COMMONWEALTH OF MASSACHUSETTS
Division of Administrative Law Appeals
Bureau of Special Education Appeals
In Re: Wellesley Public Schools
BSEA# 10-6553 and 10-8510
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 c. 71B), the state Administrative Procedure Act (MGL c. 30A) and the regulations promulgated under these statutes.
A Hearing was held on January 25, 2011, February 8, 2011, April 4, 2011, April 5, 2011 and April 26, 2011 in Malden, MA before Ann F. Scannell, Hearing Officer. Those present for all or part of the Hearing were:
Ian’s1 Parents
Julie Leondis Special Educator, Wellesley Public Schools
Laurie Plant Special Educator, Wellesley Public Schools
Farrah Taulbee Speech Pathologist, Wellesley Public Schools
Sarah Aspero Classroom Teacher, Wellesley Public Schools
Katie James (Vitas) Speech Pathologist, Wellesley Public Schools
Anthony Moretti Classroom Teacher, Wellesley Public Schools
Linda Waters Director of Student Services, Wellesley Public Schools
Lizabeth Ann Brown Department Head, Wellesley Public Schools
Sandra Nadeau Case Manager, Landmark School
Karl Pulkkinen Public School Liaison, Landmark School
Sharon Musto Reading Supervisor, Landmark School
Martha Simmons Reading Specialist
Shari Noe Licensed Psychologist
Ryan Quigley Speech Pathologist
Jamie Rishikof Psychologist
Joanne Spillane Reading Tutor
Regina Williams Tate Attorney, Wellesley Public Schools
Marie Mercier Attorney, Parents
Laurie Jordan Court Reporter
Darlene Coppola Court Reporter
The official record of the Hearing consists of documents submitted by Wellesley Public Schools and marked as Exhibits S-1 through S-84; documents submitted by the parents and marked as Exhibits P-1 through P-86 and P-88 through P-90; and approximately five days of oral testimony. Written closing arguments were received on May 25, 2011 and the record closed on that date.
INTRODUCTION
Ian is an 11 year old boy who resides with his family in Wellesley. He is currently in the 5 th grade at the Landmark School (“Landmark”). Ian was unilaterally placed by his parents at Landmark in August of 2009. Prior to attending Landmark, Ian was enrolled in the Primary Language Based program (“PSP”) at the Schofield Elementary School in Wellesley.
Ian has been diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) and a specific learning disability in reading and written language. Ian has been receiving special education services pursuant to an individualized education program (“IEP”) since preschool.
Ian was reevaluated in early 2006 when he was in Kindergarten. The educational testing showed that Ian was performing below grade level in reading and basic math. At that time Ian was in a full inclusion kindergarten class. He was receiving special education support four times per week for 30 minutes in the classroom and pull out instruction in the learning center as needed. A new IEP was developed calling for the same services and support. The WINGS summer program was also proposed for Ian to prevent substantial regression. The parents accepted the IEP.
At the request of Ian’s parents, Ian underwent an educational assessment in January of 2007. The assessment was conducted by Ian’s classroom teacher. His teacher reported that, although Ian had made progress, he continued to perform below grade level in reading and basic math.
When the TEAM met in March, 2007, they determined that Ian would continue to receive occupational therapy services, speech and language services and academic services for the remainder of first grade. The IEP also proposed the WINGS summer program. The TEAM further agreed that Ian would attend the PSP program at the Schofield Elementary School for second grade. The parents accepted the IEP and placement.
Ian started in the PSP program in September of 2007. As of March, 2008, Ian’s teachers were reporting that he had made progress in the PSP program. Ian was still struggling with reading and writing activities. Math was noted to be a strength for Ian and he made progress in the areas of fine motor skills and visual motor integration.
The March 2008 to March 2009 IEP called for Ian to remain in the PSP program for his third grade year. For summer programming, the IEP called for the WINGS program.2 The parents accepted the IEP and placement in the PSP program. Ian returned to the PSP program for third grade in September 2008.
Wellesley conducted a three year reevaluation of Ian in January of 2009. Ian underwent achievement testing, speech and language testing, cognitive testing and an occupational therapy evaluation. A TEAM meeting was held on February 10, 2009 and an IEP was developed. Ian was to remain in the PSP program for fourth grade. The parents partially rejected the IEP and refused the proposed placement.
In August of 2009, the parents informed Wellesley that they were unilaterally placing Ian at Landmark and requested that Wellesley fund the placement. Wellesley refused to fund the placement at Landmark. Ian began his fourth grade year at Landmark beginning in September 2009.
The TEAM met in March of 2010. An IEP was developed which called for Ian to receive special education services in the Intermediate Language-Based Program (“ISP”) at the Schofield Elementary School. The parents rejected the IEP and again requested that Wellesley fund Ian’s placement at Landmark. Wellesley refused to do so. Ian remained at Landmark for his fifth grade year beginning in September of 2010.
On May 14, 2010, Wellesley filed a request for Hearing with the Bureau of Special Education Appeals (“BSEA”). It is Wellesley’s position that the March 8, 2010 to March 9, 2011 IEP proposed by Wellesley provides Ian with a free, appropriate public education (“FAPE”) in the least restrictive environment.
On June 15, 2010, the parents filed a response to Wellesley’s Hearing request and counterclaims. It is the parents’ position that the IEP dated March 8, 2009 to March 8, 2010 and the IEP dated March 9, 2010 to March 9, 2011 failed to provide Ian with a FAPE. Further, Landmark was and continues to be an appropriate placement for Ian. The parents are seeking an order from the BSEA that these IEPs did not provide a FAPE to Ian, that the parents are entitled to reimbursement for tuition and related expenses incurred in connection with Ian’s placement at Landmark, that Wellesley fund placement at Landmark and that Wellesley reimburse the parents for out of pocket expenses for special education supports during the 2008 to 2009 school year.
On June 22, 2010, Wellesley filed a response to the parents’ counterclaims. It is Wellesley’s position that the parents are not entitled to any of the relief they are seeking.
After an initial postponement of the Hearing, this matter moved forward to a Hearing on January 25, 2011, February 8, 2011, April 4, 2011, April 5, 2011 and April 26, 2011.
ISSUES
The issues to be decided in this matter are the following:
1. Is the IEP dated March 2010 to March 2011 and the amendment, reasonably calculated to provide Ian with a FAPE in the least restrictive environment?
2. If not, can the IEP be modified to provide Ian with a FAPE in the least restrictive environment?
3. If not, is Landmark appropriate?
4. Was the IEP dated March 2009 to March 2010 reasonably calculated to provide Ian with a FAPE in the least restrictive environment?
5. If not, was placement at Landmark appropriate?
6. If so, are the parents entitled to reimbursement for tuition and transportation expenses?
7. Are the parents entitled to reimbursement for private tutoring expenses and private speech and language services provided during the 2008 to 2009 school year?
