becker.

· Reading, Judith Wisnia.

· Visual perception and motor planning, David Stevens.

· Academic achievement, Laura Becker, Susan Grant or other educational consultant.

Exhibits P-37, S-24.

The July 12, 2004 letter references only future evaluations and therefore is not relevant to the first four listed evaluations (above), all of which occurred prior to July 12, 2004. The letter is also not relevant to the remaining two evaluations (listed above) because these two evaluations are not referenced in the July 12 th letter.

Parents argue that they provided notice to Sudbury of their intent to have several of these evaluations performed as evidenced by language at pages 7 and 22 of the IEP developed in May 2003 for the period 9/3/03 to 6/6/04. Exhibit S-7. The language within the IEP indicates that Parents would like further testing to understand Student’s cognitive weaknesses and that Parents have scheduled a neuropsychological evaluation in the summer to find out more information regarding Student’s auditory processing, visual processing and memory skills. I do not find that this language serves either as a request that Sudbury complete any particular evaluation or that Sudbury reimburse Parents for any particular evaluation.

There is no basis within the evidentiary record for me to conclude that Parents otherwise notified Sudbury either that Sudbury should perform the evaluation or that Sudbury should pay for costs related to these evaluations until Parents sought reimbursement for evaluations through their Hearing Request (filed on or about April 26, 2005) and through exhibit P-52 (filed, at the request of the Hearing Officer, during the course of the Hearing for the purpose of clarifying the relief sought by Parents).

Initially, school districts are required to perform certain evaluations not relevant here, as well as “[a]n assessment in all areas related to the suspected disability”.66 Full re-evaluations occur every three years thereafter.67 Parents have the right to seek to have the school district either provide or pay for evaluations in addition to those that have been performed by the school district. This occurs in one of two ways.

First, parents may request that the school district perform an evaluation in an area not assessed by the school district. This request might be made because parents believe that the evaluation is required as one of the assessments listed within the regulations or because it is an assessment in an area related to a suspected disability. If the school district refuses to perform the requested evaluation, the school district is required to file with the BSEA a Hearing Request for the purpose of resolving the dispute.68

BSEA Hearing Officers have concluded that notice by parents to the school district prior to the parents obtaining their own evaluation is necessary with respect to these disputes so that the school district can consider whether to perform the evaluation itself, thereby perhaps obviating the need for parents to obtain the evaluation privately. In the event that the school district decides to do its own evaluation, then parents have rights with respect to an independent evaluation, discussed below.69

Parents not only failed to provide prior notice, but they waited until the last possible time to provide notify Sudbury – that is, through their Hearing Request.

Second, parents may request an independent evaluation in an area that has been assessed by the school district. This request might be made because parents are not satisfied with the school district’s evaluation and are seeking a second opinion. The question to be decided with such a dispute is whether or not the school district’s evaluation was comprehensive and appropriate. If the school district refuses to fund the requested independent evaluation, the school district is required to file with the BSEA a Hearing Request for the purpose of resolving the dispute70

Parents have not provided credible evidence that any of Sudbury’s evaluations was not comprehensive and appropriate. It was only Mother who testified with respect to the alleged inadequacy of various Sudbury evaluations, and she does not have expertise to provide credible evidence regarding this issue.

Parents argue that Sudbury must reimburse Parents for its evaluations because Sudbury did not proceed to the BSEA within five days of receiving Parents’ request for the evaluations.71 However, Parents’ requests came in the form of its Hearing Request to the BSEA, thereby obviating any need for Sudbury to raise these same issues through its own, separate Hearing Request.

For these reasons, I find that Parents should not receive reimbursement for costs related to any of the six evaluations listed above.

F. Transportation expenses

The Massachusetts special education regulations address reimbursement of transportation expenses as follows:

When a parent provides transportation . If a parent provides transportation to an eligible student requiring special transportation consistent with the requirements of 603 CMR 28.05(5)(b), the school district shall reimburse such parent the prevailing rate per mile for state employees. Reimbursement shall be for no more than the round-trip distance between the home and the school for school attendance and school-sponsored extracurricular activities. Mileage shall be determined based on a direct route between the student’s home and school. No parent shall be obligated to provide such transportation.72

It is not disputed that Sudbury must pay Parents for transportation expenses, pursuant to this regulation, with respect to all special education and related services for which Sudbury must reimburse Parents pursuant to this Decision.

