COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Belmont Public Schools
BSEA # 01-3228
DECISION
This decision is issued pursuant to 20 USC 1400 et seq . (Individuals with Disabilities Education Act), 29 USC 794 (Section 504 of the Rehabilitation Act), MGL chs. 30A (state administrative procedure act) and 71B (state special education law), and the regulations promulgated under said statutes.
A hearing was held on May 30 and 31, 2001 and June 5, 2001 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:
Student’s Mother
Student’s Father
Lawrence Kotin Attorney for Student and her Parents
Sandra Moody Attorney for Belmont Schools
Kaaren Bekken Neuropsychologist, Mass. General Hospital
Gretchen Timmel Psychologist, Mass. General Hospital
Karen Levine Psychologist, Spaulding Hospital
Janet Zeller Director, Tufts Educational Day Care Center
Heather Boucher Teacher, Tufts Educational Day Care Center
Edward Orenstein Director of Student Services, Belmont Public Schools
Alison Goulder Teacher, Belmont Public Schools
Sally Smith Preschool Liaison, Belmont Public Schools
Nancy Smock Speech/Language Pathologist, Belmont Public Schools
Deborah Dayton Physical Therapist, Belmont Public Schools
Julie Cyr Gibowicz Speech/Language Pathologist, Communication
Therapy Associates
The official record of the hearing consists of documents submitted by the Parents and marked as exhibits 1 through 39, and exhibit A1 (hereafter, Exhibit P-1, etc.); documents submitted by the Belmont Public Schools (hereafter, Belmont) and marked as exhibits 1 through 7 (hereafter, Exhibit S-1, etc.); and approximately three days of recorded oral testimony and argument. As agreed by the parties, written closing arguments were due on June 25, 2001, and the record closed on that date.
ISSUES PRESENTED
Is the IEP for the period 6/00 to 6/01 (Exhibits S-5, P-20) proposed for Student by Belmont reasonably calculated to assure her maximum possible educational development in the least restrictive environment consistent with that goal? If not, does Student’s program at the Tufts Educational Day Care Center (where Parents have unilaterally placed Student) meet the federal standard of an appropriate educational placement and if so, are Parents entitled to reimbursement for expenses associated with this placement?
PROFILE AND HISTORY
Student is a highly likeable, engaging four-and-a-half-year-old youngster (DOB 10/24/96) who loves to sing and dance. She also has leukemia, having been diagnosed with Acute Lymphoblastic Leukemia (ALL) at age two years, three months. Testimony of Mother; Exhibits S-1, P-24, P-25, P-30.
When Student’s leukemia was first diagnosed in January 1999, she was developmental delayed only with respect to her expressive speech. However, for unexplained reasons, she soon lost a significant variety of abilities and made only slow gains in other areas (including speech, language, cognition and motor skills), becoming globally developmentally delayed. Testimony of Mother, Levine, Bekken; Exhibits S-1, P-24, P-28, P-30.
Following an early intervention assessment in April 1999, Student received speech/language and physical therapy services at home. In October 1999, Student was further evaluated through early intervention. Testimony of Mother; Exhibits P-33, P-34, P-35, P-36, P-37, P-38, P-39.
On October 24, 1999, Student turned three years old, and in late November 1999, she started in the Belmont preschool program pursuant to a diagnostic evaluation. The Belmont program consisted of 4 half-day sessions of integrated preschool (2 ½ hours each day), during which time she also received the following therapies each week: 1 hour of speech/language therapy, ½ hour of physical therapy, ½ hour of occupational therapy and a ½ hour in a language-motor group (co-taught by a speech/language pathologist and physical therapist). Testimony of Mother, Smith; Exhibits S-1, P-24, P-30.
At the end of the diagnostic period, the Team met on January 26, 2000 and proposed a full IEP, continuing the four mornings of integrated preschool as well as the language-motor group, and increasing her therapies as follows: speech/language for 3 sessions per week (1/2 hour each), physical therapy for 2 sessions per week (1/2 hour each) and occupational therapy for 2 sessions per week (1/2 hour each). Consultation regarding speech/language, occupational therapy and physical therapy (15 minutes each) were also to be provided. Testimony of Smith; Exhibits S-3, P-27.