FACTS
Ian was initially evaluated by Wellesley Public Schools in March of 2003 because of concerns with language, motor skill and speech development. Special education services were provided at that time pursuant to an IEP. (Exhibits S-60, 61 and 62)
Approximately 2 ½ years later Ian underwent an initial evaluation at Boston Children’s Hospital (“Children’s”). The testing revealed that Ian was delayed in his ability to identify basic colors, shapes, names of everyday objects and the letters of the alphabet, basic counting and number skills and exhibited below age level pre-literacy skills. Further, Ian demonstrated developmental delays in motor ability and visual motor integration and exhibited difficulties with personal organization and task attack skills. He was referred to staff psychologist, Nancy Sullivan, for a psychologist assessment. (Exhibits S-56 and P-2)
Ian underwent this psychological assessment in September of 2005. At that time, he was in an inclusion kindergarten class and was receiving special education support and services pursuant to an accepted IEP. Dr. Sullivan administered the Beery-Buktenica Developmental Test of Visual-Motor Integration (“VMI”) and the Wechsler Preschool and Primary Scales of Intelligence (“WPPSI-III”). Ian’s parent also completed the rating scale of the Behavior Assessment System for Children (“BASC-2”) and the Scales of Independent Behavior (“SIB”). (Exhibits S-56 and P-2)
Ian demonstrated overall cognitive abilities within the average range of functioning. His verbal score was higher than his performance score and his processing speed was significantly lower than his verbal and performance scores. Ian’s visual motor integration skills were determined to be an area of significant weakness. Ian demonstrated low frustration tolerance and difficulty sustaining attention on difficult tasks. Dr. Sullivan diagnosed Ian with a developmental coordination disorder and a mixed expressive receptive language disorder. (Exhibits S-56 and P-2)
Dr. Sullivan recommended that Children’s language and literacy specialist, Martha Simmons, conduct a comprehensive reading and language assessment. Dr. Sullivan also recommended that Ian’s parents consult with a behavioral psychologist to improve his emotional and behavioral regulation, that the school consider using the Handwriting Without Tears program with Ian, that Ian’s parents and teachers monitor his attention and activity levels and that Ian continue to receive speech, occupational therapy and physical therapy services pursuant to his IEP. (Exhibits S-56 and P-1)
On September 26, 2005, Ian underwent a language assessment with Martha Simmons.3 Ms. Simmons administered three subtests of the Observation Survey of Early Literacy Achievement (“Clay”). On the letter identification subtest, Ian identified three uppercase and lower case letters. On the word identification subtest, Ian was unable to identify any of the high frequency words. On the writing vocabulary subtest, he was able to write one word. These results indicated that Ian was struggling with average tasks in a classroom of his peers. Ms. Simmons reported that Ian would need intensive expert teaching to “catch up” to his peers. (Exhibits S-57 and P-1)
Ms. Simmons recommended a highly structured reading program with emergent literacy, phonological awareness, phonemic awareness, phonics instruction, fluency instruction, vocabulary development and comprehension instruction components. She recommended that a certified reading specialist deliver Ian’s reading instruction in a group of no more than two to three students for 45-60 minutes, at least four days per week. In the alternative, an instructor trained in an individualized program with supervision by a certified reading specialist would suffice. Ms. Simmons emphasized the importance of developing Ian’s repertoire of sight words and focusing on teaching Ian consonant and vowel names and sounds. (Exhibits S-57 and P-1 and testimony of Simmons and Ian’s mother)
Ian underwent a three year reevaluation in March of 2006. The Wellesley staff administered an educational assessment and an occupational therapy assessment. The special educator conducted the Test of Early Reading (“TERA-3”), the Test of Mathematical Ability (“TEMA-2”) and the Comprehensive Test of Phonological Processing (“CTOPP”). (Exhibits S-50, 51, 52 and 53 and P-3)
Ian performed below grade level in reading and basic math. He had difficulty when he had to match visual symbols for numbers with sets of objects. Ian demonstrated solid ability in phonological memory and was slightly below grade level in phonological awareness. He demonstrated a severe deficiency in his ability to retrieve visual symbols. The evaluator noted that instruction in a small group and one to one instruction was helpful and that Ian responded best when tasks were short and he received reinforcement for his efforts. (Exhibits S-51 and P-3)
Approximately one year later, in February 2007, when Ian was in the first grade, his parents requested an educational assessment.4 The same tests were administered to Ian, including the TERA-3 and the TEMA-2. Ian’s scores on the TERA-3 were slightly lower than one year earlier. Ian was performing below grade expectations. His scores on the TEMA-2 were comparable. He was performing below grade level. (Exhibit S-45)
A TEAM meeting was held on March 28, 2007. The TEAM agreed to continue the academic, occupational therapy and speech and language services. The TEAM was in agreement to place Ian in the PSP program for second grade (school year 2007 to 2008). (Exhibit S-40 and testimony of Brown and Ian’s mother)
In May, 2007, Ian underwent an outside speech and language evaluation with Jacqueline Rossey. Ms. Rossey administered the Peabody Picture Vocabulary Test (“PPVT-III”) and the Clinical Evaluation of Language Fundamentals test (“CELF-4”). Ian’s results placed him in the average range for both his receptive and expressive language skills with one exception. On the sentence structure subtest of the CELF-4, Ian scored in the low average range. (Exhibits S-39 and P-9)
Ms. Rossey reported that Ian exhibited strengths in his vocabulary knowledge, strategies for word retrieval and memory, and his motivation for learning. He exhibited relative weaknesses in working memory, language structure and rapid automatic naming. Ian met the criteria for his age in word associations and phonological processing but did exhibit difficulty with word retrieval given a time limit and manipulating phonemes in words. Ms. Rossey noted that some classroom accommodations may be beneficial to Ian, including extra time to respond, preferential seating, visual cues and checking in to facilitate understanding of directions and assignments. (Exhibits S-39 and P-9)
Ian underwent an outside psychological evaluation with Shari Noe, Ph.D. in May and June of 2007. Ian’s parents were interested in finding out about Ian’s learning style. They were also considering having Ian apply for admission to the Carroll School.5
Dr. Noe administered the Wechsler Intelligence Scale for Children (“WISC-IV”), the Rey-Osterrieth Complex Figure Drawing Test (“REY”), the Visual-Aural Digit Span Test (“VADS”), the Rapid Automatized Naming and Rapid Alternating Stimulus Test (“RAN-RAS”) and the word reading and spelling subtests of the Wechsler Individual Achievement Test (“WIAT-II”). (Exhibits S-36 and P-10 and testimony of Noe)
Dr. Noe noted that throughout the testing, Ian had difficulty focusing and remaining attentive and had difficulty on timed tasks, tasks that required the use of his organizational skills and tasks that involved a hands-on component. (Exhibits S-36 and P-10 and testimony of Noe)
Ian’s overall intellectual performance fell within the average range. His verbal comprehension fell in the high average range while his working memory score and his perceptual reasoning score fell in the average range. Ian’s performance in the processing speed index fell in the below average range. On the achievement subtests, Ian scored below average and on the RAN-RAS tests Ian’s scores ranged from below average to poor. The results of the VADS testing revealed that Ian was most successful with his memory when information was presented to him orally and he had to respond orally. (Exhibits S-36 and P-10 and testimony of Noe)
Overall, the results suggested that Ian has average to above average ability when learning involves language based abstract verbal reasoning skills, but exhibits significant difficulty when learning involves visual perceptual tasks that require timed output, physical manipulation and organization. Dr. Noe recommended more achievement testing, an occupational therapy evaluation, a central auditory processing evaluation and perhaps a psychopharmacology consult. She also recommended providing Ian structure through guiding questions, time to generate a plan, extra time on timed tasks, preferred seating at the front of the class and movement breaks.6 (Exhibits S-36 and P-10 and testimony of Noe)
Ian began in the PSP program in September 2007. The PSP program at the Schofield school was designed for students with average to above average cognitive learning potential who are experiencing significant delays in the acquisition of literacy and math skills due to a language based learning disability. Literacy and math instruction is provided in small group or individual settings. Students are included in general education settings accompanied by program staff. (Exhibit S-75 and testimony of Brown and Plant)