Parents also seek reimbursement for their time in transporting Student to and from his service providers. Parents seek payment at the rate of $20.00 per hour which, according to Parents, is “considerably” less than what they would have made if they had been allowed to work rather than transport their son, and reflects a “reasonable livery rate”. Exhibit P-52.

Parents calculate that each round trip from their home to Judith Wisnia took 1.5 hours; each round trip from their home to Laura Becker took 2 hours; and each round trip from their home to Stevens and Associates took 2 hours. Exhibit P-52.

I am aware of only one judicial or administrative decision that has allowed parents to recover for their time transporting their son or daughter to his/her educational services. In Hurry v. Jones , the First Circuit upheld the District Court’s award of $10.00 per day to pay for the time that parents provided transportation their son for “several hours” each day, resulting in a total award of $4,600.00 .73

Although the First Circuit’s Hurry decision, on the face of it, appears to offer support for Parents’ position, a closer reading of the facts (set forth more fully within the District Court’s opinion) and the legal analysis (by both the First Circuit and District Court) distinguish this decision from the instant appeal.

The District Court’s decision in Hurry explains that the parents provided transportation services for their son for two years so that he could attend his school. The school district had refused to provide transportation necessary for student’s health. The District Court determined this to present “exceptional circumstances” because the student was “denied mandated services necessary to protect his physical health” and because the school district’s “repeated and gross lack of concern must be perceived as a bad faith failure to provide clearly mandated services”. On this basis, the District Court granted compensation for parents’ contributed services as damages for the school district’s “bad faith failure to recognize [Student’s] rights”.74 The First Circuit upheld the District Court’s award, characterizing it as a “ barebones” reimbursement for the monetary equivalent of the parents’ time and effort.75

In comparison to the “exceptional circumstances” of the Hurry case, the present dispute presents a garden-variety claim for reimbursement for Parents’ travel time while transporting their son to privately-arranged services. I find that the Hurry decision does not support reimbursement within this context and, as noted above, am aware of no other authority that might support Parents’ claim. I also note that, to the extent that Parents seek damages for transporting their son, I do not have jurisdiction to provide this relief, as discussed below.

For these reasons, I deny Parents’ claim for payment for their time spent transporting their son but allow their claim for reimbursement of transportation expenses as discussed above.

Sudbury shall reimburse Parents, pursuant to 603 CMR 28.07(6), cited above, for transportation expenses with respect to all special education and related services for which Sudbury must reimburse Parents pursuant to this Decision.76

G. Damages claims

Parents are seeking damages. Both parties recognize that a BSEA Hearing Officer does not have authority to award damages, but instead must develop a factual record to assist a court’s consideration of this claim.77

Neither party has requested that I make any findings specifically with respect to damages, and I therefore rely on the Facts and Discussion sections of this Decision to serve this purpose.

H. Additional claims

At the end of their written closing argument in the conclusion section, Parents identify additional claims, including attorney fees, alleged civil rights violations, alleged discrimination based upon disability and alleged infliction of emotional distress. None of these additional claims is otherwise discussed, supported or argued within Parents’ written closing argument.

Because Parents have only identified these additional claims, without providing analysis, argument or other explanation, I decline to address them other than briefly as follows. I do not have jurisdiction to address either the attorney fees claim, the allegation of civil rights violations or the allegation of infliction of emotional distress. I have jurisdiction with respect to discrimination on the basis of disability under Section 504 of the Rehabilitation Act of 1973, but conclude that for purposes of the instant appeal, Parents’/Student’s rights under Section 504 do not extend beyond their rights under state and federal special education law, which have been addressed through this Decision.

