COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Bellingham Public Schools
BSEA # 01-2446
DECISION
This decision is issued pursuant to MGL chs. 71B (state special education law) and 30A (state administrative procedure act), 20 USC 1400 et seq . (Individuals with Disabilities Education Act), 29 USC 794 (Section 504 of the Rehabilitation Act), and the regulations promulgated under said statutes.
PROCEDURAL HISTORY
Parents requested a Hearing on December 26, 2001. An automatic hearing date was scheduled for January 16, 2001. On January 3, 2001, the School requested a postponement which the BSEA granted and the matter was scheduled for a Pre-Hearing Conference in Worcester, MA on February 26, 2001. The Parents requested a Postponement on February 8, 2001 and a Pre-Hearing Conference was scheduled for April 3, 2001. A Pre-Hearing Conference was held on April 3, 2001 and a Hearing was scheduled for June 4, 5, 6, and 11 in Worcester, MA. On May 7, 2001 the Hearing Officer received the School’s Motion to Compel Production of Documents and Answers to Interrogatories and a letter from the Parents’ attorney’s assistant indicating that the Parents’ attorney was in Europe and would provide documents upon his return on May 30, 2001. On May 10, 2001 the School requested that the first day of the Hearing be postponed in order for the documents to be produced prior to the Hearing. The School’s Motion to Compel Production of Documents and Answers to Interrogatories was Granted on May 23, 2001 and the Hearing was scheduled to commence on June 11, 20011 . The Parents filed a Motion for Reconsideration of the Ruling Upon Bellingham’s Motion to Compel Production of Documents and Answers to Interrogatories on May 31, 2001 and the School’s Opposition on June 4, 2001. The Parents’ Motion was Denied on June 6, 2001. The Parents filed a Motion for Recusal of the Hearing Officer on June 7, 2001 and the School’s Opposition to the Motion on June 8, 2001. The Motion was Denied on June 8, 2001. On June 11, 2001, the Parties agreed to Postpone the Hearing until August 16, 20, 22, and 23, 2001. The Hearing Officer issued an Order on June 20, 2001 in which the aforementioned dates were memorialized, an August 7, 2001 deadline was set for exchanging documents and witness lists, and a conference call was scheduled for August 8, 2001. On July 30, 2001 the Student’s Mother requested a Postponement of the Hearing until after September 24, 2001. The Mother stated that the family had obtained additional testing results and wished to share the results with Bellingham to try to reach an agreement. Bellingham sent its Opposition to the Parents’ Motion on July 31, 2001. The Parents’ Request for Postponement was Granted on August 2, 2001 and the Hearing was rescheduled until October 16, 24, 25, and 30, 2001. The Order stated that there would be no further continuances granted. The Parties were Ordered to file a joint statement of the issues to be determined at the Hearing by October 3, 2001 and to exchange documents and witness lists by October 9, 2001. They were also ordered to provide a written status update by September 24, 2001 and be available for a conference call between October 4 and 10, 2001. The Parties filed their status updates on September 24, 2001 and participated in a conference call on October 4, 2001. On October 15, 2001, the School filed its Motion to Postpone the First Day of Hearing because its counsel had bronchitis and had been hospitalized during the weekend and advised by her physician not to return to work immediately. The Parents opposed the Motion on October 15, 2001. The Hearing Officer was out of the office and unreachable on October 15, and Jackie Belf-Becker, the Director of the BSEA, contacted the Parties and informed them that the matter would not proceed on October 16, 2001. On October 16, the Hearing Office issued a Ruling allowing the School’s Motion to Postpone the First Day of Hearing. The Hearing was scheduled to proceed on the previously scheduled days of October 24, 25, 30, and November 9, 2001 via Order dated October 18, 2001. The hearing was held on October 24, 25 and 30, November 9 and 13, and December 10, 2001 in Worcester, MA before Catherine Putney-Yaceshyn, Hearing Officer. The School submitted its written closing argument on January 15 and the Parents submitted written closing arguments on January 16, 2001 and the record closed. Those present for all or part of the hearing were:
Student’s Mother
Student’s Father
Robert Hassan Principal, Bellingham Public Schools
Sharon Grant Special Education Teacher, Bellingham Public Schools
Thomas Scanlon Teacher, Bellingham Public Schools
Mary O’Malley Teacher, Bellingham Public Schools
Joshua Esters Psychologist, Bellingham Public Schools
Jane Connors Special Services Coordinator, Bellingham Public Schools
Sherri Miller Speech-Language Pathologist, Private Practice
Paula St. James Psychologist, Franciscan Children’s Hospital
Marilyn Engelman Educational Psychologist, Private Practice
Paula Morano Speech-Language Pathologist, Bellingham Public Schools
Grover Gentry Director of Pupil Personnel Services, Berlin-Boylston
Regional School District
Eileen Gillis Administrator of Special Education, Bellingham Public
Schools
C. Peter Gossels Attorney for Parents and Student
Regina Williams Tate Attorney for Bellingham Public Schools
Catherine M. Putney-Yaceshyn Hearing Officer
The official record of the hearing consists of documents submitted by the Parents and marked as exhibits 3 through 7; 9 through 11; 13 through 25; 33 through 40; 42 through 45, 47 through 54; and 56 through 59 (hereafter, Exhibit P-1, etc.); documents submitted by School and marked as exhibits 1 through 146 (hereafter, Exhibit S-1, etc.); and six days of recorded oral testimony and argument. Written closing arguments were received on January 16, 2002, and the record closed on that date.
ISSUES
Issue 1: Is the proposed 2000-2001 IEP dated April 12, 2000 reasonably calculated to assure Student’s maximum possible educational development in the least restrictive environment? If not, is Student entitled to compensatory education services? If Student is entitled to compensatory services, what is the nature and extent of such services?
Issue 2: Is the proposed 2001-2002 IEP dated May 8, 2001 reasonably calculated to assure Student’s maximum possible educational development in the least restrictive environment? If not, is Student entitled to compensatory education services? If Student is entitled to compensatory services, what is the nature and extent of such services?
Issue 3: Is the proposed 2001-2002 IEP dated September 17, 2001 reasonably calculated to assure Student’s maximum possible educational development in the least restrictive environment? If not, is Student entitled to compensatory education services? If Student is entitled to compensatory services, what is the nature and extent of such services?
Issue 4: Are Parents entitled to reimbursement for out-of-pocket expenses for a program during the summer of 2001?
PARENTS’ POSITION
Student has a fairly significant non-verbal language disability, not Attention Deficit Disorder. He requires speech and language services, occupational therapy, psychological counseling and physical therapy. In addition, Student should be placed in a regular classroom with no more than fifteen (15) students and taught by both a regular education teacher and a qualified special education teacher. A multi-sensory systemic language approach should be employed. The School has failed to provide the Student with educational services as promised in the 1999-2000 IEP, which was the last IEP accepted in full by Parents. The evidence shows that the Student significantly regressed during the 2000-2001 school year and that the IEP, as prepared by the School, was not calculated to assure the Student’s maximum progress in the least restrictive environment. Compensatory services should be provided. Evidence was also presented during the hearing that demonstrated Student’s regression during the 2001-2002 school year. The proposed IEP failed to assure Student’s maximum progress by eliminating speech and language services, by reducing occupational therapy, and by providing math support in the regular education classroom, as opposed to pullout instruction. The proposed IEP did not take into account the recommendations made by the independent evaluators. Compensatory services should be provided. Parents seek reimbursement for the summer program Student was enrolled in during 2001 as Parents were obliged to enroll Student in a social skills group when the School failed to amend Student’s IEP in a timely manner.
SCHOOL’S POSITION
Student has mathematics difficulties, sensory integration needs, and organizational/attentional difficulties. He performed in the average range on standardized testing and within the classroom. The issue raised by the Parents that the School failed to provide Student with services consistent with the 1999-2000 IEP is not supported by evidence nor was it an argument before the Hearing Officer. The services, modifications and accommodations provided to Student in the 2000-2001 IEP were appropriately drafted to meet the Student’s needs. The services included speech and language, occupational therapy, a one-to-one aide, and math support provided outside of the regular classroom. Evidence presented at the hearing regarding Student’s progress and evaluative information demonstrate that the IEP was reasonably calculated to assure Student’s maximum progress in the least restrictive environment. As such, compensatory services should not be provided. The 2001-2002 IEP was also reasonably calculated to assure Student’s maximum possible development in the least restrictive environment as it was responsive to what the School knew about Student. It comported with many of the recommendations made by the independent evaluators. The IEP goals focused on Student’s mathematical needs, academic achievement, social/emotional skills, visual perceptual/motor skills, self-regulating skills, and speech and language abilities. In addition, the 9/21/01 IEP drafted by Mr. Hassan was reasonably calculated to assure Student’s maximum possible development in the least restrictive environment. Compensatory services should not be provided. Lastly, the School should not reimburse the Parents for the school program that Student attended during 2001 as the School offered Student a summer program in an amended IEP that was calculated to meet Student’s needs. The summer program chosen by Parents that Student attended was intended for low functioning students, unlike the Student.