At the PSP program, reading and math are taught using specialized multi-sensory strategies, visual cues are paired with verbally presented information and reinforcement and practice is used for retention of skills and knowledge. The instructional methods used with the students are research based and include, the Wilson Reading Program, Visualizing and Verbalizing for Language Comprehension and Thinking, Framing your Thoughts, Project Read Written Expression Curriculum and Saxon Math. (Exhibit S-75 and testimony of Brown and Plant)
PSP students are assessed formally and informally using daily data collection, portfolios, reading inventories, observations and standardized testing. The program also incorporates assistive technology throughout the day. Staff members, including general education teachers, occupational therapists, assistive technology specialists, speech and language therapists consult on an on-going daily and weekly basis. (Exhibit S-75 and testimony of Brown and Plant)
In November of 2007, Ian underwent a behavioral consultation with Dr. Rappaport at Children’s and an outside occupational therapy evaluation with Jocelyn Hesse. Following his evaluation, Dr. Rappaport diagnosed Ian with Attention Deficit Hyperactivity Disorder (“ADHD”). He suggested a trial of stimulant medication. Dr. Rappaport stated that Ian should continue with his intensive remediation at school which was an ideal setting for Ian. He further suggested preferential seating, a reward system and the use of a computer or Alpha Smart to record his ideas.7 (Exhibit S-28)
Ms. Hesse administered the VMI, the test of Visual Perceptual Skills (“TVPS-R”) and the Sensory Profile and School Companion. Ian’s subtests scores on the TVPS-R ranged from average to below average. Ms. Hesse related many of Ian’s below average scores to his impulsivity and inattention. Ian did, however, struggle with the visual sequential memory and visual closure subtests. Ian also struggled with visual perceptual tasks that required him to repeatedly shift his focus. (Exhibit P-11)
The results of the VMI revealed that Ian had difficulty with graphomotor precision and retaining and manipulating visual information in his mind. Ms. Hesse could not determine to what extent Ian’s impulsivity and inattention affected these scores. On the Sensory Profile and School Companion Form, Ian’s teachers reported that in all areas, including visual processing, auditory processing, movement processing, touch processing and behavior, Ian scored in the atypical range. Ms. Hesse suggested that Ian continue to receive occupational therapy services, keyboarding instruction, a sensory diet, opportunities to work in a variety of positions and the use of fidget toys. (Exhibit P-11)
Ian’s classroom teacher, Laurie Plant, reported on Ian’s progress in second grade in February of 2008. She reported that Ian had made good progress with his reading goals. Specifically, Ian was able to independently decode and encode three letter consonant-vowel-consonant words. He was also able to decode and encode consonant digraphs with some sh/ch confusion. Ian had mastered 30 sight words when presented in isolation and was beginning to recognize these words in text. After reading a text at his level, Ian was able to retell elements of the story with teacher cues and an organizer. (Exhibit S-29 and testimony of Plant)
In math, Ms. Plant reported that Ian was able to rote count to 100 independently and was able to count by 2’s, 5’s and 10’s to 100. He was able to identify and count combinations of pennies, nickels and dimes. Ian had mastered addition facts such as doubles, plus 0, plus 1 and plus 2. He was able to complete subtraction facts, minus 1, minus 0 and number minus itself. Ian was also able to tell time to the hour. (Exhibit S-29 and testimony of Plant)
Ian’s speech and language pathologist, Linda Flanagan, reported that he was progressing well with onset and rhyme patterns. He was able to blend and segment words, write high frequency words and three sentences on a given topic. Ian still required cues to use appropriate capitalization and punctuation and some of his letters were still reversed. (Exhibit S-29)
In March of 2008, Wellesley proposed a new IEP with effective dates from March 7, 2008 to March 6, 2009. This IEP contained goals in reading, phonological awareness, mathematics, written language and speech and language. Ian was to receive language arts instruction from the special education staff for 90 minutes per day, 5 days per week and math instruction from the special education staff for 60 minutes per week, 5 days per week. The IEP also called for occupational therapy 1 time per week for 30 minutes and speech and language services 3 times per week for 30 minutes. The placement proposed was the PSP program. The special education services were to be continued during the summer through the WINGS program. The IEP and placement were fully accepted by Ian’s parents. (Exhibits S-27 and P-7 and testimony of Brown and Ian’s mother)
At the end of second grade, in June 2008, Ms. Plant reported that Ian was making progress in all areas. He was reading at a level 7 which is a mid first grade level, reading 30 sight words in isolation and decoding one syllable words. In math Ian was able to complete additional addition and subtraction facts, was able to tell time to the half hour and was able to solve a story problem by selecting the appropriate operation and writing a number sentence. Ian was also able to spell one syllable words and write a paragraph with a topic, details and conclusion. Ian’s speech and language teacher reported that Ian was increasingly successful with phonemic transposition and was able to segment syllables in a multi-syllabic word. (Exhibit S-24 and P-21 an testimony of Plant)
Ian’s private tutor, Sharon Bernstein, reported that Ian was able to successfully break apart the ang, ong and ung group, substitute letters in three sound words to form new real and nonsense words and use rhyming words. Ian was reversing letters and having difficulty with some consonant sounds and short vowel sounds. (Exhibit P-13)
Ian did not attend the WINGS summer program for the summer of 2008. Ian’s parents enrolled him in the Carroll School summer program.8 Later that summer, on behalf of Ian’s parents, Ian’s educational consultant, Ms. Simmons, wrote a letter to the Carroll School recommending Ian’s admission. (Exhibit P-81 and testimony of Ian’s mother and Simmons)
Ian returned to the PSP program for 3 rd grade. On October 15, 2008, Ms. Simmons advised the Wellesley staff via email message that she had seen Ian on October 7, 2008 and found him to be very focused on finishing his work and less frustrated with work demands as compared to the prior year. Ms. Simmons also reported that she was impressed by Ian’s continued reading progress. At that time, Ian had read a Level E text at his instructional level. Ms. Simmons also found that when Ian does not recognize a word, he will guess or ask an adult. Once told that he knows the sounds in the word and he can decode it, however, Ian will apply his phonics knowledge and decode the word accurately. One month later, Ms. Simmons reported that Ian was reading a Level F text. (Exhibit S-8 and testimony of Simmons)
In January of 2009, Ian underwent a three year reevaluation. Wellesley conducted an occupational therapy assessment, an academic assessment, a speech and language assessment and a psychological assessment. (Exhibits S-14, 16, 17, 18, 19 and 20 and P-15, 16, 17, 18)
As part of Ian’s three year reevaluation, his third grade social studies and science teacher, Sarah Aspero, completed an educational assessment. She reported that Ian had a firm grasp on the main ideas but struggled to grasp all the details of the content. He was generally happy to participate in class and sometimes needed reminders to remember the steps to a process or set of directions. (Exhibit S-15)
The occupational therapist administered the Developmental Test of Visual Perception (“DTVP-2”). She reported that Ian’s visual motor skills were within the average range. His non-motor visual perceptual skills were just below the average range. Ian’s sensory processing skills were within typical range and his visual motor skills for handwriting were legible. (Exhibits S-19 and P-18)
After reviewing the Sensory Profile School Companion, which was completed by Ian’s teachers, the occupational therapist reported that Ian scored in the typical performance range on all factors related to sensory processing skills, including visual, auditory, movement, touch and behavior. These scores stood in marked contrast to Ian’s previous testing in 2007, where he scored in the atypical range on all the same factors. (Exhibits S-19 and P-18)
The occupational therapist suggested that Ian have opportunities for varied work positions, written production minimized by the use of alternate means of expressing himself (such as keyboarding or voice recording) and additional time to complete paper and pencil tasks. (Exhibits S-19 and P-18)
Ian’s third grade teacher, Ms. Plant, conducted the academic testing as part of Ian’s three year reevaluation. She administered the Woodcock Johnson Tests of Achievement-Form A (“WJ-III), the CTOPP, the Test of Early Written Language (“TEWL-2”) and the Key Math 3 Diagnostic Assessment. On the WJ-III, Ian scored below his grade level in letter-word identification, reading fluency and spelling. He scored slightly below grade level in math fluency and above grade level in math calculations. (Exhibits S-18 and P-15)
On the CTOPP, Ian scored above average on the phonological awareness component and the phonological memory component. Ian scored below average on the rapid naming component which demonstrated his difficulty with efficient retrieval of phonological information from long term or permanent memory and executing a sequence of operations quickly and repeatedly. (Exhibits S-18 and P-15)