During the Hearing, Parents indicated that they would be seeking reimbursement for services from Beverly Malcolm. Facts par. 178. However, Parents provided no evidence describing these services or the service provider, and Parents have not pursued this issue within their written closing argument. For these reasons, I do not further consider this claim.

V. ORDER

Sudbury shall reimburse Parents as follows.

· With respect to services provided by Parents in the fall of 2003 for purposes of making up for services that were to be provided during the summer of 2003, Sudbury shall reimburse Parents for their following out-of-pocket expenses:

· · speech language services from Laura Becker for 6 hours at the rate of $105.00 per hour; and

· · related transportation expenses pursuant to 603 CMR 28.07(6), as described in part IVF of this Decision.

· With respect to services provided by Parents during the summer of 2004, Sudbury shall reimburse Parents for their following out-of-pocket expenses:

· · reading services from Judith Wisnia and Associates for 18 hours at the rate of $70.00 per hour;

· · speech language services from Laura Becker for 12 hours at the rate of $105.00 per hour;

· · occupational therapy services from Katina Lawdis for 6 hours at the rate of $80.00 per hour; and

· · related transportation expenses pursuant to 603 CMR 28.07(6), as described in part IVF of this Decision.

· With respect to the services provided by Parents from September 2004 through June 2005, Sudbury shall reimburse Parents for their following out-of-pocket expenses:

· · speech language therapy from Dr. Becker for 65 sessions at the rate of $105.00 per session;

· · cognitive development services from Stevens and Associates for 71 sessions at the rate of $90.00 per session for 68 sessions with Ms. Hurley or Ms. Hiller and $120.00 per session for 3 sessions with Dr. Stevens;

· · tutorial services from Wisnia and Associates for 859 hours at the rate of $60.00 per hour for 542 hours and at the rate of $70.00 per hour for 317 hours;

· · Sudbury Extended Day services for a total of $961.0078 ;

· · Fast ForWord program for a total of $892.50; and

· · related transportation expenses pursuant to 603 CMR 28.07(6), as described in part IVF of this Decision.

All other requests by Parents for reimbursement and compensatory services are denied.

By the Hearing Officer,

William Crane

Dated: December 23, 2005

APPENDIX A

OUTLINE OF DECISION

I. INTRODUCTION

II. ISSUES

III. FACTS

A. Profile of Student

B. 2000 to 2001 School Year

C. 2001 to 2002 School Year

D. 2002 to 2003 School Year

E. July to December 2003

F. January to June 2004

· IEP for CASE placement

· Services at the CASE placement

· Physical therapy evaluation

· March 4, 2004 Team meeting and subsequent communications

· May 14, 2004 Team meeting and subsequent communications

· Progress from January to June 2004 at the CASE program

· Implementation of the IEP from January to June 2004

G. Summer of 2004

· Communications and related activities during the summer of 2004

· Services provided during the summer of 2004

· Progress during the summer of 2004.