In December 1999, Mother arranged for an evaluation from Kaaren Bekken, PhD, a neuropsychologist at Mass. General Hospital — the first of several independent evaluations. Dr. Bekken issued an evaluation report in January 2000. Testimony of Mother; Exhibit P-28.
In order to consider Dr. Bekken’s evaluation, the Team met again (February 15, 2000) and as a result of its meeting, added to the proposed IEP a 5 th day. On the 5 th day (Wednesdays), Student would spend 2 ½ hours with a 1:1 aide, and would be accompanied by 2 other special needs children, also with 1:1 aides. (These 2 other special needs children would not be with Student during other parts of the week.) The 2 ½ hour Wednesday session would be used for pre-teaching skills, would include a mini version of activities normally done during the 4 preschool days but would not include an integrated preschool program. The services described in this IEP were provided to Student. Testimony of Smith, Mother; Exhibits S-3, P-27.
The Team met again on May 24, 2000 and proposed the most recent IEP for the period 6/00 to 6/01. This IEP is identical to the previous IEP with respect to the 4 mornings of integrated preschool, the 5 th day (Wednesdays), occupational therapy and consultation services. Two therapies were increased — speech/language and physical therapy were each increased to 4 sessions per week (1/2 hour each). Testimony of Smith; Exhibits S-5, P-20.
Also added to this IEP was an afternoon program, 5 days per week, from 11:30 AM to 2:00 PM. This time would consist of lunch (20 to 30 minutes), rest (approximately an hour), 1:1 work on pre-teaching skills, and some but not all of the individual therapies (the therapies not delivered in the afternoon would be delivered during the morning). Testimony of Smith; Exhibits S-5, P-20.
The proposed IEP also added a summer program consisting of 7 weeks (the IEP mistakenly indicates 6 weeks) of a language group of special needs children twice each week (2 hour sessions), physical therapy services 2 times per week (30 minute sessions) and occupational therapy for 6 sessions (45 minutes each). The summer programs, combined with the regular academic year program for Student, would result in a gap of services for 1 week at the end of the regular school year, prior to the beginning of the summer program, and 2 or 3 weeks at the end of the summer program, prior to the beginning of the regular school year. Testimony of Smith; Exhibits S-5, P-20.
By letter of May 30, 2000, Parents notified Belmont of their intent to reject this IEP and enroll Student in the Tufts Educational Day Care Center (hereafter, Tufts program) on June 14, 2000. Student has been attending the Tufts program since June 14, 2000. Testimony of Mother, Zeller; Exhibits S-6, P-21. The Tufts program provides Student with a daily, year-round, full day of integrated preschool (8:30 AM to 4:30 PM), and the equivalent therapies proposed in Belmont’s most recent IEP. Testimony of Mother, Zeller, Boucher.
STATEMENT OF THE EVIDENCE
Student’s mother (hereafter, Mother) testified that following Student’s diagnosis of leukemia in January 1999, Student began chemotherapy treatment. She explained that the first month of treatment was the heaviest, that intense chemotherapy continued through May 1999, and then dramatically less intense, maintenance treatment until the chemotherapy was completed in March 2001. She noted that during the intensive treatment, Student lost weight and energy although she never became lethargic; she gained weight and energy during the maintenance treatment.
Mother testified that she noticed Student beginning to make significant gains in November 2000. She explained that prior to November 2000, there were spurts of progress which did not seem to last, as compared to the last 4 to 6 months when Student’s rate of learning has increased, Student has shown increased interest in other children and her gains have been more consistent.
Mother testified that Belmont has never sought a release from Parents in order to speak with their experts, Dr. Bekken and Dr. Levine.
Heather Boucher testified that since September 1999, she has been a teacher in the Tufts program. She explained that she received her BA in 1999 and has an Advanced Provisional Teaching Certificate. See her resume, Exhibit P-9.
Ms. Boucher testified as to Student’s typical day at the Tufts program, arriving at 8:30 AM and leaving at 4:30 PM, five days per week; there is a half-hour lunch break and a 2 hour nap time (Student sleeps approximately 1 ½ hours of this time). She noted that during the week, Student receives 4 sessions of speech/language therapy (30 minutes each), 2 sessions of physical therapy (1 hour each), and 1 session of occupational therapy (1 hour).