SUMMARY OF THE EVIDENCE
1. The Student is a fifth grade Student residing within the Bellingham Public School District. (S-45) He has been diagnosed with Attention Deficit Disorder. (S-45; S-37, P-16) His profile has been “deemed consistent with a diagnosis of Asperger’s Syndrome.” (P-38) Testing results have been “consistent with a nonverbal learning disability.” (S-37, P-16)
2. The Student began receiving special education from the Franklin Public Schools when he was three years old. He moved to Bellingham in 1996 and Bellingham offered an IEP (S-102) which Mother accepted. Bellingham offered a series of additional IEPs from 1996 through 2000 (S-72, S-78, S-84, S-97, S-100), and she accepted all of them. (Mother)
3. Joshua Esters, Ph.D. testified that he has been employed by Bellingham Public Schools as a school psychologist since 1988. Dr. Esters stated that he is certified in Massachusetts as a clinical psychologist, an educational psychologist, and a school psychologist. (S-135) He stated that he first became familiar with the Student in 1996. He stated that he did not assess Student in 1996 because a prior psychological evaluation had been conducted in 8/96 and such a test should not be repeated within six months. However, Dr. Esters said that he was present during an IEP Team meeting on 10/9/96 where he explained several issues regarding Student’s functioning (attentional issues; right hemisphere weakness; and weaknesses in coding) to the Team. (S-106) In addition, Dr. Esters testified that he consulted to the Team members from 1996 until 1999 regarding Student’s attentional difficulties. (Esters)
4. Dr. Esters administered the following evaluations to Student as a part of the 5/24/99 psychological evaluation: WISC-III, WRAML Verbal Learning Subtest, Teacher’s Rating Scale, Writing Assessment, and Psychological Interview. (S-57) In Dr. Ester’s report, Student was described by his teachers as “cooperative,” “eager to please,” and “easily distracted.” Dr. Esters wrote that Student misunderstood directions two times on the coding section and worked very slowly. Although Student’s results on the WISC-III indicated a full scale score of seventy-nine which fell in the below average range for Student’s chronological age, Dr. Esters inferred Student’s actual ability to be much higher and compromised by Student’s significant difficulties sustaining attention. Dr. Esters testified that he was not sure whether Student had been taking his medication when the evaluation was conducted. The WISC-III results also indicated a difference, “not necessarily a significant difference,” between Student’s verbal and non-verbal skills; and a deficit in math. (S-57) On the WRAML Verbal Learning Subtest, Student’s auditory memory fell within the average range. Dr. Esters noted that Student’s difficulty when first exposed to a task and need for more time to prepare himself mentally is consistent with ADHD in other children. He concluded that Student’s verbal reasoning may be somewhat delayed and that because of Student’s slower processing style, he requires more time to do written assignments. In addition, he concluded that Student has probably average intellectual ability; however Student’s achievement is compromised by attentional difficulties that appear to be inadequately controlled. Dr. Esters summarized that “Student’s ADHD compromises all of his functioning.” He recommended that Parents consult with Student’s physician to modify ADHD medication so that Student’s attention, impulsive behaviors, and concentration are improved. Dr. Esters further recommended that Student continue to receive special education services, including occupational therapy for Student’s graphomotor abilities and visual/perception abilities. (S-57)
5. Stanford Achievement test scores from 5/99 (near the end of his 2 nd grade) reflect grade equivalency of 1.2 in math and 2.3 in reading. Stanford Achievement test scores from 5/00 (near the end of his 3 rd grade) reflect grade equivalency of 1.5 in math and 2.4 in reading. (P-48)
6. An occupational therapy assessment by Bellingham in May 1999 recommends that Student would benefit from 50 minutes, once per week of sensory integration, and regular occupational therapy would be dropped because of significant progress in this area; that cursive handwriting program continue; and that a sensory diet be provided. (S-56)
7. A special needs assessment by Bellingham, in May 1999, the end of Student’s second grade, provides the grade equivalency scores of the Woodcock-Johnson Tests of Achievement, which include the following:
· letter-word identification: 3.3
· calculation: 1.3
· dictation: 2.6
· science: 2.5
· passage comprehension: 2.4
· applied problems: K.8
· writing samples: 1.5
· social studies: 3.1.
(S-58)
8. A teacher assessment by Bellingham dated May 25, 1999 concluded that Student reads well on grade level; his written language skills improved; he enjoys talking in front of the class; he often becomes confused with directions; his spelling skills are very good; he does not know basic math facts and has trouble with multiple-step processes but has made progress; he is doing well with cursive after a difficult start; he is easily distracted and has difficulty sustaining attention; and he has good peer relationships. (S-60)
9. Jane Connors testified that she has been the Special Services Coordinator for the Stall Brook School for the past three years, and previously was a speech-language pathologist in the Bellingham Public Schools for twenty years. She is a licensed speech-language pathologist and is licensed in communication disorders. She has provided direct services to Student from his kindergarten year until his second grade. After that, she was a consultant to his teachers, and she currently coordinates the IEP team meetings for Student. She testified that when she first met Student and began to work with him in kindergarten, he presented as a fearful, anxious child; his expressive skills were very good, his vocabulary and sentence structure were good; and he had a lot of difficulty with attention and focusing. She also noted that his phonemic awareness (skills needed in order to read) were very good for a kindergarten student. (Connors)
10. Ms. Connors testified that during the time that she worked with Student, he made significant progress. His socialization skills improved (he became more socially active and participated much more with the other children in the group Ms. Connors worked with) as did his phonemic awareness skills. She testified that in May 1999, she assessed Student regarding his speech-language and she concluded that his standard scores were well within normal limits for his age. Her report recommends speech-language services for 30 minutes, once per week in order to work on verbal reasoning skills (S-59). She also noted that Student’s attention span was fairly short and focusing was difficult for him – he could focus only for about 10 to 15 minutes at a time. She stated that at the 1999 Team meeting, the Team felt that Student was making “tremendous gains,” and Parents indicated that they were pleased with his progress. (Connors)
11. Mr. Scanlon testified that during his third grade social studies class, the Student was reserved in the beginning of the year but “warmed up.” By the end of the grade, Student was “outgoing,” “sharing,” and “caring.” In describing Student, Mr. Scanlon explained that Student appeared more thoughtful than other third graders. Mr. Scanlon stated that Student participated in class discussions when he felt like it. Mr. Scanlon noted that Student’s progress was outstanding, evidenced by Student’s B average. (Scanlon)
12. Paula Remillard Morano testified that she is a certified speech/ language/ hearing disorder specialist and a member of the American Speech and Hearing Association. She has a speech pathologist within the Bellingham Public Schools since 1999 and provides services to students in kindergarten through sixth grade. (S-134) She became familiar with Student at the beginning of the 1999-2000 school year (Student’s third grade) when she provided his speech services, pursuant to his IEP. (S-54) She testified that in preparing to work with Student to improve his verbal reasoning skills, she reviewed Student’s IEP (S-54) and the results of the speech and language assessment (S-59). In her opinion, the test scores from the speech language pathologist indicated that Student’s scores were “mostly” average or high average. (S-59)
13. The Student’s last accepted IEP was drafted pursuant to an October 13, 1999 Team meeting to amend a partially rejected IEP dated 5/26/99. The amendment was accepted and provided for the following services: O.T. consult 1×15 minutes/week; L.D. direct pull-out services 2×45 minutes/week; SLP 2×30 minutes/week direct pull-out services; SI/OT 1×50 minutes/week. The IEP indicated, “The student may receive direct services within the classroom setting when it is educationally appropriate to do so.” It provided that the Student would have a full-time aide in the classroom to work on organizational skills and to restate, rephrase, and restructure messages and instructions instantaneously so that it can be more easily understood by Student. It provided a T.A. would be responsible for a weekly notebook. (S-50, S-54)
14. On March 10, 2000, the Team sent an invitation to an annual review meeting to the Parents. (S-49) The Team convened on April 12, 2000 with the following members: Jane Connors, special needs coordinator; Miss Squizsero, Resource Room Teacher; Mother; Ms. Remillard, Speech/Language Pathologist; Mrs. Worsley, third grade teacher; and Mrs. Winslow, Occupational Therapist. (S-50)
15. On April 26, 2000, Bellingham forwarded the proposed IEP dated April 12, 2000 (for the period 4/00 to 4/01) to the Parents. The Student Performance Profile described the Student as having a diagnosis of ADD for which he was on medication. The Profile stated that Student needed a multisensory approach, especially in the areas of math acquisition and listening; he learns best through repetition, and rephrasing using manipulatives as much as possible; and that he can become overwhelmed when given too many assignments, directions or instruction at one time. The profile also explained that a full-time aide would be in the classroom with Student to work on organizational skills and restate, rephrase and restructure messages and instructions instantaneously. The Student Instructional Profile states that information should be chunked, that Student may need more time to complete assignments and that modifications by the classroom teacher include preferential seating, frequent checking of work in progress to assess skill acquisition, subtle cues and prompts for refocusing, breakdown of lengthy written assignments into small manageable units, study guides in science and social studies with optional testing in the resource room where tests may be read to Student if necessary. (S-45)
16. The following services were proposed in the Service Delivery grid: Consultation with all specialists 1×15 minutes per week2 ; direct speech/language services with the speech language pathologist in the regular education class 2×15 minutes per week; direct math services with the “L.D. teacher” in another setting 2×20 minutes per week; direct O.T./S.I. services with the “O.T. Spec. 1×50/week and 1×30/week. (S-45)
17. Ms. Connors testified that the IEP (S-45) reflected a reduction of the speech-language services because the Team concluded that Student should spend more time in the classroom and because his speech-language scores were commensurate with his IQ; however, the speech-language pathologist, Paula Remillard Morano, agreed to work with Student within regular education.
18. Ms. Morano testified that during the 4/12/00 Team Meeting, she explained to the Team that Student had made sufficient progress and recommended that his speech and language services be terminated as he had achieved the goals and was working at his potential. (S-48) She testified that Mother disagreed with this recommendation. (Morano) She explained that she worked with Student in a small group, comprised of either one or two other students, and focused upon language processing, memory, categorizations and analogies to strengthen Student’s verbal reasoning skills.
19. Student received the following grades for the 1999-2000 school year: Reading (at grade level): C, C, C, C; Spelling (assigned words): A-, A-, A-, A-; Spelling (daily work): C-, C , B, B; English: B, A, A, A-; Written expression: C, C, C, C; Math (at grade level): C-, C, C, C; Science: C, C , D, C-; Social Studies: B , C, C , B ; Handwriting: B , B-, C , C; Spanish: S, S , S , S; Social Skills/Work Habits: “S” in all categories for all terms, except “S-“ for all terms for “Completes Work in Assigned Time” and “S-“ for all terms for “Works Independently.” (S-41)
20. The Mother requested an independent evaluation on April 13, 2000. (S-47) On April 25, 2000, Grover Gentry approved her request in a letter. (S-46)
21. The Mother rejected the proposed IEP in full on April 27, 2000. (S-45) She testified that she rejected the plan because she was concerned that the Student was not mastering many of the skills being taught, including reading. She also expressed concern that the speech-language services were discontinued in this IEP. She testified that she believed the proposed classroom aide was not sufficiently qualified for her son. (Mother) On or about April 27, 2000, the Mother requested a meeting because the IEP did not contain a summer program and she wished to discuss the omission. (S-45)
22. The Team reconvened on May 4, 2000 to review the rejection of the IEP. (S-44, S-43) Those present for the meeting were: Jane Connors, special services coordinator; Joshua Esters, psychologist; Grover Gentry, Jr., Director of Special Services; Debbie Squizszero, L.D. Specialist; Cheryl E. Follett, Educational Advocate; Mother; Father; Grandmother; Paula Remillard, Speech Language Pathologist; Leona Worsley, Grade 3 teacher. (S-43) The Team discussed a summer program. Ms. Connors testified that the Team agreed that math services should be provided in the summer, but concluded that the Student would not likely regress in the social area and did not recommend services in that area. Despite the Team’s belief that social regression was not likely, a summer component was offered in the area of socialization skills. She explained that the IEP included a summer enrichment program at the Stall Brook School, an integrated program run by Bellingham. (S-43; Connors)
23. Mother testified that she was not provided with the IEP amendment contained in S-43. However, the Student did attend a summer program for 2000 at South School that was provided by Bellingham. (Mother)
24. Mother testified that she sought and obtained an independent evaluation from Franciscan Children’s Hospital. (P-14 – P-19; S-31-S-39) She testified that she provided the reports to Bellingham at the end of August 2000. (Mother) Grover Gentry, the Bellingham Director of Special Services from August 1999-August 2000, testified that he received the written reports from the independent evaluators approximately September 20 (or 30), 2000, and that typically it took Franciscan Children’s Hospital approximately six weeks from the date of the evaluation to produce the written reports. On September 14, 2000, Bellingham sent the Parents an Invitation to a Team Meeting to be held on October 11, 2000. (S-30) The Team meeting notes indicate that the Team had not received copies of all of the reports and the Parents’ request to tape record was denied. Therefore, the meeting ended and was reconvened on October 20. (S-29; S-28; Connors, Gentry) The following Team members participated in the October 20 Team meeting: Paula Eaton, resource room teacher; Father; Mother; Cheryl Follett, Educational Advocate; Grandmother; Grover Gentry, Director of Special Services; Jane Connors, Special Services Coordinator; Paula Remillard, Speech Language Pathologist; Sue Morgan; and Mary O’Malley.