H. 2004 to 2005 School Year

· CASE placement

· Yale evaluation

· Communications and related activities from 9/04 through 5/05

· Services from September 2004 through June 2005

· Sudbury Extended Day services

I. Testimony and reports of Parents’ Experts

· Testimony of Judith Wisnia and her associate

· Testimony of David Stevens

· Testimony of Laura Becker

J. Qualifications of witnesses and service providers

IV. DISCUSSION

A. 2001-2002, 2002-2003 and 2003-2004 school years

· Accepted IEPs

· Occupational therapy evaluation and services from 9/01 to 6/03

· Handwriting services from October through December 2003

· Speech language services from Laura Becker provided in the fall 2003

· Occupational therapy from Katina Lawdis starting in the fall of 2003

· Physical therapy services from January to June 2004

· Implementation of the IEPs

· Procedural claims

Convening a Team meeting to consider independent evaluation

Progress reports

Description of Student’s current performance

Participation with non-disabled students

Additional procedural claims

Analysis of procedural claims

B. June 2004 through June 2005

· Introduction

· Procedural flaws in the development of the 6/04 to 6/05 IEP

· Appropriateness of the June 2004 to June 2005 IEP

· Services during the summer of 2004

· Appropriateness of the services provided from 9/04 through 5/05

Legal standard

Services from Wisnia and Associates

Services from Dr. Becker and Dr. Stevens

Services from Sudbury Extended Day

Consideration of the equities

Conclusion regarding reimbursement

· Sudbury’s arguments opposing reimbursement

Relevance of Rafferty

Qualifications of service providers

Notice by parents of intent to privately place student

C. Babysitting expenses

D. Interest on amounts due Parents

E. Evaluations provided by Parents

F. Transportation expenses

G. Damages claims

H. Additional claims

V. ORDER

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL

Effect of the Decision

20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.

Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must obtain such stay from the court having jurisdiction over the party’s appeal.

Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).

Compliance

A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appeals contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).

Rights of Appeal

Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).

An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).

Confidentiality

In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.

Record of the Hearing

The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.


1

Dr. Weiner testified that these services had been delivered from January to June at CASE although they did not appear in the previous IEP.


2

Dr. Weiner testified that although she is not well-versed in the Fast ForWord program, she reviewed some of the materials and research relevant to this program and had doubts about the value of the program beyond its providing practice for a student on the computer.


3

20 USC 1400 et seq .


4

MGL c. 71B.


5

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


6

David D. v. Dartmouth School Committee , 775 F.2d 411, 423 (1 st Cir. 1985).


7

Parents’ written closing argument, at 34.


8

The IEP signed by Father included, under the heading “Additional Information”, the following:

The TEAM will reconvene in 6-8 weeks after [Student] enters the CASE collaborative Speech, Language, and Hearing program to review his progress in the new program and to determine whether his IEP needs to be revised or amended. There will be coordination/collaboration between the CASE staff and [Student’s] private therapists.

Exhibits P-7, S-19.


9

Independent School District No. 432, Mahnomen School v. J.H ., 8 F.Supp.2d 1166, 28 IDELR 427 (D.Minn. 1998) (acceptance of IEP precluded Hearing Officer from considering its appropriateness); In Re: Yale and Upper Cape Cod Regional Technical School and Sandwich Public Schools , BSEA#06-0501 & #06-0808 (November 14, 2005) (without a showing lack of notice of parental options and due process rights, lack of meaningful parental participation in the development of the IEP, or any other procedural impropriety, the BSEA does not revisit accepted expired IEPs); In Re: Quabbin , 11 MSER 146 (MA SEA 2005); In Re: Sharon Public Schools , 8 MSER 51, 67 (MA SEA 2002); In Re: Carver Public Schools , 7 MSER 167, 179 (MA SEA 2001).


10

Pihl v. Mass. Dept. of Ed. , 9 F.3d 184 (1 st Cir. 1993) (“compensatory education is available to remedy past deprivations” . . . The IDEA “may require services at a future time to compensate for what was lost”); Lester H. v. Gilhool, 916 F.2d 865 (3rd Cir. 1990), cert. denied 499 U.S. 923, 111 S.Ct. 317 (1991) (compensatory education is intended to be “an appropriate remedy to cure the deprivation of a child’s right to a free appropriate public education”); Miener v. State of Missouri , 800 F.2d 749 (8th Cir. 1986) (compensatory education intended to cure the deprivation of a handicapped child’s statutory rights).


11

Reid v. District of Columbia, 401 F.3d 516 (D.C. Cir. 2005).


12

In Re: Norwood , BSEA # 06-0214, 11 MSER 161, 105 LRP 41921 (MA SEA 2005); In Re: Boston Public Schools & Waltham Public Schools , BSEA # 02-4323, 8 MSER 396 (SEA MA 2002).


13

See cases cited in footnote 9, above, and accompanying text.


14

Schaffer v. Weast , 126 S. Ct. 528 (2005) (burden of persuasion in administrative hearing is placed upon the party seeking relief).