On the TEWL-2, Ian scored at the 50 th percentile on the basic writing subtest and at the 5 th percentile on the contextual writing subtest. Ms. Plant reported that Ian was able to spell basic words and edit sentences for basic punctuation and capitalization. He had more difficulty spelling complex words and combining sentences. On the Key Math assessment, Ian’s overall scores were in the average range. (Exhibits S-18 and P-15)
Ian also underwent a speech and language assessment as part of the three year reevaluation. The assessment was conducted by Katherine James. On the PPVT-IV, which assesses receptive language, Ian scored in the average range on all three subtests. On the Expressive Vocabulary Test (“EVT-2”), which assesses Ian’s expressive vocabulary skills and word retrieval skills, Ian scored in the average range. Ian’s expressive language skills were also tested through the subtests of the CELF-IV. His scores on the various subtests ranged from below average to high average, with most of his subtests scores falling in the below average range. His expressive language index score placed him in the below average range. Ian also exhibited average and high average auditory processing skills. (Exhibits S-17 and P-17)
Ms. James reported that Ian had difficulty with the overall organization of language, including the application of word and sentence structure rules. Ian benefitted from the use of visuals during oral expressive language tasks. Ian demonstrated difficulty with the individual phoneme sounds “th” and /r/. Recommendations included visual or verbal cues for attention, chunking of material, having Ian repeat directions, visual organizers, prompting questions to elicit more information and modeling appropriate word structure and sentence structure after a grammatical error. (Exhibits S-17 and P-17)
Wellesley school psychologist, Troy Carr, Ph.D. conducted a psychological assessment as part of Ian’s three year reevaluation. Dr. Carr administered the WISC-IV, the Wide Range Assessment of Memory and Learning (“WRAML-2”) and the Rey-Osterrieth Complex Figure test. On the WISC-IV, Ian scored in the high average range on the verbal comprehension and the working memory indices. On the processing speed index, Ian scored in the average range and on the perceptual reasoning index, Ian scored in the below average range.9 (Exhibits S-16 and P-16 and 11)
Ian demonstrated difficulty managing complex visual material. He was only able to recall the outline of the figure and a few details randomly placed inside the figure. When the design was presented again in a structured version that highlighted the organizational framework, Ian’s performance on the copy and recall improved. (Exhibits S-16 and P-16)
Ian scored in the high average range on working memory subtests of the WISC-IV and the WRAML. Ian was able to attend to and hold verbal information in short term memory while performing some operation or manipulation with it, but had more difficulty with visual information. Ian had some difficulty managing large volumes of auditory information. (Exhibits S-16 and P-16)
Dr. Carr recommended visual tasks should be presented to Ian in a structured format with the steps and components well specified and that he would benefit from previewing and reviewing information and explicit instructions. (Exhibits S-16 and P-16)
On January 29, 2009, Martha Simmons, advised Ms. Plant that she administered the Developmental Spelling Assessment (DSA) to Ian. Ms. Simmons reported that Ian had made some nice progress over the last few months. Ian scored 6 out of 10 on the screening, placing him in the Late Letter Name/Early Within Word spelling stage. Ms. Simmons noted that children typically enter the Within Word stage during the second grade. Ian was able to read a Guided Level F text with 93% accuracy, placing him at the instructional level (the “just right” level according to Ms. Simmons). Ian was reading at a mid-first grade level. Ian had been reading at a pre-primer/early first grade level in August. Ms. Simmons characterized Ian’s progress as a “significant gain.”
Progress reports were issued in February of 2009. Ms. Plant reported that Ian had made great progress with his reading goals. Ian was able to decode one syllable words containing short vowels, digraphs, welded sounds, suffix –s and beginning and ending consonant blends. He was able to read over 60 high frequency words and was reading at a level 10 which is a mid first grade level. (Exhibits S-15 and P-21 and testimony of Plant)
In math, Ian demonstrated and understood place values for ones, tens and hundreds. He completed addition and subtraction facts to twenty with 100% accuracy and multiplication facts for 0, 1, 2, 5 and 10. He could tell time to the minute and accurately count mixed collections of pennies, nickels, dimes and quarters to one dollar. Ian could also select an appropriate operation and write a number sentence to solve given a story problem. (Exhibits S-15 and P-21 and testimony of Plant)
Ms. Plant reported that Ian demonstrated an improved positive attitude about writing during the course of the year. He was able to spell one syllable words and was consistently using punctuation at the end of sentences. Given a graphic organizer, Ian was able to write an 8 sentence paragraph with topic, details and a conclusion sentence. (Exhibits S-15 and P-21 and testimony of Plant)
Ian’s speech pathologist, Ms. James, reported that Ian could blend and segment syllables in 4 out of 5 trials and could identify the number of syllables in a two or three syllable word. Ian could blend and segment individual phoneme sounds in simple one and two syllable consonant-vowel-consonant words and was able to delete, substitute and manipulate phonemes with simple one syllable words. (Exhibits S-15 and P-21)
Following the three year reevaluation, a TEAM meeting was held and a new IEP was proposed. This IEP, dated February 10, 2009 to February 9, 2010, included goals in reading, speech and language, math and written language. Ian would remain in the PSP program for the remainder of the 2009 school year and transition into the Intermediate Skills program (“ISP”) for his fourth grade year beginning in September 2009. Ian would continue to receive language arts instruction with the special educator for 90 minutes, 5 times per week, math with the special educator for 60 minutes, 5 times per week, speech and language instruction with the speech and language pathologist for 30 minutes, 3 times per week and occupational therapy with the occupational therapist for 30 minutes, 1 time per week. (Exhibits S-11 and P-19 and testimony of Brown and Ian’s mother)
The parents partially rejected the proposed IEP on March 29, 2009 because “Ian required intensive 1:1 reading and writing support and Ian needed an individualized program across all areas of the curriculum that is designed for children with language based learning difficulties with programming to address Ian’s reading challenges, perceptual reasoning difficulties and processing speed difficulties.” The parents also refused the placement.10 (Exhibits S-11 and P-19 and testimony of Ian’s mother and Brown)
A few days later, Ian’s mother sent an email message to Ms. Simmons requesting help from her in the form of a letter to Wellesley stating a case as to why Wellesley should pay for Ian’s placement at Landmark. Ian’s mother also stated that Ian had made progress, that he was thriving in math and fully engaged in all classes so his case for an outside placement may be difficult to make. She also stated that Ian’s reading was still at the early stages and fell somewhere in the later 1 st grade stages. (Exhibit P-82 and testimony of Ian’s mother)
During the spring of 2009, Ryan Quigley, Ian’s private speech pathologist, reported to the Wellesley speech pathologist that Ian was continuing to demonstrate progress towards his articulation goals. A short time later, Ms. Quigley reported that Ian was able to independently produce initial /r/ in sentences in 9 out of 10 opportunities. Ms. Quigley reported that this was significant progress in comparison to previous weeks. (Exhibit S-8 and testimony of Quigley)
In June of 2009, the Wellesley staff again reported on Ian’s progress. Ms. Plant reported that Ian had made more progress with his decoding. He was now able to decode two syllable words. Ian was able to read an ending first grade level text with 94 % accuracy, 43 words correct per minute with excellent comprehension and 70 Dolche high frequency words. He was able to identify all key events in a correct sequence, use language from the text, reflect on what he read and make a meaningful connection. (Exhibit S-7 and testimony of Plant)
In math, Ian was able to read, write and order four digit numbers accurately, demonstrate automaticity with multiplication and division facts to 10, complete time elapsed problems and make change with different combinations of money up to one dollar. Ian was also able to solve word problems. (Exhibit S-7 and testimony of Plant)
Ms. Plant reported that Ian increased his ability to spell words to include words containing suffix –es, closed syllable exceptions and words with two closed syllables. Ian was using capital letters at the beginning of his sentences and periods and question marks appropriately. Given a graphic organizer, Ian was able to write a cohesive paragraph with a topic sentence, six details and a conclusion. With cueing, Ian was able to form the letters u, c and o within a small group setting with increased frequency. (Exhibit S-7 and testimony of Plant)