25. During the Team meeting, the Parents sought additional speech and language services, wanted the Student removed from Spanish class, and did not want the Student to be dependent on Mrs. Brooks, his aide. (S-27) The Parents were concerned that the Student was missing books and jackets when he arrived home and wanted Mrs. Brooks to check his book bag. (Mother, Father) Ms. Connors testified that Mrs. Brooks has been a special education aide for approximately 20 to 25 years (including work in a behavioral class and an inclusion class); and prior to the 2000-2001 school year, Parents had not expressed to her or the Team any concerns about Ms. Brooks. (Connors) The Mother reported to the Team that the Student had not been on medication since before Dr. Esters evaluated him. Parents expressed concern about the amount of time that he was spending on homework and Ms. O’Malley stated that homework should be twenty minutes per night and his Mother could act as his scribe. (S-27)
26. The Team reviewed and discussed the Franciscan Children’s Hospital evaluations at the October meeting. They reviewed the Franciscan diagnosis of non-verbal learning disability and the implications for Student’s programming. Bellingham’s clinical psychologist was not at the meeting, thus limiting the discussion. The Team sought to reschedule the meeting so that the psychologist could attend, but Mother refused. (Connors)
27. Mother raised her concern that Student “hated” school and that his self-esteem was very low.3 Ms. Connors testified that the Team thought that Student had adjusted well to school and was not having any problems with self-esteem, communicating and playing with other children, and seemed well adjusted. She recalled that the Team decided that Bellingham’s adjustment counselor (a licensed school psychologist with a Masters Degree who normally works with children regarding these issues) could work with Student regarding his self-esteem issues. (Connors)
28. The Team reviewed the psychological and psychosocial evaluations conducted at FCH on August 14 and 15, 2000 by Richard Cowan, Ph.D. and Karen Livingston. The evaluations found that Student’s verbal IQ of 85 (low average range, 16 th percentile) and performance IQ of 66 (mildly retarded range, 1 st percentile) indicate a 19-point difference suggesting that his verbal skills are better developed than his nonverbal skills, that his nonverbal skills are causing him difficulty and that test results are consistent with a nonverbal disability. The report indicated that Student is “struggling to contain and internally withhold his unwanted, overwhelming feelings of anxiety and low self-esteem, and experiences a sense of failure and helplessness in his attempts to secure the affirmation of others.” It further noted that “in response to emotional stress, he lacks effective, appropriate forms of expression, becoming frustrated and easily angered.” The reports concluded that Student’s attentional issues seem to cause significant impairment both at home and at school. The reports recommended a regular education classroom with no more than 15 children and at least two teachers, using a language-based approach; a teacher trained to work with children with language impairments; participation in individual weekly therapy with a family component; follow up with a physician to address options regarding psychopharmacological treatment of Student’s behavior and emotional difficulties; and participation in a structured, supervised group activities with similar age peers wherein Student may experience some success and enjoyment with peers. (S-34, S-37, P-16)
29. Dr. Esters testified that upon reviewing the psychological and psychosocial evaluations conducted at Franciscan Children’s Hospital (S-37, S-34), he noted a few significant details. First, he described the disparity in the WISC-III coding sub-test results where Student had a scaled score of one in 8/00 as compared to a scaled score of six in 5/99. Dr. Esters explained that this meant approximately a sixty point difference in IQ terms; he testified that the disparity may have been caused by Student’s attentional difficulties. He also testified that the psychosocial evaluation (S-34) did not indicate the battery assessment used to reach the conclusions. (Esters)
30. The Team reviewed the results of the Franciscan Children’s Hospital speech language evaluation performed on August 15, 2000 by Sara Poor, MS, CCC-SLP. Ms. Poor concluded that Student has average receptive and expressive language skills (Student’s expressive language score as derived from the Expressive One-Word Picture Vocabulary Test-R (EOWPVT) indicate a standard score of 110 and an age equivalency of 11.7 and Student was 10.1 at the time), but demonstrated isolated deficits with integrative language skills and overall difficulty with auditory memory tasks. She found that Student “exhibited difficulty recalling information and using the information to make decisions and respond to questions, so that as linguistic demands increased in length and complexity, Student was unable to follow the demands of the task, and he exhibited difficulty retaining information for brief periods of time in order to complete analogies.” Ms. Poor recommended a language-based regular education classroom co-taught with a special educator, with no more than 15 children. She also recommended speech-language therapy for 30 minutes once per week in an individual session, and two small-group speech-language therapy sessions each week. (S-38, P-15)
31. Ms. Morano was present for the Team discussion of the Franciscan Children’s Hospital evaluations. (S-27, S-29) She testified that she had not observed Student having difficulty with pragmatic skills as Dr. St. James had stated in her evaluation summary. (P-10) She recommended that speech-language services be discontinued since Student did not meet eligibility criteria for these services (he has age-appropriate speech language skills) but she agreed to provide services to him in regular education because Parents wanted these services. (Connors, Morano) She testified that she continued working with Student during the 2000-2001 school year. To help Student develop strategies with auditory processing, memory and written language, Ms. Morano worked with Student in the classroom two times per week during language arts. (S-45) She testified that Student has a great deal of difficulty putting his thoughts onto paper. She consulted with Ms. Brooks and shared cueing strategies with her. Ms. Morano opined that Student benefited from working with her and as a result Student volunteered to share his stories and otherwise participated more often within the class. She stated that as the year progressed, she observed Student as requiring more redirection and as having a more difficult time focusing. (Morano)
32. Priscilla Pano, M.Ed, performed an education and reading evaluation at Franciscan Children’s Hospital on August 15, 2000. (S-36,S-39, P-15) Ms. Pano concluded that Student reads and comprehends connected text at a 2 nd grade readability level due to difficulty with reading comprehension. Written expression skills, which were assessed informally4 were reported at the early elementary level due to difficulty with punctuation, capitalization, spelling and story formation. Student’s standard score on the Kaufman Spelling sub-test was reported as 93 and the grade equivalency was reported as 3.8. Student’s math computation skills indicate that he is functioning within the 2 nd grade level. His scaled score on the Kaufman Mathematics Computation sub-test was reported as 76 and his grade equivalency was reported as 2.7. The report indicated that Student has verbal skills in the low average range and nonverbal skills in the mild to mentally retarded range, with a significant difference between the scales. (S-39) The Student’s phonics skills were assessed informally. The report is unclear as to how the assessment was administered and interpreted. Ms. Pano concluded that Student’s “abilities in the area of phonics will need to be further developed.” (S-36, P-15) Student’s oral reading was assessed at a “4 th grade readability level” as was his word recognition. His reading comprehension as assessed by the Kaufman reading comprehension sub-test was reported by a standard score of 80 and a grade equivalency of 2.1. In her summary, Ms. Pano states that the Student required extra time to reread one of the reading comprehension passages to “achieve adequate comprehension.” She then concludes, “This type of compensation would not generally be available in day-to-day activities.” (S-39, P-15)
The report recommends placement in regular education classes in which all academic subjects are co-taught with a special education teacher to provide the ongoing modifications, accommodations and cueing that will encourage success, with a special education teacher trained to teach children with language impairments, and no more than 15 children in order to provide maximum individualized and small group instruction, and continuation of assistance from an instructional aide. The report further recommends that a multisensory, systematic language approach be used to further develop Student’s phonics knowledge and application skills. It recommends instruction in a small group of no more than 3 children with similar cognitive and reading needs for at least two one-hour sessions each week. Other recommended accommodations and strategies included daily use of decodable text that reinforces decoding skills, direct teacher instruction for word meanings, providing a structure for reading an assignment, exploration of background knowledge and experience with a topic before reading, help with formulating and organizing the concepts from reading material, stories and passages read to him and discussed to foster comprehension skills, general knowledge and vocabulary, daily opportunity for writing, extra processing time, spiraling information and reviewing previously learned information, and reassurance and praise regarding academics. (S-36, S-39, P-15)
33. The various evaluators from Franciscan Children’s Hospital who evaluated the Student (Cowen, Barlow, Barrett, Dembeck, Livingston, Pano and Poor) held a meeting at which they made recommendations for the Student (S-31, P-14) They concluded that Student has a nonverbal learning disability, ADHD, predominantly inattentive type, and mood disorder NOS and made a list of recommendations5 .