15

603 CMR 28.04(5)(f).


16

34 CFR 300.347(a)(7).


17

34 CFR 300.347(a)(1).


18

34 CFR 300.347(a)(4).


19

Roland M. v. Concord Sch. Comm., 910 F.2d 983, 994-95 (1st Cir. 1990). See also, e.g., NL v. Knox County Schools, 38 IDELR 62 (6 th Cir. 2003) (“school district’s failure to comply with the procedural requirements of the Act will constitute a denial of FAPE only if such violation causes substantive harm to the child or his parents”).


20

Burlington v. Mass. Department of Education, 471 U.S. 359, 373-74 (1985).


21

Florence County Sch. Dist. Four v. Carter , 510 U.S. 7, 15 (1993). See also 20 U.S.C. 1412(a)(10)(C).


22

34 CFR 300.340, 300.345.


23

48 Fed. Reg. 12473 (first column) (March 12, 1999) (emphasis supplied).


24

Honig v. Doe, 484 U.S. 305, 311-12, 108 S.Ct. 592, 598, 98 L.Ed.2d 686 (1987). S ee also Burlington School Committee v. Mass. Dept. of Ed., 471 U.S. 359, 368, 105 S.Ct. 1996, 2002, 85 L.Ed.2d 385 (1984); Pihl v. Mass. Dept. of Ed. , 9 F.3d 184 (1 st Cir. 1993).


25

Amanda J. v. Clark Cty. Sch. Dist , 267 F.3d 877, 892 (9 th Cir. 2001).


26

It is self-evident that Sudbury’s responsibilities to convene a Team meeting for purposes of developing an IEP cannot be satisfied by scheduling a single Team meeting, without consulting Parents, that would occur at a time and day inconvenient to Parents’ attorney. See, e.g., federal DOE comments on the regulations at 64 Fed. Reg. 12587 (March 12, 1999) (1 st column) (school district must attempt to arrange a mutually agreed time and place for the Team meeting).


27

Sudbury communicated once with Parents in January 2005, indicating an intent to convene a Team meeting. However, Sudbury inappropriately conditioned the meeting on Parents’ consent to an observation of Student. Parents did not consent and the Team meeting did not occur. Facts par. 175.


28

603 CMR 28.04(5)(f).


29

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


30

M.L. v. Federal Way School District , 105 LRP 13966 (9 th Cir. 2005); Indep. Sch. Dist. Number 283 v. S.D ., 88 F.3d 556, 562 (8th Cir. 1996); Target Range School District , 960 F.2d 1479, 1483 (9 th Cir. 1992); Doe v. Ala. State Dep’t. Of Educ ., 915 F.2d 651, 662 (11th Cir. 1990); Hall v. Vance Cty. Bd. of Educ ., 774 F.2d 629, 635 (4 th Cir. 1985).


31

E.g., 20 USC 1400(d)(1)(A) (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(25) (“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”); Burlington School Committee v. Mass. Dept. of Ed. , 471 US 359, 361 (1985) (federal law entitles eligible student “to receive at public expense specially designed instruction to meet his unique needs”); Smith v. Fitchburg Public Schools , 401 F.3d 16 (1 st Cir. 2005) (“IDEA was enacted ‘to ensure that all children with disabilities have available to them a free appropriate public education … designed to meet their unique needs’”, quoting 20 U.S.C § 1400(d)(1)(A)) .


32

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”).


33

20 USC 1400(d)(4) (a purpose of the federal law is “ to assess, and ensure the effectiveness of, efforts to educate children with disabilities”); 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.”).


34

For a more comprehensive discussion of this standard, see In re: Arlington , 37 IDELR 119, 8 MSER 187, 193-195 (SEA MA 2002) (collecting cases and other authorities).


35

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 ”).


36

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”).


37

E.g., Goss v. Lopez , 419 U.S. 565 (1975) (noting the importance of learning to read and write); Thornton v. McClatchy Newspapers, Inc., 261 F.3d 789 (9 th Cir. 2001) (Berzon, concurring in part and dissenting in part) (noting the “critical importance of reading to self-sufficiency in life”); Keenan v. Hall , 83 F.3d 1083 (9 th Cir. 1996) (noting the “importance of reading in a civilized society”).