Ms. Boucher described Student as very popular with her peers (other children want to be with her and play with her), and is very much an accepted member of the preschool group. Ms. Boucher noted that a pictorial communication system (developed by Mayer-Johnson) is Student’s primary mode of communication, although she uses some American Sign Language (hereafter, sign language) and gestures, and she verbalizes the words that she knows. She explained that every child in Student’s program uses this pictorial communication system so that it has become a common language in the classroom.
Ms. Boucher testified that Student has learned a great deal from her peers regarding receptive and expressive language since she is a keen observer of her peers and their activities, and she models their behavior and language. As a result, she opined, Student benefits from the amount of time she is able to spend with her peers in the preschool program. See also Tufts Progress Notes, Exhibit P-1.
Ms. Boucher testified that since arriving at the Tufts program in June 2000, Student has made significant progress in a variety of areas, including her social skills, physical strength, willingness to take risks and communication skills.
Julie Gibowicz testified that she is a licensed speech/language therapist and received her masters in communication disorders in 1998. She explained that she provides speech/language services 4 mornings each week at the Tufts program, through her employment at the Communication Therapy Associates. See her resume at the end of Exhibit P-9.
Ms. Gibowicz testified that she has provided speech/language services to Student since Student began in the Tufts program in June 2000. She testified that Student has become interested in communication and is motivated to learn; and she learns best through repetition, consistency and reinforcement from her peers and teachers.
Ms. Gibowicz testified that Student benefits from the length of the day at the Tufts program, providing her opportunity to practice what she has learned. She further explained how Student benefits from her peers: they are very interested when she communicates, providing vital reinforcement to Student’s communication, and they serve as repetitive models for language development. She explained that Student is sought after by her peers; she is very interested in her peers, watching them and how they use language effectively; and she takes skills that she has learned from teachers and tries them out with her peers. As a result, she opined, Student’s time with other children is extremely important since these opportunities to learn from and with her peers account for a significant part of her educational progress. She further noted the importance of the other children knowing the Mayer-Johnson pictorial communication system and sign language so that Student is able to communicate with and thereby learn from her peers.
Ms. Gibowicz testified that Student has made important gains since coming to the Tufts program – for example, ability to attend has increased, improved ability to imitate others, greater communication skills with the pictorial system and spoken language, and improved social interaction skills.
Ms. Gibowicz’s progress report for Student for the period 6/00 to 9/00 (co-authored with Dena Rollo) concludes, in part, with the following recommendation:
[Student] would benefit from a therapeutically integrated preschool setting so that she is continually exposed to appropriate language and social models.
Exhibit P-11.
Janet Zeller, EdD, testified that she has been the Director of the Tufts program since 1983 and is Lecturer at the Tufts Eliot-Pearson Department of Child Study. She received her EdD in 1985. See her resume, Exhibit P-9, and the description of the Tufts program, Exhibit P-18.
Dr. Zeller testified that her responsibilities as Director of the Tufts program are to create, orchestrate and evaluate the programs offered, to supervise the teachers, and to assist with the development and modification of curriculum for each child. She noted that she knows Student through daily contact with her and through observation of her 4 or 5 times per week.
Dr. Zeller testified that at the Tufts program, Student participates in an integrated preschool program of 18 children, 3 of whom (including Student) have IEPs and 1 or 2 of whom have other kinds of special needs relevant to learning. Dr. Zeller explained that Student is in this preschool program for the full day, although at times her therapies result in her being pulled out of the classroom.
Dr. Zeller testified that all of the children and staff in Student’s preschool program are taught American Sign Language (sign language), and all of the children and staff learn to use photographs and pictures, as well as familiar gestures for purposes of communication in the classroom. As a result, she explained, all of the staff and children are communicating in ways that Student can understand.
Dr. Zeller testified that because of Student’s cognitive delays, she requires a great deal of consistency and repetition, so that the only thing that changes relates to the new skill which is being learned. Dr. Zeller explained that most of what children learn at an early age is through imitation – for example, through the opportunity for modeling of typical peers. She noted that this is particularly true for Student who is an excellent observer and is socially very engaging. In Dr. Zeller’s opinion, Student would not do well with different groups of children at different times; also, she would be limited in her ability to learn from her peers if they are not communicating spontaneously in a common language. She explained that Student’s peers need to give her the exact script that she both understands and uses to communicate. Dr. Zeller further testified that Student requires consistency in her learning environment — Student’s therapies should not be provided separately from the preschool classroom since what she learns in her therapies needs to be integrated into the rest of the day.