Ian’s speech pathologist, Katie James, reported that he was able to segment many multi-syllable words with approximately 80% accuracy, use word retrieval strategies to complete related activities with 85% accuracy and relate the gestalt of a relationship with approximately 80% accuracy. Using visual organizers, Ian was able to tell or retell a story or personal event with accurate structure and appropriate and important details with 80% accuracy. (Exhibit S-7)
Ian did not attend the WINGS summer program for the summer of 2009. Wellesley received a letter from Ian’s parents in August expressing their intent to withdraw Ian from Schofield Elementary School and place him at the Landmark School for the fall of 2009 and requesting public funding for the placement. Wellesley responded by letter to Ian’s parents refusing to fund Ian’s placement at Landmark and reiterating their opinion that the proposed IEP and placement provides Ian with a FAPE. (Exhibits S-5 and 6 and P-22 and testimony of Brown and Ian’s mother)
A TEAM meeting was held on November 25, 2009 to discuss the rejected IEP. Following this meeting and a review of the results of the March 2009 screening tests from Landmark, a revised IEP was proposed. The revisions included an additional 30 minutes of language arts instruction, a science and social studies goal and a few additional PLEP B accommodations. The revised IEP was similarly rejected by Ian’s parents. (Exhibit S-4 and P-33)
On March 8, 2010, a TEAM meeting was held. Landmark progress reports from January 2010 were reviewed.11 Shortly thereafter, Wellesley proposed a new IEP from March 8, 2010 to March 9, 2011. The proposed IEP contained goals for reading-decoding, reading-fluency, reading comprehension, written expression, mathematics, social studies/science, speech/language, social thinking and organization. Ian would receive reading instruction with a special educator 5 times per week for 60 minutes, written language instruction with a special educator 5 times per week for 60 minutes, math instruction with a special educator 5 times per week for 60 minutes, speech/language instruction with a speech pathologist 3 times per week for 30 minutes and occupational therapy services 2 times per week for 30 minutes. The WINGS summer program was also proposed. Ian’s parents neither rejected nor accepted this IEP so it was considered rejected by Wellesley.12 (Exhibits S-1 and 2 and P-20 and testimony of Brown and Ian’s mother)
Ian remained at Landmark for the 2010 to 2011 school year. During the 2010 to 2011 school year Ian was reevaluated by Dr. Noe. Her reevaluation occurred in June of 2010, three years after his initial evaluation. The intelligence testing revealed improvements across the board from the 2007 testing. The cognitive data highlighted Ian’s difficulties when tasks demanded grapho-motor coordination and on the spot planning and organization. The data also corroborated Ian’s propensity to demonstrate poor selective and sustained attention, poor monitoring of task rules in working memory and poor working memory skills when the executive control and speed demands increased. The testing further revealed considerable executive functioning issues, such as sustained attention, planning, organization, cognitive flexibility and response inhibition. Ian’s cognitive testing and behaviors supported a diagnosis of ADHD. The academic testing supported a diagnosis of a significant language based learning disability based on phonetic decoding and fluency issues. Dr. Noe recommended accommodations to address Ian’s inattention, organizational weaknesses and executive functioning skills. She further recommended small classes, periodic school evaluations, a 1:1 language arts tutorial, multisensory instruction and the use of assistive technology. (Exhibit P-41 and testimony of Dr. Noe)
On May 26, 2010, Dr. Noe observed Ian at Landmark. Dr. Noe reported that Ian seemed well suited to Landmark with its multisensory approach to learning, the consistent expectations, the use of organizational models and the 1:1 tutorial. On June 4, 2010, Dr. Noe observed the ISP program. Dr. Noe reported that the ISP program has many impressive components, including a myriad of literacy and writing interventions, several staff members and significant technical resources. She also reported concerns, including noise in the classroom, participation in mainstream classes and whether the program would appropriately address Ian’s executive function deficits. (Exhibit P-42 and testimony of Noe)
Ms. Simmons observed Ian at Landmark on June 9, 2010. Ms. Simmons reported that Ian had made progress due to Landmark’s small class size, the 1:1 tutorial, the level of structure, the use of visual support and the use of multisensory instruction techniques. She opined that the LiPS and the Read Naturally programs were successful for Ian and strongly recommended his continued enrollment at Landmark. (Exhibit P-40 and testimony of Simmons)
A TEAM meeting was held in October of 2010 to discuss Dr. Noe’s June 2010 evaluation, classroom observations conducted by Dr. Noe at Landmark and the ISP program, an assessment by Ryan Quigley, a Landmark observation conducted by Ms. Simmons and a student report from Landmark. An IEP amendment was generated as a result of this meeting. The amendment contained additional accomodations to PLEP A and PLEP B. The parents did not respond to the amendment. (Exhibit S-83 and P-39, 40, 41, 42 and 76)
DISCUSSION
It is not disputed that Ian is an individual with a disability falling within the purview of the federal Individuals with Disabilities Act (“IDEA”), 20 USC 1400 et seq. and the Massachusetts special education statute, MGL c. 71B. The IDEA was enacted “to ensure that all children with disabilities have available to them a free appropriate public education [FAPE] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment and independent living.”13 FAPE must be provided in the least restrictive environment. Least restrictive environment means that, “to the maximum extent appropriate, children with disabilities are educated with children who are not disabled, and special classes, separate schooling or other removal of children with disabilities from the regular education environment occurs only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.”14
Ian’s right to a FAPE is assured through the development and implementation of an individualized education program (“IEP”).15 An IEP must be custom-tailored to address Ian’s “unique” educational needs in a way reasonably calculated to enable him to receive educational benefits.16
In order to receive a FAPE, Ian must be offered special education and related services that are “reasonably calculated to enable a student to receive educational benefits.”17 A student is not entitled to the maximum educational benefit possible.18 Similarly, the educational services need not be, “the only appropriate choice, or the choice of certain selected experts, or the child’s parents’ first choice, or even the best choice.”19 The IDEA further requires that special education and related services be designed to result in progress that is “effective.”20 Further, a student’s level of progress must be judged with respect to the educational potential of the child.21
Massachusetts special education regulations provide that specially designed instruction and related services described within the IEP must be sufficient to “enable the student to progress effectively in the content areas of the general curriculum.”22 Massachusetts also requires that the special education services be designed to develop a student’s educational potential.23
An IEP is a snapshot, therefore, the IEP must take into account what was, and was not objectively reasonable when the snapshot was taken, that is, at the time the IEP was promulgated.24 The critical inquiry is whether a proposed IEP is adequate and appropriate for a particular child at a given point in time.25 This standard does not preclude the admission of evidence acquired after the creation of the IEP, but this evidence should only be used to evaluate the reasonableness of a school district’s decisions at the time they were made.26 This evidence may include, for example, a student’s subsequent educational progress.27
If a school district fails in its obligation to provide a FAPE to a student with a disability, parents may enroll their children in a private school and seek reimbursement for the cost of the private school.28 Reimbursement is a matter of equitable relief, with the decision-maker having the responsibility to consider, among other things, the reasonableness of the parties’ positions.29
The 2009 to 2010 IEP
In the instant dispute, the parents have the burden of persuasion to show that Wellesley’s proposed IEP for March 2009 to March 2010 was not appropriate, and that the Landmark School is appropriate.30 This IEP must be evaluated as of the time it was proposed in February of 2009.
At the time this IEP was promulgated, Wellesley had extensive information about Ian’s educational needs. This information included both evaluations conducted by Wellesley staff and outside providers, progress reports from the Wellesley staff and information from Ian’s private tutors and parents.
All of the available information revealed that Ian had difficulty with reading, written language and math. In November of 2007, Dr. Rappaport had formally diagnosed Ian with ADHD. Ian’s teachers had documented Ian’s difficulties with attention and impulsivity. They had also noticed that Ian’s frustration increased as tasks became more complex. The available information further revealed Ian’s relative weakness in executive functioning and processing.