38

Dr. Stevens testified persuasively that Student’s visual-perceptual deficits, alone, were a fundamental barrier to his reading. Facts par. 216.


39

Sudbury argues that to the extent that Student did not make adequate progress, the numerous changes in Student’s program, approaches and services is, at least in part, responsible, and that Parents’ advocacy precipitated these changes. I am not aware of any credible evidence that supports this position.


40

Roland M. v. Concord Sch. Comm., 910 F.2d 983, 992 (1st Cir. 1990).


41

34 CFR 300.347(a)(2). See also Evans v. Board of Education of the Rhinebeck Central School District , 930 F.Supp. 83 (S.D. N.Y. 1996) (IEP must include measurable criteria to assess student’s progress).


42

603 CMR 28.05(4)(d)1.


43

34 CFR 300.309.


44

Kenton County School District, v. Hunt , 384 F.3d 269, (6 th Cir. 2004); MM by DM and EM v. School Dist. of Grenville County , 37 IDELR 183 (4 th Cir. 2002); Johnson v. Indep. Sch. Dist. No. 4, 921 F.2d 1022, 1028 (10th Cir. 1990); Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ. , 790 F.2d 1153, 1158 (5th Cir. 1986). Other courts have utilized a regression standard. E.g., Cordrey v. Euckert, 917 F.2d 1460, 1474 (6th Cir. 1990).


45

Florence County Sch. Dist. Four v. Carter , 510 U.S. 7, 13-14 (1993).


46

Id. at 12-13.


47

Id . at 11.


48

Berger v. Medina City School District , 348 F.3d 513 (6 th Cir. 2003).


49

Matthew J. v. Mass. DOE , Federal District Court, slip opinion at 30. (D. of Mass., January 5, 1998).


50

E.g., Florence County School District Four v. Carter , 510 U.S. 7 (1993); School Committee of Burlington v. Department of Education of Mass., 471 U.S. 359, 374 (1985); Rafferty v. Cranston Pub. Sch. Committee , 315 F.3d 21 (1st Cir. 2002), Roland M. v. Concord Sch. Comm. , 910 F.2d 983, 999 (1st Cir. 1990) .


51

Parents requested reimbursement for $1059.00 but this figure appears to erroneously include a payment of $98.00 for services during the summer of 2004.


52

Rafferty v. Cranston Pub. Sch. Committee , 315 F.3d 21 (1st Cir. 2002).


53

20 U.S.C. s. 1412(a)(5)(A). See also 34 C.F.R. s. 300.550; MGL c. 71B, ss. 2, 3; 603 CMR 28.06(2).


54

Burlington v. Mass. Department of Education , 471 US 359, 369 (1985) (IDEA provides for placement in more restrictive setting at public expense where less restrictive placement is not possible); Roland v. Concord School Committee , 910 F.2d 983, 993 (1 st Cir. 1990) (“desirability of mainstreaming must be weighed in concert with the Act’s mandate for educational improvement”); Hartmann v. Loudoun County Board of Education , 118 F.3d 996 (4th Cir. 1997) (“IDEA encourages mainstreaming, but only to the extent that it does not prevent a child from receiving educational benefit”); Burlington v. DOE , 736 F.2d 773, 789 n. 19 (1 st Cir. 1984) (principle of least restrictive placement may not be used to cure an otherwise inappropriate placement).


55

M.S. v. Board of Educ. of the City School Dist. of Yonkers , 231 F.3d 96, 102, 105 (2d Cir. 2000) (citing Cleveland Heights-University Heights City School Dist. v. Boss , 144 F.3d 391, 400 (6th Cir. 1998)); Gabel v. Board of Education of the Hyde Park Central School District , 105 LRP 21194 (U.S. District Court, Southern District of New York, May 10, 2005).


56

Knable v. Bexley City School District , 238 F.3d 755 (6 th Cir. 2001) (internal citations omitted).