Dr. Zeller testified that currently, there is a window of opportunity to teach Student as she is able to absorb more education now than when she reaches age 7 or 8. She explained that, as a result, it is particularly important to provide Student with a long day of instruction (including a nap of 1 ½ hours which is necessary for Student to be refreshed), a five-day per week, full year preschool program with therapies. She noted the significant gains that Student has made since she began attending the Tufts program.
Dr. Zeller testified that on March 27, 2001 for 2 hours and 10 minutes, she observed the Belmont program proposed for Student. Dr. Zeller stated that she observed some signing (including gestures and pictures) between teachers and children, but she did not observe any spontaneous communication between children through signing.
Gretchen Timmel testified that she is employed as a psychologist at the Mass. General Hospital (hereafter, MGH) where she has been doing psychometric assessments and serving as a liaison for the past 15 years; at MGH she shares cases with Dr. Bekken. She noted that she performs an average of 5 evaluations per week and has observed approximately 20 programs during the past year. See her resume, included at the end of Exhibit P-2.
Ms. Timmel testified that Dr. Bekken brought Student to Ms. Timmel’s attention, requesting that she observe Student’s current and proposed programs. Ms. Timmel has reviewed Student’s records and has spoken with Parents.
Ms. Timmel testified that she observed the Tufts program on October 5, 2000 between 2 and 2 ½ hours, and she watched a video of Student in the Tufts program, taken in May 2001. See her observation report, Exhibit P-8. She noted that she observed Belmont’s proposed program on April 24, 2001 for 2 ½ hours. See her observation report, Exhibit P-2.
On the basis of these observations, her review of other evaluations and talking with Parents, Ms. Timmel testified that Student appears to be very much a part of the group of children at the Tufts program, communicating and interacting with other (typical and special needs) children, attending consistently and generally participating 70 to 80 % of the time while in a small group. She observed Student using the Mayer-Johnson picture system to communicate with other children.
Ms. Timmel testified that the opportunity for Student to participate with and learn from typical peers is critical to her educational development because her language is quite compromised. She explained that when Student observes a typical peer in the classroom, she models that child’s behavior; there is a connection between Student and the typical child so that Student understands that she should do what the typical child is doing and then tries to replicate it.
Ms. Timmel testified that Student has had to struggle because of her illness, chemotherapy treatments and multiple disabilities, and consequently, it is particularly important for Student to be “connected” to her environment (i.e., feel that she is part of a group at school) so that she does not feel isolated or unsupported and so that the group process will sustain her.
Ms. Timmel testified that in order for Student to have maximum educational development, Ms Timmel recommends that (1) Student have the most opportunities possible for peer modeling, (2) the Mayer-Johnson communication system be used throughout Student’s program so that she, her peers and teachers can communicate with each other, (3) and her educational and related services continue in a consistent manner through the summer in order to avoid regression.
Ms. Timmel testified that during her observation of the proposed Belmont program for 2 ½ hours, she did not see an integrated use of the Mayer-Johnson and sign language communication systems (for example, typically developing children did not spontaneously use the Mayer-Johnson system or sign language to communicate with their peers in the class). She explained that fully integrated, consistent communication systems (to which Student has access during all parts of the day) are critical for Student to learn from her peers and teachers. Ms. Timmel further noted that in her opinion the relatively short school day proposed by Belmont (as compared to the longer school day at the Tufts program) would limit Student’s educational development.
Ms. Timmel’s observation report of April 24, 2001 concludes with a joint statement from her and Dr. Bekken which explains, in part:
Due to the fact that [Student] is an observational learner, her needs are believed to be best served in a program that exposes her to a consistent group of typically developing peers for the entire day.
Exhibit P-2, last page.
Kaaren Bekken, PhD, testified that she is employed as a neuropsychologist at Spaulding Rehabilitation Hospital and the Mass. General Hospital (MGH). She further noted that she is an instructor at Harvard Medical School and is a private consultant. Dr. Bekken estimated that she performs 4 to 7 neuropsychological evaluations each week. She is licensed as a psychologist and received her PhD in 1989. See her resume at the end of Exhibit P-2.