As Ian’s needs were identified through evaluations, staff reports and parental input, IEP’s were developed to address these needs. Early on, Ian had gross motor difficulties which were addressed through physical therapy. These services were later reduced per agreement with Ian’s parents as he made progress. Wellesley and the parents worked closely and collaboratively. At each step of the way, Wellesley adjusted Ian’s IEPs as new information became available. After Wellesley conducted an evaluation in 2006 and had an opportunity to review the outside evaluation from Children’s, Ian’s 2006 to 2007 IEP was amended to reflect Ian’s need for increased academic support as he entered 1 st grade in September of 2006.
Ian’s March 2007 IEP was also amended to incorporate input from Ian’s parents. Ian’s parents had requested revisions to Ian’s reading benchmark and math goal and these revisions were made. The testimony was clear that Wellesley listened to suggestions and recommendations of outside providers and tutors and adjusted Ian’s IEP to be responsive to his changing educational needs.
At the end of 1 st grade, there was also a collaborative effort to place Ian in the PSP program for 2 nd grade beginning in September 2007 (the PSP program is the substantially separate language based learning program at the Schofield Elementary School developed to assist students with significant delays in the acquisition of literacy and math skills). The TEAM agreed that Ian would benefit from the intense instruction and environment of the PSP program.
The testimony was persuasive that Ian made progress during his first year in the PSP program (2 nd grade). Ian’s teacher, Laurie Plant, testified Ian became increasingly motivated to learn and engaged in school over the course of the year. He was happy and had numerous friends both in the PSP classroom and the general education classroom. He made progress in reading and writing
Despite the intensity of the instruction in the PSP program, Ms. Simmons, Ian’s educational consultant, testified that she started to get very concerned about Ian’s limited progress in reading during the 2 nd grade. Ms. Simmons, however, never expressed her concerns to the Wellesley staff either through email, phone calls or at the February of 2008 TEAM meeting that she attended.31 In fact, Ms. Simmons reviewed the proposed IEP and advised Ian’s parents that the IEP “looked good.” In October of 2008, Ms. Simmons emailed the Wellesley staff stating that she was impressed by Ian’s continued reading progress and found him to be more focused and less frustrated when compared to the prior year. Overall, I found Ms. Simmons’ testimony to be confusing and contradictory, which decreased her credibility as a witness.
Ms. Plant persuasively testified that Ian’s progress continued in 3 rd grade in the PSP program. He progressed beyond his peers in math so Ms. Plant offered him 1:1 instruction. He gained 60 sight words, completed Wilson Fundations and moved into the Wilson fluency program. He made 6 months progress in reading from January 2009 to June 2009. In second grade when he entered the PSP program, Ian was reading at a prereading level. By the end of 3 rd grade Ian was reading at the end of a first grade level. His independent reading level had progressed from an independent level 2 to an independent level 14 by the end of the PSP program.32 His writing skills had improved and he was writing eight sentence paragraphs with topic, details and conclusion
Sarah Aspero, Ian’s 3 rd grade regular education teacher, credibly testified that Ian was an active participant in her science and social studies general education class. Ian was engaged in learning and eager to share. Ms. Aspero further testified that Ian could comprehend grade level text that was read aloud. He was able to access the curriculum with the supports in place. She was persuasive in her testimony that she had seen, “a great amount of growth during 3 rd grade.”
Ms. Simmons administered the Developmental Spelling Assessment on January 29, 2009. She found that Ian had made some nice progress over the prior few months. Ian was able to read a guided level F text, placing him at the mid-first grade level. Ms. Simmons testified that this represented a “significant gain.”
Ian’s mother testified that Ian’s reading progress had picked up during 3 rd grade, although she felt it was slow.33 She also testified that Ian was performing at grade level in math. In February 2009, Ian’s parents wrote to the Wellesley staff stating that they were “thrilled with Ian’s progress in school both on an academic front and in his social/personal growth! Thanks for all your effort and inspiration.”
Lizabeth Brown, Wellesley’s department head for elementary special education, credibly testified that students in the PSP program typically work through steps 1.3 through steps 2.4 of Wilson during their two years in the program. She further testified that a considerable amount of time and energy is spent on these steps in order to build a strong foundation for reading development. Once the student reaches steps 3 or 4, he is able to take the learned skills and apply them to text. Ms. Brown testified that Ian had completed step 2.4 by the end of third grade and had made expected progress.
The February 10, 2009 to February 9, 2010 proposed by Wellesley identified Ian’s needs in writing, reading, math, executive functioning and attention. This proposed IEP provided the same intensive instruction, the same accommodations, assistive technology support and the opportunity to participate in general education science and social studies classes, and the rich curriculum provided by Wellesley which had allowed Ian to progress while in the PSP program.34 Additionally, the proposed IEP included all of the recommendations proferred by the various evaluators who tested Ian, including the private, outside evaluators.
Ian’s parents rejected the IEP because Ian “required 1:1 intensive reading and writing support and Ian needed an individualized program across all areas of the curriculum designed for children with language based learning difficulties with programming to address Ian’s reading challenges, perceptual reasoning difficulties and processing speed difficulties.” Wellesley did not agree that Ian required 1:1 intensive reading and writing. They agreed with the parents, however, about Ian’s other needs and offered continued individualized programming pursuant to the proposed IEP.
The parents provided no credible testimony or documents to support their claim that Ian required 1:1 intensive reading and writing support. None of the evaluators recommended that Ian receive 1:1 intensive reading and writing support. Ian had made effective progress in his reading and writing with the support provided by the staff in the PSP program. Ms. Plant testified that Ian’s reading and writing instruction was delivered in a 3:1, 2:1 or 1:1 format depending upon the skill being taught and the student’s ability to master the skill, but that Ian did not require a 1:1 level of instruction to make effective progress.
The parents also expressed concern about the Wilson reading program and argue that he should be given instruction in the Lindamood-Bell LiPS program. I found this testimony vague and unsupported by any evaluation or expert testimony. Ms. Simmons, who had tutored Ian and administered reading and spelling assessments to him, testified that she never recommended to Wellesley that Ian required the LiPS program. She also testified that the Wilson Reading program was appropriate. The credible testimony from the Wellesley staff was that Ian had made progress using the Wilson program.35
The Wellesley staff persuasively testified that Ian was making effective progress. They further testified that they expected Ian to continue making effective progress over the remaining months of the PSP program and in the coming year as a student in the programmatically comparable ISP program. The ISP language based program is essentially a continuation of the PSP language based program. It provides the same intensive instruction and support. Ms. Julie Leondis, the ISP teacher, credibly and persuasively testified about the ISP program and how it would beneficial to Ian.
Ms. Leondis testified that she works closely with Anthony Moretti, the general education 5 th grade teacher, to ensure that the students from the ISP program are able to access the 5 th grade curriculum. They meet weekly to review the material that will be covered the following week and make modifications if necessary so that ISP students can access the rich curriculum Wellesley has to offer. They are assisted by the speech language pathologist, who along with Ms. Leondis, support the ISP students in their general education classes.
Ms. Leondis and Ms. Brown testified that the ISP program utilizes the same research based methodologies as the PSP program, the Wilson program for decoding and encoding, the Wilson fluency program, Visualizing and Verbalizing for comprehension, Project Read Written Expression and Framing Your Thoughts for writing and the Saxon Math program. She also utilized Thinking Maps, which are visual organizers used for brainstorming and organizing information. Ms. James testified that she had introduced Thinking Maps to Ian. He enjoyed using them and Ms. James found them helpful for him. Ms. Leondis further testified that Ian had had success with these instructional programs in the PSP program so she believed that he would continue to be successful in the ISP program.
More noteworthy, was the lack of documentary evidence and testimony that Ian would fail to make effective progress pursuant to the proposed 2009 to 2010 IEP. The parents never expressed to Wellesley that Ian was not making effective progress or that they were in any way dissatisfied with the program. To the contrary, through various emails and other correspondence, the parents repeatedly expressed their satisfaction with the program and the progress Ian was making. It therefore was understandable that Wellesley staff testified they were surprised when they learned that Ian’s parents were unilaterally placing him at Landmark.