57

Florence County Sch. Dist. Four v. Carter , 510 U.S. 7, 11-15 (1993); Berger v. Medina City School District , , 348 F.3d 513 (6 th Cir. 2003); Matthew J. v. Mass. DOE , Federal District Court, slip opinion at 30 (D.Mass. January 5, 1998).


58

20 USC 1412 (a)(10)(C)(iii) & (iv); 34 CFR 300.403 (c), (d) and (e). The First Circuit has discussed compliance with the statutory/regulatory notice requirements. See, e.g., Ms. M. v. Portland School Committee , 360 F.3d 267 (1st Cir. 2004); Greenland School District v. Amy N. , 358 F.3d 150 (1st Cir. 2004); Rafferty v. Cranston Public School Committee , 315 F.3d 21, 27 (1st Cir. 2002).


59

Greenland School District v. Amy N. , 358 F.3d 150, 160 (1st Cir. 2004) (citations omitted).


60

20 USC 1412 (a)(10)(C)(iii); 34 CFR 300.403 (d).


61

NL v. Knox County Schools, 38 IDELR 62 (6 th Cir. 2003); Roland M. v. Concord Sch. Comm., 910 F.2d 983, 994-95 (1st Cir. 1990).


62

Ms. M. v. Portland School Committee , 360 F.3d 267 (1st Cir. 2004); Greenland School District v. Amy N. , 358 F.3d 150 (1st Cir. 2004); Deal v. Hamilton County Board of Education, 104 LRP 59544 (6 th Cir. 2004) and cases cited therein.


63

In Re: Nahant Public School , BSEA # 04-1098, 9 MSER 381 (MA SEA 2003).


64

Egg Harbor Township Board of Education v. S.O ., 19 IDELR 15 (D.N.J. 1992); Barrington School District , 34 IDELR 80 (RI SEA 2000).


65

R eimbursement is a matter of equitable relief, with the decision-maker having the responsibility to consider, among other things, the reasonableness of the parties’ positions. E.g., Florence County School District Four v. Carter , 510 U.S. 7 (1993); School Committee of Burlington v. Department of Education of Mass., 471 U.S. 359, 374 (1985); Rafferty v. Cranston Pub. Sch. Committee , 315 F.3d 21 (1st Cir. 2002), Roland M. v. Concord Sch. Comm. , 910 F.2d 983, 999 (1st Cir. 1990) .


66

603 CMR 28.04(2)(a)1


67

603 CMR 28.04(3).


68

603 CMR 28.04(5)(d).


69

In re: Manchester Public Schools , BSEA # 05-4247, 11 MSER 110 (MA SEA 2005); In re: Abington Public Schools , BSEA # 04-3493, 11 MSER 16 (MA SEA 2004).


70

603 CMR 28.04(5)(d).


71

34 CMR 28.04(5)(d).


72

603 CMR 28.07(6).


73

Hurry v. Jones, 734 F.2d 879 (1st Cir. 1984). Compare a more recent judicial decision that allowed for reimbursement of a parent’s time, but limited such reimbursement to those situations where the parent stepped in to act as the trained service provider rather than as a parent. Bucks County Department of Mental Health v. Commonwealth of Pennsylvania , 379 F.3d 61 (3rd Cir. 2004). Also compare a recent BSEA decision allowing reimbursement for parent’s time supervising her daughter at the times when the parent was essentially acting in place of a supervising/over night staff person. In Re: Provincetown Public Schools and Mass. Dept. of Education , BSEA # 04-3100 and 05-0340, 10 MSER 493 (MA SEA 2004).


74

Hurry v. Jones, 560 F. Supp. 500 (D.R.I. 1983).


75

Hurry v. Jones, 734 F.2d 879 (1st Cir. 1984).


76

The parties are referred to In Re: Chicopee Public Schools , BSEA # 04-0093, 10 MSER 561 (MA SEA 2004) for a useful discussion of this regulatory standard.


77

Frazier v Fairhaven School Committee, 276 F. 3d 52 (1 st Cir. 2002).


78

Parents requested reimbursement for $1059.00 but this figure appears to include $98.00 for the summer of 2004, which is not allowed.


Related Articles

Leave A Comment?