34. Following the October 20, 2000 Team meeting, Bellingham proposed an Amended IEP which proposed consultation between the teachers and parents 1x 15 minutes per week; O.T. 1x 50 minutes per week in the therapy room; 1x 30 minutes per week in the classroom; continuation of the weekly home-school notebook with input from all specialists; and discontinuation of speech and language services. (S-22) The Parents rejected the amendment on November 10, 2000. The Mother testified that Mr. Gentry [and the Team] declined to accept any of the Franciscan evaluators’ recommendations for additional services. (Mother) Mr. Gentry testified that he made several recommendations (reflected in S-27) for services for Student, which included counseling for Student with his family, psychopharmacology follow-up and group activities in a student setting, but that Mother responded that these issues were already being addressed. (Gentry)
35. Sharon Grant testified that she is a certified elementary and special education teacher. She has worked in education for twenty-two years, has been a classroom teacher for ten years, and has taught in the Bellingham Public Schools as a special education teacher for the past five years. (S-131) She became familiar with Student at the beginning of the 2000-2001 school year (Student’s fourth grade) when she provided math services to Student, pursuant to his IEP. (S-45) She met with Student for seventy-five minutes four days a week. She testified that she modified the fourth grade Addison-Wesley curriculum for Student and was aware that Student’s math ability had tested at a second grade level. She provided math instruction to thirteen students, including Student, and was assisted by two aides, including the Student’s 1:1 aide, Ms. Brooks. Ms. Grant consulted with Ms. Brooks and believed that the strategies employed by Ms. Brooks were sometimes helpful. (Grant)
36. Ms. Grant explained that when working with Student, she employed several different strategies: she repeated directions, provided hands on instruction, implemented “touch math,” and re-taught lessons. Ms. Grant testified that Student responded well to “touch math” and was able to implement those strategies when he added and subtracted. She testified that Student, like many other children in Student’s math class, had “a lot of attentional issues towards math,” making it difficult for him to focus and stay on track. She explained that she addressed Student’s attentional difficulties by reviewing and re-teaching lessons. She noted that his difficulty increased throughout the school year. She believed that the increased difficulty may have been the result of the materials becoming more challenging. She believed Student’s difficulty in math to be caused primarily by motivational issues. In addition, she testified that she believed that medication or lack thereof would affect Student’s performance. (Grant)
37. Ms. Grant explained that she evaluated Student through weekly quizzes and included details of his progress in Progress Reports. (S-13, S-15, S-23) She acknowledged that throughout the year, Student had difficulty comprehending new concepts; and to address this difficulty, she re-taught, reviewed, re-directed, re-focused, and whenever possible used hands-on teaching. Her 11/00 progress report includes the following: “[Student] has a great deal of difficulty comprehending new concepts taught in the classroom.” (S-23)
She testified that overall Student made progress in math throughout the year despite a Term IV grade of “D.” (P-52, pg. 45). She commented that Student was very sociable during the class, wanting to talk about a joke or share something with the class, for example, and generally getting along well with his classmates. Ms. Grant testified that she had reviewed Student’s performance on the MCAS and stated that Student received a score of 218 but needed a score of 220 to pass. (Grant)
38. Ms. Grant testified that she observed Student on the playground once a week while she had playground duty and never observed evidence that peers were harassing Student. In her opinion, Student appeared happy. (Grant)
39. Mary O’Malley testified that she has been employed by Bellingham for the past 33 years as a 2 nd , 3 rd and 4 th grade teacher of which approximately 23 years were as a 4 th grade teacher. (S-130). She testified that for the 2000-2001 school year, she was Student’s 4 th grade homeroom teacher and there were 21 children in the class. Student’s aide, Peg Brooks6 was in the classroom and Mrs. Remillard [Morano] would also come into the classroom two or three times per week to provide speech-language services. (O’Malley)
40. Ms. O’Malley testified that Student adjusted to her classroom very well – he was cooperative and outgoing, with a great personality, and he often engaged in conversations and interacted well with other children. She noted also that he enjoyed giving presentations in front of the class. During the presentations, he was verbally direct and organized, and the other children were engaged and interested in his presentations. She was never aware of other children harassing Student. (O’Malley)
41. Ms. O’Malley testified that a typical day in her classroom is very structured, she provides mechanisms for children to organize themselves and their work, she uses multi-sensory teaching approaches and uses different approaches where a child does not understand something when taught in a particular manner. She noted that she re-explains material to a child if the child does not understand a lesson. Papers written by a child are prepared as drafts. The first draft focuses on topic development and supporting details and the child prepares the second draft after review and Ms. O’Malley makes corrections. (O’Malley)
42. Ms. O’Malley testified that she provided oversight of Ms. Brooks and helped her understand what could be done to help Student. She testified that Student and Ms. Brooks had a “great” relationship. She observed that they kidded around a lot. She stated that Ms. Brooks never yelled at him or was harsh or demanding, but would try to coax him to do more. To her knowledge, Ms. Brooks never corrected or scolded Student in front of the class, as is described in Parents’ School Journal. (P-50, December 23, 2000) She found that Ms. Brooks had a positive effect on Student and helped him with his attention. She testified that there was a routine followed at the end of each day with Student and Ms. Brooks to ensure that Student had the books he needed and to review his homework to be done that night to ensure it was an appropriate amount. (O’Malley)
43. Ms. O’Malley testified that over the course of fourth grade, the Student showed some regression in certain skills. His writing skills and handwriting started off satisfactorily, but then “went downhill” beginning in November, and his projects were not indicative of his intelligence and academic level. She reviewed his written work from third grade and found that his third grade printing and writing were much more legible and neat; and the writing was more organized and more on task, with better sentence structure. However, she noted that Student did very well in spelling in fourth grade. (O’Malley) She testified that attention and focus were major issues for Student although his attention was better when he was interested in the subject. She explained that his attention deficits made comprehension more difficult for him. He had difficulty with inferential and written comprehension, but oral comprehension was very good. She explained that over the course of the year, there was a reduction in his ability to focus and his attention span was not as long at the end of the year as it had been at the beginning of the year. However, she noted that often when he appeared not to be listening, he was able to respond appropriately to a question. (O’Malley)
44. Ms. O’Malley’s written assessment of Student, dated April 23, 2001, concludes that he is generally working on grade level (including reading on a 4 th grade level). It also notes that he is functioning approximately 6 months below grade level in math, with weaknesses in math facts, math concepts, computation and problem solving. She testified that math was generally difficult for Student. The assessment also notes that Student needs frequent practice and review to maintain his math skills, and he needs reminders to focus and pay attention during instruction. It states that he requires the following accommodations: multi-sensory approach (she uses whatever teaching approach will be effective with him), re-phrasing, additional time to complete tasks, frequent checking on his work (for understanding), and one-to-one aide.7 (S-4)
45. Ms. O’Malley testified that Parents expressed concern about Student having emotional difficulties during a June 2001 meeting, but she never saw this in school. She concluded that Student had a “wonderful” year, and that he was happy in the classroom, without difficulties regarding self-esteem. (O’Malley)
46. Mother testified that in October 2000, she began having her son see a psychologist, Dr. St. James, once per week because Student was experiencing so much stress from school. She testified that he was scratching his legs at night because he was anxious about going to school, and reporting that he feels “harassed” at school by teachers as well as other students. Mother further explained that her son has felt uncomfortable or unsafe at school, and as a result, “he shuts down and is unwilling to learn”, and that these feelings continued through the school year. Mother also noted that her son has been seeing a psychiatrist (Dr. Craig Allen, or in his absence, Dr. Zelda) once each month for his medications and for therapy. (Mother)
47. Paula St. James, Ph.D. testified that she is a clinical developmental psychologist employed at Franciscan Children’s Hospital as a staff psychologist and in private practice. (P-9) She testified that she first met Student in October 2000 after therapy had been recommended by the multi-disciplinary evaluation team at Franciscan Children’s Hospital. She explained that during the first visit, Student was extremely anxious, “one of the most anxious children she has seen in her office” and also presented with depressed mood. She noted that on that day, he was fearful that because of the meeting with her, he would not be able to finish his homework and would have to stay in for recess. (St. James) Ms. O’Malley testified that it was never a problem if Student was unable to complete his homework for the day. She explained in notes to Dr. St. James and Mother that he was never penalized for not completing his homework. (S-25; O’Malley)
48. Dr. St. James testified that she met with Student weekly for therapy until the end of the school year. She saw him about every other week in the fall of 2001. She did not see him in the summer because he is a “different child” then and the emotional difficulties “go way down” when he is not in school. She noted that Student made significant improvement during the last school year. (St. James)
49. Dr. St. James believes the Student’s emotional difficulties are in large part due to the frustration that he experiences at school. He has consistently reported stress and anxiety due to school-related factors, primarily with respect to homework. She testified that the homework is too hard for him and that he is not able to understand it and follow directions. She also stated that the stress and anxiety are caused by his difficulty getting along with other children in school and on the bus; and he has consistently denied difficulties with respect to other areas. She testified that she would describe Student as having a nonverbal learning disability with a generalized anxiety disorder and a depressive disorder not otherwise specified. She explained that children with nonverbal learning disabilities generally have difficulty with visual, spatial (i.e., nonverbal) aspects of testing, they generally have better verbal skills, they often have weaknesses in the areas of comprehension (across all domains) and mathematics, and they typically have deficits in social and emotional relationships. She testified that she would not characterize him as having a disability in the autistic spectrum and would not say that he has ADHD. She disagrees with a diagnosis of Aspergers Syndrome, in part because Student has cognitive limitations and a history of a language disorder, which are not found within a child with Aspergers Disorder. (St. James)
50. Dr. St. James testified that she did not believe that the IEPs at issue in this matter were appropriate for the Student. She explained that she based this opinion on her knowledge of Student, her review of records and her knowledge and experience working with children with disabilities similar to Student’s. She noted that she has reviewed three of Student’s IEPs, the evaluations of the multi-disciplinary team at Franciscan Children’s Hospital and Dr. Engelman’s report. She has not observed him in school or viewed Bellingham’s speech-language progress reports or the occupational therapy progress reports. (St. James)
51. Father testified that his son has often complained about Ms. Brooks being too critical or demanding. He also noted his concerns that his son often does not come home with a homework assignment or with the book he needs to do his homework. He expressed these concerns to Mr. Hassan on at least three occasions during the 2000-2001 school year. Father testified that he helps his son with his homework “pretty much every day”, he has reviewed “a lot” of the work his son brings home. He explained that homework is difficult for his son, and they often have to quit without finishing it. Father stated that he has noticed that his son’s handwriting skills have regressed since 1999, and he has lost some of the math skills that he had. Student used to be able to do multiplication and division with larger numbers. (Father)
52. Mother testified that during the 2000-2001 school year, there was a communication system set up between parents and school staff (P-24) that did not work well. She stated that some of the notations were “unneeded or could not be understood.” She noted that Student often forgot his books, and would sometimes be punished for this, although forgetting his books was a result of his disability. Mother testified that throughout the year, her son continued to not know or remember what he needed to take home in order to complete homework, and to not know how much time the homework was expected to take. These difficulties have continued for the past two years and into the present. (Mother)
53. Mother testified that she brought Student to see Sherri Miller (Feb. 01) who had been providing speech language services to Student since age three8 . Ms. Miller evaluated the Student and determined that he had difficulty with processing and staying on topic, and that he needed speech-language services (P-5). Ms. Miller told her that Student had difficulty paying attention, that he could not stay focused if there were noise distractions, that he needed repetition, structure and clear expectations. (Mother)