I heard no testimony from any evaluator that Ian required an outside placement in order to be provided with a FAPE. Ms. Simmons, who was intimately involved in Ian’s education, testified that she never recommended an outside placement. Yet, as early as 2007, prior to Ian’s attendance in the PSP program, Ms. Simmons wrote a letter to the Carroll School supporting his application for admission. When the 2009-2010 IEP was presented to Ms. Simmons, she did not suggest any changes in services or placement.36 In fact, she stated the IEP “looked good.” Dr. Noe who conducted an evaluation of Ian in 2007 made no recommendations for any educational programming, including any recommendation for an outside placement.37
Moreover, I find that the 2009 to 2010 IEP complied with the least restrictive environment mandate. Ian would have access to his typical peers during social studies and science class, lunch, other specials and all extracurricular activities. Ian would participate in reverse inclusion with his typical peers and access the rich and diverse curriculum and programs available to all Wellesley students.
The burden of proof rests with the parents to show that the 2009 to 2010 IEP would not provide a FAPE to Ian in the least restrictive environment. After careful consideration, I find that the parents have failed to meet their burden in this regard. Having found that the 2009 to 2010 was reasonably calculated to provide Ian with a FAPE in the least restrictive environment, it is not necessary to make any determination about the appropriateness of Landmark.
Reimbursement Claim for Private Tutoring
Turning now to the issue as to whether the parents are entitled to reimbursement for private tutoring and private speech and language services during the 2008 to 2009 school year, I also find that the parents have failed to meet their burden. The parents accepted the February 2008 to February 2009 IEP. They never requested that Wellesley reimburse them for these services nor did they ever request additional services be provided pursuant to Ian’s IEP. As a matter of fact, Ian’s mother testified that she never requested that Wellesley pay for Ian’s private tutors. She hired these individuals to support Ian. Moreover, there was no testimony that these private tutoring services were required for Ian to make effective progress.
The 2010 to 2011 IEP
Finally, turning to the issue as to whether the 2010 to 2011 IEP was reasonably calculated to provide a FAPE to Ian in the least restrictive environment, I find that Wellesley has met its burden in this regard.38
At the time the 2010 to 2011 was proposed in March of 2010, Ian had been in attendance at Landmark for approximately 1 ½ school years. Therefore, in addition to the information and evaluations Wellesley had available at the time the 2009 to 2010 IEP was proposed, Wellesley also had progress reports from Landmark.39
Wellesley did not propose the same IEP as the prior year. Wellesley considered the additional information from Landmark and again proposed an IEP that was individualized to Ian. This 2010 to 2011 IEP included an additional goal in social thinking, social studies and science and organization. The reading goals were further divided into separate decoding, fluency and comprehension goals. Additional PLEP A and PLEP B accommodations were also included.
The proposed 2010 to 2011 IEP clearly identified Ian’s educational needs and also proferred a comprehensive program to address these needs. Ian was still exhibiting difficulties in reading, written language, math, executive functioning and attention. The IEP called for Ian’s continued placement in the ISP program. As stated previously, Julie Leondis, the ISP classroom teacher, credibly testified about the services Ian would have received had he been enrolled in the program. She further testified that based on her review of Ian’s file, it was her opinion that Ian would have made effective progress in the ISP program pursuant to the proposed IEP. Ms. Leondis testified that Ian would have been grouped with similar peers, participated in general education social studies and science, had access to assistive technology, participated in reverse inclusion and had access to Wellesley’s rich curriculum.
Whereas special education law only requires a school district to consider information available to it at the time an IEP is proposed, the law does not preclude the admission of evidence acquired after the creation of the IEP, but only to the extent the evidence is used to evaluate the reasonableness of a school district’s decision at the time it was made.
Dr. Noe reevaluated Ian in June of 2010, after Ian had been a student at Landmark for one school year. Dr. Noe identified Ian’s reading and written language disorder, but her report did not include any specific educational recommendations. She included general recommendations that mirrored accommodations. These accommodations were proposed in Wellesley’s IEP and provided to Ian when he was enrolled at Wellesley. Dr. Noe, herself, testified several times that she was not a reading specialist and could not speak to specific reading recommendations. Most of Dr. Noe’s recommendations focused on Ian’s attention difficulties and executive function limitations. The recommendations she suggested in these areas, however, were also part of Wellesley’s proposed IEP and program.
Although Dr. Noe had never observed Ian in the PSP program and had never seen Ian’s work product generated from his time in Wellesley, she testified that Ian could not be an effective learner at the ISP program the same way he could be at Landmark based on her September 2010 observations of the ISP program and Landmark. Dr. Noe testified that the environment of the ISP program was distracting so Ian would have to be medicated. I found this testimony unsubstantiated based on Dr. Noe’s limited observation of the program, her lack of experience observing educational programs and the fact that she had never observed Ian in a public school setting.40 Dr. Noe was unable to testify about the educational aspect of the ISP program. Her sole basis for concluding that Ian could not be as an effective learner in the ISP program as he could at Landmark was that she found the room distracting. Dr. Noe’s testimony was wholly unpersuasive in this regard and did not convince me that Ian could not make effective progress in the ISP program pursuant to the 2010 to 2011 IEP proposed by Wellesley.
Several months after the 2010 to 2011 IEP was proposed, Dr. Noe conducted a reevaluation of Ian. His test scores revealed that his scores increased in some tests but decreased in others. Both staff from Wellesley who observed Ian at Landmark and Sandra Nadeau, Ian’s case manager at Landmark testified that Ian had significant difficulty during his 4 th grade year at Landmark. He had regressed in math and his overall lack of progress caused the Landmark staff to change some of his classes. Wellesley’s head of elementary special education, Ms. Lizbeth Brown, testified that Landmark staff reported to her that Ian had made minimal progress. Ian had been reduced a level in his math program. His testing scores from Landmark also revealed some regression. Testimony from Ms. Nadeau and Ian’s mother also revealed that Ian was initially very unhappy at Landmark. He had not made any friends through February of 4 th grade. He wasn’t consistently following the classroom routines and was occasionally exhibiting off track behavior.
I have reviewed and considered this after acquired evidence, including testimony about observations of the ISP program41 and Landmark, progress reports from Landmark, Dr. Noe’s June 2010 evaluation42 , and Ms. Quigley’s June 2010 assessment. I find that this after acquired evidence supports the appropriateness of Wellesley’s proposed 2010 to 2011 IEP for Ian.
Ian is entitled to an IEP and program that will allow him to make effective progress in the least restrictive environment. The evidence was persuasive that the 2010 to 2011 IEP was reasonably calculated to provide Ian with a FAPE in the least restrictive environment. Wellesley has met its burden.
Having found that the 2010 to 2011 was reasonably calculated to provide Ian with a FAPE in the least restrictive environment, I do not need to reach the question as to whether Landmark was appropriate.
ORDER
The IEPs dated March 2009 to March 2010 and March 2010 to March 2011 were reasonably calculated to provide Ian with a FAPE in the least restrictive environment. Further, the parents are not entitled to reimbursement for private tutoring expenses or private speech and language expenses incurred during the 2008 to 2009 school year.
So Ordered by the Hearing Officer,
_____________________________
Ann F. Scannell
Dated: June 20, 2011
1
Ian is a pseudonym used for confidentiality and classification purposes in publicly available documents.
2
Ian did not attend the WINGS summer program. Instead, the parents unilaterally placed Ian in the Carroll School summer program.
3
Shortly thereafter, Ms. Simmons began privately tutoring Ian in phonics and writing. Ms. Simmons tutored Ian one to two times per week until he entered third grade.
4
Ian was receiving the same special education services in first grade that he had been receiving in kindergarten, that is, academic, speech and language and occupational therapy services.