Dr. Bekken testified that she has seen and evaluated Student on three occasions: January 25, 2000 (Exhibit P-28), November 16 and 29, 2000 (Exhibit P-6) and May 19, 2001 (Exhibit P-A1). She explained that as part of these evaluations, she reviewed previous evaluations of Student and had discussions with Parents.
Dr. Bekken testified that Student needs a combination of direct services, often in a 1:1 setting, and time spent with typically developing children. However, she explained that the time spent with typical peers is particularly important for her educational development for two reasons: first, she is very alert, observant and social, allowing her to spend considerable time with and benefit from her typical peers; second, her language is compromised, often making it difficult for her to ask questions or understand her teachers through language, but the more she can watch successful peer models, the more she can utilize her visual learning abilities.
Dr. Bekken testified that Student’s social and pragmatic skills are very weak because of her language deficits, with the result that it takes her longer than most children to read social cues, become comfortable with other children and interact with her peers up to her potential, and thereby learn from her peers. Dr. Bekken explained that because Student is learning primarily through modeling her peers, she needs to be in a group with which she feels comfortable
Dr. Bekken testified that Student has made significant, qualitative gains during the time between Student’s visits with her, demonstrating a more developmentally advanced approach. She believes that Student is “really starting to flower” and that there is a window of opportunity now for learning that will not exist within a few years. She therefore believes it particularly important that Student now receive as much educational and related services that can be scheduled for her and that she is able to tolerate.
Dr. Bekken testified that Student therefore needs to spend as much time as possible with typical peers and the typical peer group should be as consistent, over time, to the extent possible to increase her opportunities to form peer relationships and to learn from them.
Dr. Bekken testified that in her first evaluation report (January 2000), she recommended either a full or half-day since she was not sure at that point in time how much Student would be able to tolerate, but her intention has always been for Student to receive the maximum amount of time in her educational program. She further noted that for Student a “full-day” does not mean the typical school day for most children her age but rather educational services should continue through the entire day if possible. She added that her recommendations include a five-day-per-week, year-round program with as few transitions and as much consistency as possible.
Dr. Bekken testified that subsequent to her January 2000 evaluation, Belmont did not invite her to the Team meeting at which the evaluation was considered.
Dr. Bekken’s most recent evaluation report further explains:
Given her levels of deficit, receptivity to therapy as indicated by qualitative gains, and the documented benefit of intensive early intervention, it will be important to provide as much therapeutic interactions as she can handle. . . . She needs to be with normally developing peers for the full day, as she needs intensive exposure to good role models for language, pragmatic development, communication and problem-solving. . . . [I]t is imperative that she have a consistent set of children with whom she can form and develop friendships/peer interactions.
Exhibit P-A1, page 2.
Dr. Bekken testified that the services proposed by Belmont would likely not maximize Student’s educational development for the following reasons: the Belmont morning preschool program does not continue through the afternoon, the afternoon program does not provide an opportunity to interact with typical peers, the summer program is not a continuation of the school year program and does not include typical peers, and the school day is too short to maximize her development. She opined that during Belmont’s proposed summer program with a new setting, different children and no typical peers, Student would be at risk of regression.
Dr. Bekken testified that the chemotherapy Student received for her leukemia may have interfered with her developmental progress and therefore her previous regression is consistent with her illness; she has observed progress since the end of Student’s chemotherapy.
Karen Levine, PhD, testified that she has been employed as a psychologist and co-director of the evaluation unit at the Spaulding Rehabilitation Hospital since 1990; she has been the clinical director of Autism Services at the North Shore Association for Retarded Citizens for the past 2 or 3 years; she was the Director of Psychology at the Developmental Evaluation Center, Children’s Hospital in Boston from 1990 to 1997; and she was an instructor at Harvard Medical School from 1992 to 1999. She explained that all of her work is with children and their families and 80% of her clients are under the age of 5 years; in a typical week she sees 15 children for purposes of evaluation; and she has evaluated approximately 1,000 children who have both developmental deficits and medical problems, a “few” of whom are cancer survivors.