54. Ms. Miller testified that she evaluated the Student in February 2001. (P-5, Miller) On the basis of her observations of Student, her testing, and the social skills summer program she provided to him, she believes it important that Student receive speech language services. She found that there is significant scatter within his language skills so that to discontinue speech language services would be detrimental to him. She stated that he needs speech language services in order to compensate for his deficits and to have positive self-esteem and a positive approach to school. Her report recommends speech-language services for forty-five minutes, three times per week; a social skills group (in conjunction with the occupational therapist or counselor); a summer program to prevent regression “since his memory is his weakness” and a speech-language consult to the classroom teacher and assistant. She testified that Student has significant language processing difficulties (difficulty with temporal and spatial concepts). He has a hard time comprehending lengthy and complex information. His receptive vocabulary is at age level, and expressive vocabulary is higher. Expressively, he has word retrieval difficulties. His memory significantly gets in the way of completing tasks, especially when the language becomes complex; and his comprehension is compromised by his memory as well as his processing difficulties. She explained that these difficulties impact Student when he reads a short paragraph of between 5 and 10 lines. He can only remember about half of the information asked of him, including the main idea and details or inferences. She concluded that he has a communication disorder. (Miller)
55. Ms. Miller testified that during the testing, he was “pretty focused.” She has not spoken to Student’s speech language pathologist at school, or his classroom teacher or other school personnel since she has been working with Student and she has not seen any evaluation done by Bellingham since February 2001. She has not observed Student in the classroom. (Miller)
56. Ms. Morano testified that she had received a copy of the evaluations conducted by Ms. Miller (P-5, P-43). She explained that although she agreed with Miller’s assessment that Student had weaker areas (auditory memory and integrating information), she believed that all of the other results fell within the average range. (P-5) She added that auditory memory can be affected by attention and focus. Ms. Morano disagreed with Ms. Miller’s recommendation that Student receive pull out speech and language services three times a week because she believed that it would be detrimental for Student to be away from class that often. Ms. Morano also testified that she disagreed with Miller’s recommendation that Student be placed in a language based regular education classroom. (P-5, P-43) She explained that Student’s difficulty putting thoughts down on paper is not necessarily indicative of a language based disability. She further opined that while she had noticed that Student went off on tangents when interested in a topic, she did not observe Student having difficulty with pragmatic skills such as difficulty with intonation, paucity, turn taking, making eye contact, and conversing. Ms. Morano added that Student’s pragmatic skills appeared to be “fine.” (Morano)
57. Mother noted that she shared Ms. Miller’s report with Mr. Hassan who had no comment on it, and none of the substantive recommendations was incorporated into her son’s IEP. She explained that Bellingham took the position that speech-language services were not needed, so she privately placed her son in speech language therapy services from Ms. Miller and her associates. (Mother)
58. On March 19, 2001, Bellingham sent the Parents an invitation to an annual review Team meeting to be held on April 25, 2001. (S-12) The Team convened on April 25, 20019 . The Team meeting notes show that the Mother raised a concern regarding Mrs. Brooks giving the Student answers and yelling at him. Mrs. O’Malley and Mrs. Grant stated that they had never seen that happen. (S-12) Summer services were discussed and the Team recommended that Student attend Mr. Scanlon’s program for ½ hour of math and ½ hour of writing two times per week. There is no indication in the meeting notes that social concerns were discussed. (S-11)
59. Bellingham proposed an IEP dated May 8, 2001 (for the period 4/25/01 to 4/25/02). (S-2, P-33) The IEP describes Student’s type of disability as “health” and notes his inattention, self-monitoring and organizational difficulties. It explains that Student’s disability affects all curriculum areas; he has difficulty staying focused during instruction in science and social studies; his writing skills need editing and organization; his math skills make it difficult to progress to higher levels; he has a one-to-one aide who helps him to stay focused and on task and re-words instructions to aid in his understanding. The IEP describes the accommodations needed by Student as follows: preferential seating close to the teacher, assignment notebook checked daily by teacher and signed by parent, clarification of directions, tests may be read orally and a teacher assistant available to student for one-on-one assistance when needed. (S-2, P-33)
The services proposed through this IEP are as follows: consultation by the L.D. Specialist (mathematics) 1×15 minutes per week; consultation by the adjustment counselor 1×15 minutes per week; consultation by the occupational therapy staff 1×15 minutes per week; and consultation by the speech language pathologist 1×15 minutes per week. The IEP also proposed direct math services in the general education setting 5×45 minutes per week by the “SN Teacher” and academic support from the “T.A.” 5×45 minutes per day. Additionally the IEP proposed counseling with the adjustment counselor 1×45 minutes per week and Occupational Therapy with the O.T. staff 1×45 minutes per week. The IEP called for a summer program due to the possibility of substantial regression in math and peer socialization; and noted that Student “may benefit from written comprehension.” It provided for Student’s participation in the Summer Enrichment Program at South Elementary for 4 weeks and receipt of 2 hours of academic tutoring per week for 4 weeks. (S-2, P-33)
60. Mother testified that she drafted a proposed IEP (P-3) with the assistance of others; she submitted the IEP to Mr. Gentry at a Team meeting in October 2000; and she has made amendments to the IEP so that it reflects what she believes are Student’s current abilities and needs. She noted that at the meeting leading to the IEP dated May 14, 2001 (S-33), Mr. Gentry’s response to Mother was that she could ask for whatever she wanted, and that she was fortunate to have gotten so many services from Bellingham for a child with mild disabilities. (Mother)
61. The Mother testified that she rejected the May 8, 2001 IEP in full because the proposed services and accommodations have, in the past, not successfully addressed Student’s difficulties. Mother noted, in particular, her objection to the same aide being used with Student since, in Mother’s opinion, the aide is not sufficiently qualified to provide her son with the assistance he needs. She also stated her objection to the goals being the same as last year, rather than including more detail or being “higher goals.” (Mother)
62. Mother testified that the IEP first did not include a vision statement, even though she had offered a vision statement at the Team meeting (P-34); then a vision statement was included in the IEP but it was not her statement. (S-33) She noted her other concerns with the IEP as follows. She would like Student to catch up to grade level in math and in other academic areas. She would like him to be in school with children who have similar needs and abilities so he is able to get a sense of succeeding. She would like him to be provided with academics and teaching methodologies that are at his level as she believes that currently, the work is too difficult for him. (Mother)
63. Stanford Achievement test scores from 6/01 (near the end of his 4 th grade) reflect performance standard level 1 for all of the reading, mathematics and language sub-tests. Performance standard level 1 is generally described by the test as “indicates little or no mastery of fundamental knowledge and skills.” (P-48)
64. Bellingham proposed an IEP amendment dated June 14, 2001 regarding a summer program (4/25/01 to 4/25/02). (P-45) Under the heading of what changes will be made to the May 8 th IEP, this IEP amendment states: “to increase summer tutoring.” The IEP amendment explains that Student would benefit from 2 hours of math tutoring and 1 hour of written language for 4 weeks, and that he will participate in the Summer Enrichment Program at South Elementary School for 4 weeks. Mother explained that she objected to the offered summer program because it did not include sufficient math services. She understood that Bellingham was supposed to provide an IEP amendment with respect to the summer program. She testified that she sought assistance from Mr. Gentry regarding this summer program, but he did not return her calls. She explained that the amendment to the IEP (P-45) was mailed to her on August 1, 2001, and that she did not accept this amendment. (Mother)
65. Thomas Scanlon testified that he is currently a third grade teacher in Bellingham and was Student’s third grade social studies teacher. He has taught third, fourth, and fifth grades in Bellingham for the past thirty-seven years. He further testified that he oversaw Bellingham’s summer program. He was familiar with Student through the summer program that Student attended for several years and through teaching Student social studies in third grade. He testified that he held a spot for Student in the summer program in 2001 and that Student attended the program for two weeks out of a possible twenty days. He stated that he did not work directly with Student, nor did he have the opportunity to observe Student during the summer program. However, Mr. Scanlon noted that Parents did not complain to him about the program. He did not become aware that the Student had not completed Bellingham’s summer program until December 2001. (Scanlon)
66. Ms. Connors testified that at a Team meeting in June 2001, a summer program was discussed for Student. The Team offered math services to prevent regression and concluded that he would benefit from the program at Stall Brook School. There was no discussion of Sherri Miller’s summer program although Parents mentioned this program. (Connors).
67. Mother testified that she believed her son needed a structured summer program where he could be taught different strategies for social skills and be with children who were his age. She explained that Bellingham’s summer program that her son attended also did not fit his needs with respect to giving him the requisite tutoring, especially in math. Mother testified that on the advice of her son’s psychiatrist, she took her son out of Bellingham’s summer program after about four days because his self-esteem was suffering so badly. She testified that he was being verbally abused daily and coming home in “absolute tears.” Mother explained that as a result, she placed her son into a six-week summer program operated by Sherri Miller of Speech Language Resources in 2001. She paid $775 for this summer program. (P-44; Mother)
68. Ms. Miller testified that she worked with Student in the summer of 2001 when he attended a social skills group for an hour and a half, twice a week, for six weeks with seven or eight other boys. The goal was to teach Student how to make friends. She noted that Student’s weakness is understanding what goes into a social situation. Ms. Miller testified that he needs to learn how to observe the situation and identify whether an action is appropriate or inappropriate. She explained that he was a motivated member of the group, stating that he really wanted to make friends and indicating that he was motivated by other children having the same language issues as he had. She testified that Student had significant difficulty understanding basic social skills. She noted that he also repeatedly showed his frustration with school, becoming angry several times during the group when he was thinking about school and indicated that he felt very comfortable in a group where he was understood and where nobody yelled at him. She noted that Student indicated that his frustration with school included other children ridiculing him and not wanting to play with him, and his feeling that he doesn’t ever make friends. (Miller)
69. Ms. Miller testified that Student had difficulty with attention and focus during the summer social skills group, and he had significant difficulty following the rules. She stated that he would likely have the same difficulties in a classroom, although in a small classroom, a teacher or aide would be able to use techniques such as gestures to bring his attention back to the task. Her report indicates that at the end of the six week summer program, Student showed improved self-esteem with the friends that he made and improved social skills, but needed continued reinforcement in the school and other social situations. Her report recommends that he continue to be part of a social skills group. (P-43)
70. Father testified that Student reported to him that on the school bus in January 2001, two other children threatened him by saying that they would burn down his house. Student was “petrified” and could not sleep at night. Student also reported that near the beginning of this school year, another child told him not to interrupt and slapped him in the face. Father stated that he reported these incidents to Mr. Hassan who said he would look into them. Mr. Hassan testified that he was aware of the January 2001 incident. He discussed the incident with the families of the children involved. He was not aware that Student remained fearful for a while. (Father, Hassan)
71. Father also noted that his son reported to him other, more minor incidents, such as other children pushing his son or criticizing his haircut. He explained that his son is very sensitive to these incidents, and they affect him. Father noted that although his son talks about having friends, he does not appear to have any. The one time during 2000-2001 when Father recalls that a friend came over to his son’s house to play, the friend played with his son’s brother when his son went to his room by himself and closed the door. Father did not recall any invitations to play at another child’s house during these two years. Father stated that he has not observed his son at school, except once on the playground. (Father)
72. Robert Hassan testified that has been the principal at the Stall Brook Elementary School for four years. He is not Special Education certified; however, he has trained administrators with regard to implementation of IEPs. He developed an IEP dated September 17, 2001 (for the period 9/17/01 to 6/15/02) (P-36). Mr. Hassan stated that although he personally did not feel that the proposed IEP was inadequate, he did believe that the parties were at a “stalemate.” He explained that this is why he wrote the IEP (P-36), despite the fact that he did not usually do so. He noted that he designed a program to address the Student’s needs at the time and consulted with Team members as to whether it was reasonable. Team members confirmed that Mr. Hassan’s proposal was reasonable. (Hassan) Mother testified that she had two meetings with Mr. Hassan, September 12 and 17, 2001 and at the second meeting, they discussed a draft IEP (P-36).