5
Ian did apply for admission to the Carroll School in the spring of 2007 but he was not accepted. (Testimony of Simmons and Ian’s mother)
6
As a result of Dr. Noe’s evaluation, a TEAM meeting was held in October of 2007 and the language goal on the 2007-2008 IEP was revised to focus more on phonological awareness. (Exhibits S-31 and 32 and testimony of Brown)
7
Ian began taking ADHD medication in the spring of 2008 and remained on medication through the 3 rd grade. Ian took the medication Monday through Friday during the school year. Due to sickness and refusal there were times when Ian did not take the medication. When he was taking the medication, school staff reported that Ian showed an improvement in his ability to attend. (Testimony of Ian’s mother and Plant)
8
A year earlier, in May of 2007, Ian applied for admission to the Carroll School and Ms. Simmons sent a letter dated May 23, 2007, supporting his application. She states in her letter that Ian had made progress in his reading during that school year and she had observed a recent jump in his literacy skills. He was not then accepted to Carroll. (Exhibit P-80 and testimony of Ian’s mother and Simmons)
9
As compared to the 2007 testing completed by Dr. Noe, Ian’s scores on the verbal comprehension, working memory and processing speed indices increased. His working memory index score placed him in the high average range versus the average range in 2007, and his processing speed index score in the average range versus the below average range. Ian’s score in the perceptual reasoning index decreased, moving him into the low average range from the average range in 2007. However, when he was evaluated by Dr. Noe in June 2010, his perceptual reasoning score was higher, placing him in the average range, as it had in 2007. Overall, Ian’s scores from 2007 to 2010 remained consistent.
10
On February 12, 2009, the parents sent a note to Wellesley thanking the staff for all their effort and inspiration and expressing their excitement about Ian’s progress in school, both on an academic front and in his personal and social growth. They also requested ideas on how to increase Ian’s interest in reading and ways to make reading more relevant and interesting to him.
11
These reports contained more information about what the class in general was working on rather than Ian’s individual progress in specific areas. Sandra Nadeau, Ian’s case manager at Landmark, testified that these reports do not report on progress but rather what the student is working on. She further testified that these reports set forth the student’s “scope and sequence lists” which are the same for all students.
12
A Hearing Request was filed by Wellesley in April of 2010. The parents responded to the request and filed a counterclaim.
13
20 USC 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A); Mr. I ex. Rel. L.I. v. Maine School Admin. Dist. No . 55 , 480 F.3d 1 (1 st Cir. 2007)
14
20 USC 1412(a)(5). See also 20 USC 1400(d)(1)(A); 20 USC 1412(a)(1)(A); MGL c. 71B; 34 CFR 300.114(a)(2)(i); 603 CMR 28.06(2)(c)
15
20 USC 1414(d)(1)(A)(i)(I)-(III); Honig v. Doe , 484 U.S. 305 (1988); Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley , 458 U.S. 176 (1982)
16
Lenn v. Portland Sch. Comm. , 998 F.2d 1083 (1 st Cir. 1993)
17
Rowley , 458 U.S. at 207
18
Rowley , 458 U.S. at 197
19
G.D. v. Westmoreland Sch. Dist. , 930 F.2d 942 (1 st Cir. 1991)
20
20 USC 1400(d)(4); North Reading School Committee v. Bureau of Special Education Appeals , 480 F. Supp.2d 479 (D.Mass. 2007)(the educational program must be reasonably calculated to provide effective results and demonstrable improvement in the various educational and personal skills identified as “special needs”)
21
Lessard v. Wilton Lyndeborough Cooperative School District. , 518 F.3d 18 (1 st Cir. 2008)
22
603 CMR 28.05(4)(b)
23
MGL c. 71B; 603 CMR 28.01(3)
24
Roland M. v. Concord Sch. Comm. , 910 F.2d 983 (1 st Cir. 1990)
25
Lenn v. Portland Sch. Comm. , 998 F.2d 1083 (1 st Cir. 1993)
26
Susan n. v. Wilson Sch. Dist. , 70 F.3d 751 (3 rd Cir. 1995)
27
Grim v. Rhinebeck Cent. Sch. Dist. , 346 F.3d 377 (2 nd Cir. 2003)
28
20 USC 1412(a)(10)(C)(n); Sch. Comm. Of Burlington v. Dep’t. of Educ. , 471 U.S. 359 (1985)
29
Florence County School District Four v. Carter , 510 U.S. 7 (1993)
30
Schaffer v. Weast , 546 U.S. 49 (2005) (The burden of persuasion in an administrative hearing challenging an IEP is placed on the party seeking relief. A party who has the burden of persuasion loses if the evidence is closely balanced).
31
When the new IEP was proposed in March of 2008, calling for Ian’s continuation in the PSP program for 3 rd grade, there were no concerns raised by Ian’s parents or their educational consultant, Ms. Simmons. This IEP was fully accepted by Ian’s parents .
32
Ian did not begin the Wilson fluency program until April of 2009. Both Ms. Brown and Ms. Plant testified that prior to April 2009, Ian was working on his basic reading skills and building a foundation. Now that a foundation had been established, Ms. Plant and Ms. Brown persuasively testified that they expected Ian’s reading to flourish as he progressed through the fluency program.
33
Ian’s parents argue that Ian did not make progress in reading because from the time he entered the PSP program until completion of the program, Ian remained two grade levels behind in his reading. The credible evidence showed that Ian was making progress in his reading skills and I heard no credible testimony that the fact that on some limited testing Ian scores remained two grade levels behind warrants a finding that Ian was not making effective progress in his program.
34
Pursuant to the proposed IEP, Ian would have completed 3 rd grade in the PSP program, then moved into the ISP program beginning in September of 2009, the beginning of 4 th grade.
35
Ms. Joanne Spillane, who privately tutored Ian for approximately 5 months, testified that she tried to use the Wilson program for Ian but it didn’t work for him. Based on Ms. Spillane’s training in Orton-Gillingham and her testimony that she was not trained in the Wilson program, I was unable to give her testimony any weight.
36
Ms. Simmons suggested one slight change in one of the proposed benchmarks.
37
The only evaluator who recommended any specific program for Ian was Dr. Rappaport, who diagnosed and treated Ian for his ADHD. Dr. Rappaport stated that Ian should remain in his intensive remediation program at school (the PSP program). Dr. Rappaport noted Wellesley should continue with the accommodations it was providing to help Ian improve his focus over time.
38
As to the 2010 to 2011, Wellesley is the party seeking relief and therefore, pursuant to Schaffer v. Weast , 546 US 49 (2005), Wellesley carries the burden of persuasion.
39
Ian underwent a second evaluation in June of 2010 with Dr. Noe and an assessment with Ms. Quigley in June of 2010. These independent evaluations were reviewed at a TEAM meeting in October 2010 and an IEP amendment was proposed that contained some additions to the PLEP A and PLEP B accommodations.
40
Even though Ian had great difficulty sustaining attention and exhibited inappropriate behavior when Dr. Noe evaluated him in 2007, Dr. Noe testified that Ian’s teacher, Ms. Plant, advised her that Ian did not exhibit that degree of difficulty sustaining attention or exhibiting inappropriate behavior in her classroom.
41
Ms. Simmons observed the ISP program in September of 2010. She had never observed the PSP program while Ian was a student in the program. Ms. Simmons’ extensive involvement with Ian while he was in the PSP, her attendance at the IEP meetings, her correspondence with Wellesley staff, and her testimony that both the 2009-2010 and 2010 to 2011 IEPs “looked good,” establishes that she was very familiar with the PSP program (and by analogy the ISP program). Ms. Simmons never raised any concerns with program and testified that the PSP program provided intensive instruction. Accordingly, I do find her opinion that the ISP program was not appropriate for Ian credible, in conjunction with the other testimony she provided.
42
Dr. Noe had not seen Ian nor evaluated him for over three years.