Dr. Levine testified that she first saw Student in May 2000. She explained that because Dr. Bekken had already done a developmental evaluation, Dr. Levine focused on Student’s social interactions and play. She found Student to be very interested in pretend play, was trying to communicate, appeared to be very social but her social interactions and communication abilities were impaired, thereby frustrating her. She also noted Student’s short attention span and cognitive delays. She concluded that Student clearly enjoyed play and is able to learn from observing others, but also needs individual attention to facilitate and assist her interactions with others. She also noted that she was not able to find an explanation for Student’s regression.
Dr. Levine testified (and her report reflects) that because of the importance of Student being with typically developing peers, she recommended a “[d]aily, full-day, year-round program where the emphasis is on social interaction, communication and development of symbolic play skills” (she testified that what she meant by the phrase “full-day” was “as much as Student could reasonably tolerate” and this may extend the time beyond the normal school day); and the program should be either in a typical day care center or in an integrated preschool, with an aide. Exhibit P-24, page 3.
Dr. Levine testified that she next saw Student in September 2000 and noted Student’s progress regarding her abilities to interact and communicate with others – for example, she had made an important qualitative gain regarding her ability to engage in a “three-way communication” (Student describing a previous encounter with another person). Dr. Levine also noted that Student was trying to communicate in a more sophisticated and spontaneous manner, but was frustrated by her limited ability to do so. Dr. Levine explained that this frustration was a positive sign, indicating her desire to expand her communication abilities. However, Dr. Levine also noted her concern that if not addressed, Student’s frustrations would likely limit her ability to learn from therapies and directed teaching. She concluded that Student’s self-esteem and motivation are critical to continued progress and recommended that addressing Student’s social and emotional development be a priority.
Dr. Levine’s report from the September 2000 assessment of Student reflects these concerns and priorities. The report explained, in part: “prioritizing, creating a solid social/emotional base for her will be a pre-requisite to advancement across all other areas and will directly impact . . . her communicative development. She is at great risk for emotional/behavioral difficulties due to her own history of these difficulties, in combination with what she has been through medically and her expressive language delays.”
Dr. Levine’s report indicates her familiarity with the Tufts program and her view that this would be an “ideal” placement for her. Her report then contrasts a more typical school-based program with the Tufts model:
While a more typically school based educational program filled with therapies and a great deal of individual time with an aide would be beneficial for her in some ways – in terms of providing appropriate therapies – again I would stress that the social/emotional nurturing component at this time is of top priority, and is reflected in a combination of the overall priority within the classroom/day care, as well as the continuous peer group throughout the day.
Exhibit P-17, page 3.
Dr. Levine testified that Student is a unique child — she is more developmentally delayed than socially delayed. Dr. Levine explained that because Student is a social person who imitates and learns from her social environment, she is able to learn from and use her environment and the people around her; and her peers are therefore particularly important to her educational development. As a result, Dr. Levine concluded that having only 2 ½ hours per day with typical peers would not likely maximize her educational development.
Dr. Levine testified that for many delayed children, she recommends the program proposed by Belmont – that is, a combination of integrated preschool for part of the day and individual therapies at other times. However, she explained that because of Student’s unique characteristics (including her difficulty generalizing and ability to learn from her peers), she needs to have an interspersing of the individual therapies/instruction with the integrated group in order for her to have the repetition and practice necessary for her to learn a skill and then to generalize it into other settings, and this can only occur through an integration of the therapies/instruction with the classroom with typical peers.
Dr. Levine testified that a summer program of individual therapies without her integrated preschool program would not be effective because, in her view, the core of how Student learns is not from isolated therapies – rather, she needs repetition and practice throughout the day. She noted that Student would be better off with only an integrated preschool program as compared to only receiving therapies. Dr. Levine concluded that in order to avoid regression, Student needs year round continuity of an integrated preschool.
Sally Smith testified that she has been employed by Belmont half-time as its inclusion specialist since 1996 and half-time as its preschool liaison since 1989. She noted that she has a masters degree in special education (1974). She has been employed from 1974 to 1996 as a teacher in public school. See resume, Exhibit S-7.
Ms. Smith testified that Belmont has four separate integrated preschool classrooms – two are 4 mornings per week (9:00 to 11:30 AM) and two are 4 afternoons per week (12:30 to 3:00 PM). She explained that each class is similarly constituted with 8 typical children and a maximum of 7 children with special needs.