73. With respect to progress in the curriculum affected by Student’s disabilities, the IEP lists writing skills, social skills, organizational skills, attention span, ability to maintain focus, and math as a major area of concern. With respect to specially designed instruction, the IEP lists “small group instruction/technology assisted” and “small group math/language arts/specialized reading.” Modifications listed in the IEP are as follows: curriculum content areas modified when/where necessary, teacher’s aide, computer technology, homework communication, record maintenance, and program review after 30 school days if necessary or upon parental request. The IEP lists special education services as follows: Teacher assisted learning, small group, teacher’s aide (program aide); OT – SI and keyboarding skills; Computer training – special education aide; Counseling – group/individual 45 minutes per week; Math – small group integrated with special education staff and program aide; and Coordination – (next two words are illegible) (P-36)
74. Mr. Hassan stated that he personally was not proud of the IEP as it was “quick and dirty.” (Hassan) Mother testified that the proposed IEP included a number of new and helpful components. The draft listed small group technology and addressed goals pertaining to writing skills and organization skills. However, the draft did not explain how these were to be addressed and did not include Parents’ vision statement. Mother noted that she decided that she would accept part and reject part of the IEP (P-59), but Mr. Hassan told her that he would not implement only a part of the IEP. It had to be “all or nothing”. Mother testified that what she believes a reading program for the full year and a social group should be added to the IEP. She does not think that Student should not be taken out of science to attend the reading program. (Mother)
75. Marilyn Engelman, Ph.D., testified that she is an educational psychologist in private practice; and she performs evaluations for students, works on school training and placement and does private therapeutic school placement. She testified that she has a Masters Degree in special education and she received her Ph.D. in the area of special education, educational psychology and higher education. She noted that her experience includes employment as a learning center teacher for seven years, coordinator of special education for three years and acting director of special education. She has also taught education courses at a college and two universities. Dr. Engelman testified that she is familiar with the Massachusetts curriculum frameworks and, through Mr. Hassan, has learned about Bellingham’s curriculum for Student. (Engelman)
76. Dr. Engelman testified that she first met Student in September 2001. Prior to that, she met several times with Parents and reviewed various evaluations and other records regarding Student evaluations from Franciscan Children’s Hospital and the IEPs which are the subject of this dispute (S-22, S-42, S-45, P-33, P-36). She explained that she tested Student on September 6, 2001 as reflected in her written report. (P-38) She testified that the testing took two hours and the Student needed frequent breaks and refocusing. She further testified that the Student was taking Adderall which was a recent change. She met with Mr. Hassan and three teachers for several hours on September 24, 2001. She has not reviewed progress reports from Bellingham, and has not observed Student in class. (Engelman)
77. She testified that she believes due to Student’s significantly higher verbal (as compared to performance) test scores, his low math scores, difficulty with answering open-ended questions, difficulty with reading social cues, and poor performance in organization that he has a nonverbal learning disability. She noted that Student is further compromised by his difficulty in understanding what is expected when a lot of material is presented at once. She explained that children with nonverbal learning disabilities do not have the executive functioning skills needed to succeed, and they need to be shown, and have things modeled or explained over and over again. Even a simple direction may need to be broken down into five or six steps in order for Student to understand it.
78. Dr. Engelman testified more specifically with respect to what she believes to be necessary to meet Student’s needs:
1. Student’s classroom needs to have not more than 12 to 15 children.10 The student/teacher ratio needs to be small and these services need to be provided for all of his classes throughout the day. This can be an inclusion class with a regular education teacher and a special education aide. She explained that in a large classroom without support, a teacher would not have the time to consistently help Student by going over material and breaking it down step by step. A small teacher/student ratio is needed so that sufficient individual attention can be given. Student requires a lot of time as he is frequently off task.
2. Language based, highly structured, multi-sensory teaching techniques should be used throughout the day.
3. An aide needs to be provided who can interpret and model the appropriate social interactions and classroom demands, and who can help Student increase his sustained attention during academic tasks. The aide should have specialized training and expertise to work with children with nonverbal learning disabilities (qualifications that exceed those of an instructional assistant) and should receive direct supervision from a consultant with appropriate expertise regarding Student’s disabilities.
4. Because math is a specific weakness, he needs specialized remedial math instruction, either in an inclusion math class or in a pull-out, depending on the unit that is being worked on.
5. Student will continue to need occupational therapy services, a pragmatics language group (as well as speech-language for socialization with lunch group or “lunch bunch”), a daily small group reading comprehension instruction throughout the year, direct instruction in strategies to improve his reading comprehension, and direct instruction in the writing process.
6. Student is exhibiting low self-esteem, and he may need on-going counseling.
7. Computer instruction is needed on an on-going basis.
8. All teachers and therapists need to work together in a collaborative milieu, meeting as a team on a regular basis (several times per week). There needs to be close communication between school and home. Consistency and training of staff are key to Student’s success.
79. Dr. Engelman testified that based on her review of records from a year or two before her evaluation, she does not believe that Student has made significant progress and growth during the time that he has been in the Bellingham Public Schools, but that he has stayed at about the same level in the areas tested by formal assessments.
80. She testified that there was discrepancy among the reading test scores reported by the various evaluators. She found that the Student did best when “he was given a small praragraph of maybe two, three, four sentences and asked a question or fill in a blank or multiple choice, which would account for the passage comprehension score of 4.1.” She further said that when he reads a series of 15 passages and answers multiple questions afterward it is very overwhelming for him. He cannot maintain kor sustain that attention for a 35 minute time test versus reading a small piece into the question. So, he does better on those tests. “He “needed to read out loud in order to sustain his attention.” “If he has to do sustained reading or even read a chapter, he has difficulty sustaining his attention, answering the open-ended questions. Or if you give him too many pages at once, he becomes overwhelmed. “She explained that Student has difficulty sustaining his attention when reading a chapter or too many pages at once. She believes that Student does best when given a short paragraph (two to four sentences) and is asked a question.
81. Dr. Engelman testified that IEPs proposed by the school (specifically, S-22, S-42, S-45, P-33, P-36) do not incorporate all of the services recommended by her in her written report11 (P-38) and in general, these IEPs are not sufficiently extensive to meet Student’s needs. However, Dr. Engelman also testified in support of various aspects of the IEPs. Dr. Engelman’s report generally observes that many of Bellingham’s proposed educational components are appropriate for Student, including an inclusion model for language arts, a pull-out math program, computer instruction, the availability of an adjustment counselor and the use of aides. (P-38; Engelman)
82. Dr. Engelman noted specifically with respect to the IEP of May 8, 2001 (S-2, P-33) that it does not include the following recommendations that are included in her written report:
1. Student should be placed in a small classroom (no more than 15 children) for all subjects;
2. His teachers should be trained to understand learning disabilities;
3. There should be an aide with Student throughout most of the day; and
4. The aide should be trained to work with children with non-verbal learning disabilities and should understand a variety of reading and math programs.
She testified in support of various aspects of the May 8, 2001 IEP. She noted that it includes small group math instruction, although in a regular education classroom; counseling is to be provided Student along with consultation by the counselor; occupational therapy is offered. Dr. Engelman agreed that the accommodations described in the IEP would assist Student in making effective progress. Some of the accommodations include preferential seating close to the teacher, assignment notebook checked daily by teacher, clarification of instructions, and tests read orally. She also noted that Student is provided with a teacher assistant. (Engelman)
83. Dr. Engelman testified specifically with respect to the June 14, 2001 IEP (S-45), noting that it refers to an aide but does not address the training of the aide, and does not propose services to address Student’s difficulties with his peers and social issues. She noted, however, that Student had counseling available to him as a regular education service. (Engelman)
84. Dr. Engelman testified specifically with respect to the IEP prepared by Mr. Hassan in September 2001 (P-36). She stated that this draft IEP does not include the following recommendations that are included in her written report:
1. The proposed reading program (Soar to Success) appears to be an 18-week program, which would therefore not be intense enough to address Student’s needs;
2. There is no reference to a small classroom (no more than 15 children) for all subjects;
3. There is no reference to an aide who is trained to work with Student; and
4. The IEP lacks specifics as to how it is to be implemented.
85. Mr. Hassan testified that he has had many conversations with Parents in which they expressed their concerns about the educational progress Student was making and the services that Student was receiving. He stated that Parents shared with him their concern that Ms. Brooks was not qualified because she was not communicating effectively with them and that she would complete Student’s work for him. He further testified that during a meeting with Mother, he indicated that Ms. Brooks may not be the right person for Student. He explained that when he made this comment to Parent, he was considering replacing Ms. Brooks with a Teacher’s Aide because the approach employed by a Teacher’s Aide may be better for Student. (P-50) However, Mr. Hassan did testify that this consideration had nothing to do with Ms. Brook’s competency. (Hassan)
86. Dr. St. James’ letter to Mr. Gossels, dated September 17, 2001, further describes her concerns regarding the proposed IEP for the period 9/17/01 to 6/15/02. (P-42) Although she notes several positive aspects to this IEP, such as the recognition of Student’s disabilities and the goals/objectives for self-esteem and social skills, she does not believe Student can make effective progress in a general education classroom, as is proposed in the IEP. She emphasizes that Student needs an environment with fewer students and specialized instruction, both from an academic and a social/emotional perspective. She supports the Franciscan Children’s Hospital recommendation for a classroom of no more than 15 children in which all academic subjects are co-taught with a special education teacher. Her letter was not provided to Bellingham. (St. James)
FINDINGS AND CONCLUSIONS
Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA)12 and the state special education statute.13 As such, he is entitled to a free, appropriate public education which is reasonably calculated to assure his maximum possible educational development in the least restrictive environment consistent with that goal.14 Neither his status nor his entitlement is in dispute.
The principal issue presented is whether the programming and specialized services embodied in three IEPs are consistent with this legal standard and if not whether the Student is entitled to compensatory services for any of the time periods at issue.
2000-2001 IEP dated 4/12/00
There was no evidence of any procedural deficiencies in the convening of the Team or drafting of the IEP. The Mother rejected the IEP proposed on April 12, 2000, and the Team was reconvened to review the rejected IEP promptly, on May 4, 2000. (S-44, S-43) A summer program was also discussed at that time. Although there was some dispute regarding the necessity of a social component to the summer program, Bellingham agreed to provide said component. The Mother testified that she never received an IEP amendment for the summer program, but the Student attended the summer program. Therefore, despite the Mother’s claim that she did not receive the amendment, the Student received the services. A failure to provide an amended IEP in that instance would be a de minimis violation and there is no basis for any relief based upon those facts.
Although Mother testified that the services proposed for the Student at the April 12, 2000 and May 4, 2000 meetings were insufficient to meet the Student’s needs, there is no evidence to suggest that the Student required any services other than those which were proposed. The Student’s grades were mostly in the C range with several A’s and B’s and one D which improved to a C- the following quarter. (S-41) There were no updated school evaluations done and the Parents did not request any or present the Team with any evaluations which showed that the Student required additional services. Although Parents are experts when it comes to knowing their child, they are not experts in identifying special needs and recommending services. Although their concerns regarding their son’s education were genuine, they did not provide any evidence that the Student required services other than those which were recommended by Bellingham staff who had worked with the Student and proposed by the Team. Although Mother testified that one of her reasons for rejecting the IEP was because the aide’s qualifications were insufficient she provided no evidence that she had raised a concern about the aide prior to rejecting this IEP.
The Parents did not provide evidence upon which I could find that the proposed IEP was not appropriate to meet the Student’s needs. Therefore, I find that the 2000-2001 IEP, dated 4/12/00 was reasonably calculated to maximize the Student’s potential in the least restrictive environment. I find no basis for awarding compensatory services for the 2000-2001 school year.
2001-2002 IEP dated 5/8/01
It does not appear as though there were any irregularities in the Team process during this IEP period. Although Mother testified that she provided copies of the Franciscan Children’s Hospital (hereafter, “FCH”) evaluations to Bellingham at the end of August, it appears that she was mistaken about the date. The Student was not evaluated until August 14 and 15 and the evaluator’s conference (S-31) took place on August 18. Evidently, the reports were not written until after the evaluation conference, as they all contain virtually identical recommendations. Further, there was credible evidence that at least some of the evaluations were not received by Bellingham as late as the first scheduled Team meeting, October 11, 2000. (S-30) The Team was then reconvened nine days later to consider all of FCH evaluations. Therefore, as the evaluation reports were not available for consideration prior to October 11, 2000, the Team was convened in a timely manner in accordance with 603 CMR 28.04(5)(f). “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.” Id . After receiving all of the evaluative information the Team met within the mandated ten school days.
There was conflicting evidence regarding the Student’s diagnoses throughout the Hearing. However, for the most part, the identified areas of Student’s needs are not disputed. The Student has attentional issues which interfere with his ability to learn. The Parents believe that the attentional issues are caused by Aspergers Syndrome or a non-verbal learning disability. Bellingham maintains that the attentional issues are caused by Attention Deficit Disorder. It is not necessary (or even possible from the evidence presented) to determine which diagnoses are correct. It is, however, clear that the Student had several areas of need which the IEP sought to address. The evidence shows that the Student has difficulty maintaining attention, self-monitoring, and has organizational difficulties. He has deficits in math skills as evidenced by his below grade level performance in that subject and the various testing results. His writing skills need editing and organization. (P-33, S-2)
The evidence shows that the Student’s areas of weakness were identified and were addressed effectively in the classroom. Ms. O’Malley testified she had 21 students, Student’s 1:1 aide, and the speech language pathologist (2-3 times per week) in her classroom. She provided the structure which the Student requires in her lessons and used multi-sensory teaching approaches as recommended for the Student. She also taught writing to the Student by using drafts as Dr. Engelman testified was appropriate for teaching writing. His aide, Ms. Brooks, provided additional support for the Student’s attentional issues by cueing him and reminding him to focus. She also assisted the Student in organizing his materials and helping him to prepare his books to take home. Both Ms. O’Malley and Ms. Brooks would re-explain material if the Student did not understand. Ms. Brooks was able to reinforce what Ms. O’Malley said or to re-explain directions to the Student. Ms. O’Malley testified to providing oversight to Ms. Brooks and assisting her in understanding how to help the Student. It was quite evident by Ms. O’Malley’s testimony that she focused on the Student a great deal of the time and she was constantly monitoring his attention and understanding. She clearly had an understanding of the Student’s needs and how to accommodate them. (O’Malley) Her testimony regarding the Student’s on grade level reading was credible because she worked with the Student every day and was able to monitor his progress and grade level throughout the year. Her conclusions that the Student required a multi-sensory approach, rephrasing, additional time to complete tasks, frequent checking for understanding and a 1:1 aide are in keeping with the needs which Dr. Engelman testified the Student had. Although her classroom had more students than was recommended by the FCH evaluators, her testimony showed that she was well aware of the Student’s needs and that she monitored his attention and comprehension. She also provided oversight to Ms. Brooks and assisted her in assisting the Student. (O’Malley)
The Parties agree that math is an area of particular need for the Student. The IEP called for direct math services in the general education setting with the special needs teacher 5×45 minutes per day. Ms. Grant testified that she is certified in special education and elementary education and she taught the Student in a class with 12 other students and two aides (Grant). The FCH evaluators all recommended that the Student receive instruction with 12 students in a regular education, co-taught setting. Ms. Grant testified to using modifications which Dr. Engelman testified were appropriate, including providing hands-on instruction; repeating directions; re-teaching lessons; using “touch math”; reviewing, re-directing, re-focussing. (Grant; Engelman) Ms. Grant was also aware of the Student’s attentional issues and reviewed and re-taught topics when the Student’s attention was an issue. She credibly testified that the Student made progress in the curriculum throughout the year and the curriculum was the same that all fourth graders learned with modifications. (Grant)
Ms. Grant’s class provided the Student with small group instruction with a special education teacher and two aides because math was a particular area of weakness for him. Ms. Grant’s math class was appropriate for the Student.
The Parents contend that the Team did not “accept” any of the FCH recommendations for additional services. A review of the evidence shows that the Team considered the evaluations and determined that they were already offering some of the recommended services and they discredited some of the FCH findings and recommendations. There was dispute over the Student’s need for direct services from the speech language pathologist and dispute as to whether speech language services were provided in accordance with the last accepted IEP. Ms. Morano credibly testified that she continued to provide the Student with direct speech and language services in the classroom during all periods relevant to this Hearing. (Morano) The last accepted IEP provided for direct services in a pull-out manner. However, the IEP also states that, “The student may receive direct services within the classroom setting when it is educationally appropriate to do so.” (S-54, pg. 13 of 14) Ms. Connors testified that the Team concluded that the Student should spend more time in the classroom and Ms. Morano agreed to work with the Student in the classroom. (Connors) Since the IEP provided that the Student could receive direct services in the classroom when it was educationally appropriate and the Team deemed it appropriate, Ms. Morano could provide said services in the classroom in keeping with the provisions of the last accepted IEP. (S-54)
The Team reviewed the findings and recommendations of Sherri Miller and Sara Poor, but did not concur with them. Ms. Poor’s conclusions must be looked at critically for several reasons. First, she spent limited time (1.5 hours) with the Student and her report did not indicate that she had any first hand knowledge of the Student’s school performance. (S-38) Secondly, she reported that Student’s expressive language skills were age-appropriate, when in fact they were at an age equivalency of 11.7 and Student was 10.1 years old. The score, according to her own results, was actually above what would be expected of a child Student’s age. She also mentioned that the Student used “more advanced language than expected for a child his age.” Despite her findings, she recommended that the Student receive speech language services three times per week. Ms. Connors and Ms. Morano both had extensive experience providing the Student with speech language services. They both testified that the Student did not require speech language services because his performance is adequate in that area. I find that the combined experience of Ms. Connors and Ms. Morano in working with the Student makes their conclusions more reliable than Ms. Poor’s who knew very little about the Student or how he functions in the classroom. I gave little weight to Ms. Miller’s recommendations for increased speech language services because she also lacked first hand knowledge of the Student’s school functioning and had limited exposure to the Student. Therefore, I do not find anything inappropriate in the Team’s recommendation of eliminating speech language services
Ms. Connors credibly testified that the Mother raised her concern about the Student hating school and having low self-esteem for the first time at the October 2000 Team meeting. Other Bellingham personnel testified that they had never seen the Student exhibit poor self-esteem and observed him to be happy in school. (Grant, Morano, O’Malley) Mr. Gentry testified that he recommended counseling during the October 2000 Team meeting and the Mother stated that the family was addressing that issue. (Gentry) Despite Bellingham’s belief that the Student was happy and well-adjusted at school, they later proposed the addition of counseling services provided by the adjustment counselor in the IEP in response to the concern raised by Mother, Dr. St. James and the FCH evaluators. The Parents rejected the IEP which proposed counseling in full. (S-2)
Dr. St. James testified that the Student was “one of the most anxious children she has seen in her office” and that he presented with depressed mood. None of the other evaluators or any of the Student’s direct service providers described him in a similar manner. Ms. O’Malley described the Student as being happy in the classroom and testified regarding his willingness to make oral presentations and participate in the classroom. (O’Malley) Dr. St. James admitted that she never observed the Student in school or discussed his day to day presentation with anybody from Bellingham. She is the only evaluator who believed that the Student suffered from a depressive disorder. Despite her concerns about the Student’s presentation, she never provided any written report to Bellingham and she did not recommend school-based counseling. Aside some communication regarding Ms. Connors’ homework policy, she did not confer with Bellingham regarding ways to ease the Student’s perceived school-related anxiety. Because Dr. St. James had very limited direct knowledge of the Student’s school performance and presentation, her testimony is given little weight.
Similarly, the psychosocial assessment by Dr. Cowen and Ms. Livingston of FCH is given little weight. The evaluators describe the Student as a “constricted child struggling to contain and internally withhold his emotions.” This is in marked contrast to their Behavioral Observations which state that the Student was “engageable,…with a charming smile.” Additionally, “[he] appeared to interact with others, including his parents, grandmother, and this examiner, in a comfortable, age-appropriate manner. He separated easily from his parents to follow this examiner to the testing room. [Student] was polite and cooperative with the demands of the assessment tasks, appearing motivated to perform well….[He] seemed to take great pride in his verbal abilities, as he enjoyed telling stories and displaying his creativity.” Based upon the evaluator’s own observations, the Student did not appear to be a “constricted child struggling to contain and internally withhold his emotions”. The Bellingham staff did not describe the child in that manner either. The only basis for said conclusions could be the diagnostic interview with the Parents and the Child Behavior Checklist completed by the Parents. Neither source provides information regarding the Student’s classroom presentation or more importantly, upon the Student’s own perceptions and feelings regarding school.
Although Dr. Engelman’s evaluation had not been done at the time this IEP was proposed nor was her report written, it is notable that she testified that she did not disagree with anything proposed in the IEP other than the necessary qualifications of the Student’s aide. (Engelman) In fact, the IEP contained services which the Parents believed would help the child, such as counseling. The Parents chose to reject the entire IEP instead of rejecting only the portions with which they disagreed. Consequently, some services, such as counseling, were not provided during a time when the Parents believed it was necessary. The Parents cannot later seek compensatory services in an area where services were proposed and rejected.
I find that the services proposed by the May 8, 2001 IEP were reasonably calculated to maximize the Student’s educational potential in the least restrictive environment and find no basis for awarding compensatory services.
2001-2002 IEP dated September 17, 2001
There is no question that the appropriate Team meeting procedures were not followed in developing this IEP. Mr. Hassan testified that he developed the September 2001 IEP in an attempt to resolve the differences between the Parents and the Bellingham staff regarding appropriate services. He and the Mother both testified that they met on two occasions and discussed the draft IEP. (Mother, Hassan) Although the mandated Team was not assembled, Mr. Hassan conferred with Mother and some Team members. The Mother presumptively agreed to the process as she participated and did not testify that she objected to the manner in which the IEP was drafted and proposed. Parents’ response to the IEP includes notes which reference an IEP meeting held on September 14, 2001 attended by Mr. Hassan, Mother, Mrs. Webber, special education teacher, and Mr. Delaney, Social Studies Teacher. (P-59)
The Mother testified that she objected to the absence of her vision statement from the IEP, found some of the proposed components “new and helpful” and believed the Student requires a reading program for the entire year and a social group. (Mother) I find that the vision statement should be included in the IEP but that its omission did not affect the services proposed for the Student. The IEP also contained some areas which were blank except for the words “see file.” The IEP should have been presented to the Parents in a complete form. Each of the aforementioned shortcomings could be addressed by simply amending the IEP to reflect all of the required information and do not make the offered services inappropriate or form the basis for relief.
At the time that Mr. Hassan drafted the report, there was no persuasive evidence to suggest that the Student required a specialized reading program. Although Priscilla Pano’s report indicated that the Student’s reading comprehension level was below grade level, her report indicated that Student required additional time to reread a passage to “achieve adequate comprehension” and concluded that that accommodation could not be provided. There was not any testimony nor documentary evidence that the Student could not be provided with additional time to reread passages for comprehension. The IEP drafted by Mr. Hassan provided for a Title I program to improve reading comprehension. It does not mention providing additional time for the Student to complete reading assignments. Although Dr. Engelman had not visited the Student’s school or written a report prior to the drafting of the IEP, she testified that she believed the Student required a program to address his reading comprehension skills. Her testing results showed that the Student scored in the low average range in the area of reading comprehension. She testified that the Parents told her the Student could understand “bits and pieces of [text], but would lose the main idea.” The Parents’ report of the Student’s reading comprehension skills was the basis for her recommendation that the Student required a reading comprehension program. Ms. O’Malley testified that the Student was reading on grade level. Since the evidence is not conclusive regarding the requirement of a reading comprehension program, the Student’s reading comprehension should be assessed at the beginning of the next school year so that the Team can determine whether he is comprehending text adequately and whether he requires a specialized reading comprehension program. If such a program is deemed necessary, it should not be provided to the Student during his science class or during any other academic subject as was proposed by the most recent IEP.
Although Dr. Engelman testified that she was not able to observe the Student in class, the evidence does not support a conclusion that she was prevented from observing the Student. She spent her time at the school speaking to Mr. Hassan and other service providers about the services proposed for the Student. She did not specifically inform Mr. Hassan that she wanted to observe the Student while she was at the school, but allowed him to determine how her time at the school would be spent.
Dr. Engelman made recommendations regarding an appropriate classroom size for the Student despite never observing his classroom performance and not speaking to his direct service providers. She relied upon prior evaluator’s recommendations and her understanding of how students with profiles similar to Student’s learn. (Engelman) She testified about the requisite qualifications for Student’s aide, but did not have any knowledge of the Ms. Brooks’ qualifications. I am not convinced that Ms. Brooks was not sufficiently qualified to act as the Student’s aide. Although she did not have a college degree, she had been a classroom aide for students with special needs for over 20 years. Dr. Engelman testified that the Student’s aide should have taken some college courses and should have been provided with in-service training regarding the Student’s particular needs. There was no evidence presented that Ms. Brooks did not meet those qualifications. The evidence was somewhat unclear as to what Ms. Brooks’ actual training included. However, she was clearly an experienced aide who worked under the constant direct supervision of certified educators who provided her with guidance and supervision. Parents had not complained about Ms. Brooks prior to the 2000-2001 school year. Dr. Engelman’s rationale for requiring a trained aide was that an aide without special training would not know how to appropriately assist the Student. That argument is not convincing because Ms. O’Malley testified that she provided oversight to Ms. Brooks and assisted her in determining how to appropriately assist the Student. Although, I do not find that the assignment of Ms. Brooks was inappropriate, the Team may wish to consider whether it would be appropriate to assign a different aide to the Student in the future since the Parents have now made their dissatisfaction with her so clear. It would also be appropriate to determine whether an aide remains an appropriate accommodation as the Student continues from grade to grade.
The proposal that the Student receive language arts instruction in a co-taught classroom with a teaching assistant seems appropriate based upon the evidence. Group/individual counseling is an appropriate recommendation due to the concerns raised by the Parents regarding the Student’s self-esteem and social skills. The proposal for a review of the program in thirty days was appropriate.
There was a good deal of testimony regarding the Student’s attention. Dr. Engelman testified that the Student’s attention was a major issue for him. The evidence shows that the Student had been on and off of medication for his attention at various times throughout his schooling and the Bellingham staff clearly believed that being off of medication negatively impacted his performance. It appears that it would be appropriate for the Parents to consider whether medication would be beneficial for the Student’s attention in conjunction with their healthcare provider.
Although the IEP was drafted in an unconventional manner, the Mother participated in the process and did not object to the manner in which it was drafted. Also, there were areas of the IEP that were not completed and they should have been filled in before the IEP was presented to the Parents. However, I find that the services proposed by the September 17, 2001 IEP were reasonably calculated to maximize the Student’s potential in the least restrictive environment. I do not find any basis for ordering the Student to receive compensatory services.
Reimbursement for summer 2001 placement at Sherri Miller’s Speech Language Resources
The Parents seek reimbursement for the unilateral placement of the Student at Speech Language Resources that they made during the summer of 2001. The Mother had rejected the May 8, 2001 IEP which provided for a summer enrichment program at South Elementary for 4 weeks and included two hours of academic tutoring per week for four weeks. Subsequently, Bellingham proposed an IEP amendment dated June 14, 2001 which proposed increasing summer tutoring. (P-45) Mr. Scanlon testified that the Student attended the program at South Elementary School for two weeks out of twenty days and that the Parents did not complain about the program. Mother testified that she rejected the amended IEP because it did not provide sufficient math services and because she did not receive the amendment until August 1, 2001 which was too late for her son to take advantage of the proposed services. (Mother) There was no evidence presented that the Mother had requested additional services in the area of social or pragmatic skills nor any evidence that the Team had recommended such services.
The Federal Regulations provide guidance on the reimbursement issue. See 34 CFR 300.403 Placement of children by parents if FAPE is at issue . According to the aformentioned,
If the parents of a child with a disability…enroll the child in a private preschool,
elementary, or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made FAPE available to the child in a timely matter prior to that enrollment and that the private placement is appropriate. Putting aside the issue of appropriateness, the regulation further provides in § (d) Limitation on Reimbursement and states, The cost of reimbursement described in paragraph (c) of this section may be reduced or denied-
1. If-
i. At the most recent IEP meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP team that they were rejecting the placement proposed by the public agency to provide FAPE to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or
ii. At least ten (10) business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in paragraph (d)(1)(I) of this section;
It is clear from Mr. Scanlon’s unrefuted testimony that the Parents never notified him of any concerns regarding the program or of an intention to remove the Student from the South program. The Parents did not comply with §300.403. Therefore, the amount of reimbursement sought may be reduced or denied.
In determining whether to reduce or deny reimbursement, I review the facts surrounding the Parents decision to place the Student at Speech Language Resources. First, Mother testified that she did not receive the IEP amendment until August and therefore could not act upon it. This argument is not persuasive because the Student did attend part of the proposed program which shows that the Parent was aware of the program and able to take advantage of the services offered. Second, the Parent never complained to Mr. Scanlon, the director of the program, regarding the services provided or the Student’s complaint that peers were harassing him.
In addition to the above, the appropriateness of the services provided to the Student by
Speech Language Resources is questionable. The Mother testified that she rejected the amended IEP dated June 14, 2001, because it did not include sufficient math services. The program that she placed the Student in, Speech Language Resources, did not provide the Student with any math services. Therefore, it did not even provide services in the area which the Mother alleged made Bellingham’s IEP inappropriate.
Finding no basis upon which to award reimbursement, I hereby deny Parent’s request for reimbursement of the out-of-pocket expenses associated with placement at Speech Language Resources in the summer of 2001.
ORDER
I find that all three of the I.E.P.s before me were reasonably calculated to maximize the Student’s potential in the least restrictive environment and find no basis for awarding compensatory education. I do not find any basis for ordering reimbursement for the summer 2001 services at Speech Language Resources. Bellingham shall reassess the Student’s reading comprehension to determine whether he requires remediation in the area of reading comprehension.
By the Hearing Officer,
Catherine M. Putney-Yaceshyn
Dated: July 10, 2002
1
See attached Appendix
2
A week pertains to a five day cycle.
3
The Student informed the Speech Language Pathologist at FCH that “he liked school, but that it was not always fun” on August 15, 2000.
4
The evaluator gave the Student a “visual and verbal prompt and asked [him] to write a paragraph.” (S-39)
5
1. placement in a regular education class with no more than 15 children and at least two teacher, including a special education teacher and a regular education teacher and using a multi-sensory, systematic language; 2. speech-language services once weekly individually and twice weekly in a small group; 3.occupational therapy twice weekly individually, once weekly in a small group and weekly consultation; 4. individual therapy with a family component; 5. structured, supervised peer group activities; 6. consultation with a physician around psychopharmacological management
6
Ms. Brooks was the Student’s aide from second grade through all times relevant to this matter.
7
Ms. O’Malley noted that the aide is helpful because in a class of even twelve children, it is difficult for the teacher to always be with a particular child, and the aide helps to reinforce what the teacher said and helps to get the child started.
8
Ms. Miller testified that she first met Student when he was three years old when he came to her office to work with one of the therapists in Ms. Milller’s office, Linda Zakar, twice per week until he reached the age of five (1996-1997) and was discharged to the public school for continued therapy. She explained that she often participated in Student’s therapy in order to see how the therapy was going and to supervise the treating therapist and that Student was next seen in February 2001 when Ms. Miller and her associate, Diane Jessop, evaluated him.
9
The record contains Team meeting notes which appear to have been taken in connection with the April 25, 2001 Team meeting. However, they are dated March 24, 2001. (S-11)
10
Her report calls for a minimum of 12 but testimony reflected a minimum of 15.
11
Her report was not written until after the referenced IEPs had been proposed. (S-22, S-42, S-45, P-33, P-36)
12
20 USC 1400 et seq .
13
MGL c. 71B.
14
David D. v. Dartmouth School Committee , 775 F.2d 411, 423 (1 st Cir. 1985). Although the applicable legal standard changed to FAPE effective January 1, 2002, the “maximum possible educational development” standard was applicable at the time that the IEPs were developed and proposed by Bellingham and therefore is the standard by which the IEP will be judged. Bellingham has not disputed the applicability of this standard.