Ms. Smith testified that each of the 4 preschool integrated classes is structured (with a predictable routine) and is language-based (with consistent language imbedded into all activities throughout the day). She further explained that each class has opportunities for large group work, language and fine motor skills, free play, literacy time, bathroom time, snack and either playground or gym for work on gross motor skills. With respect to language used in the class, she noted that all teachers in all of the classes are familiar with the Mayer-Johnson pictorial communication system as well as sign language; these augmented communication systems are incorporated into all aspects of the day, and the language issues being worked on with a speech/language therapist are also consistently taught throughout the day.
Ms. Smith testified that Belmont proposed for Student a diagnostic evaluation because it felt that more information was needed than Belmont had been able to obtain from early intervention; Belmont wanted to observe Student in her therapies and in the preschool class. She explained that at the end of the diagnostic period when the IEP was revised as a result of the February 15, 2000 meeting, the IEP met the recommendations of the independent evaluator, Dr. Bekken, in her January 2000 report.
Ms. Smith testified that Parents obtained additional independent evaluations and forwarded to Belmont evaluation reports/letters from Dr. Dooling, Dr. Levine, Dr. Toppelberg and Dr. Bekken, and these evaluation reports/letters were considered at the May 24, 2000 IEP Team meeting which generated the most recently proposed IEP. Exhibits P-20, S-5.
Ms. Smith testified that she observed Student in her class at Belmont at least 2 times per week; she observed Student in the Tufts program for 2 hours on March 16, 2001; she has reviewed evaluations, progress reports and other parts of Student’s records; and she has listened to the testimony in this matter. She noted also that she has experience with Belmont’s serving other children who have as severe learning delays as Student.
Ms. Smith testified that she believes that as a result of the services that Student received from Belmont, she made significant progress. Ms. Smith further opined that on the basis of her knowledge of Student and other children with as severe disabilities, Belmont’s proposed summer program would prevent regression by Student.
With respect to Belmont’s proposed program during the other parts of the year, Ms. Smith testified that while Student needs exposure to typical peers in order to hear language models, she would benefit from a significant amount of time devoted to directed teaching of skills in a distraction-free environment (for example during the afternoons in the proposed program), and then practice these skills at a slower pace during Wednesday mornings. On the basis of her experience with other children with as severe disabilities as Student and what has succeeded for them, she opined that Belmont’s proposed program would meet Student’s needs. She also noted that Belmont does not operate a full-day integrated preschool program.
Alison Goulder testified that since 1992 she has been the head teacher for Belmont’s integrated preschool program. She explained that she has a masters degree in special education (1978) and is certified in special education. See her resume, Exhibit S-7. She further explained that her responsibilities include teaching an integrated preschool class in the morning and a similar class in the afternoon, and she was Student’s teacher while Student attended Belmont’s integrated preschool program.
Ms. Goulder testified (and her progress report reflects) that Student made qualitative gains while attending the Belmont program – for example, Student became more comfortable in the school and classroom, she demonstrated improvement in understanding classroom routines, she learned to differentiate between different adults, she became stronger physically and was able to move from one place to another, and her interest in other children increased. Ms. Goulder explained that Student was interested in and observed other children and they liked to be with her although she was not able to imitate other children because of her motor limitations; and Student contributed to the group through her enjoyment and participation in rhythm and dance. Exhibit S-4.
Ms. Goulder testified that Belmont trains its teachers to use sign language, and sign language is used during group time although mostly to teach songs. She noted that typically developing children pick up sign language incidentally (rather than being specifically instructed in it) by watching the teachers use signing. She further testified that the Mayer-Johnson pictorial communication system is not taught to the children in her class as a way of communicating but instead is used as a picture system to illustrate concepts. She noted that she has observed children using sign language spontaneously as a supplement to their verbal communication, but seldom has she seen children in her classes using the Mayer-Johnson system to communicate.
Ms. Goulder testified that Belmont’s most recent IEP, in her opinion, meets the recommendations of Dr. Levine and Dr. Bekken because Belmont offers a full-day schedule for Student. She further opined that this IEP would meet Student’s needs because Student not only requires an integrated component; she also needs direct, 1:1 teaching in a quiet setting (with reduced stimulation) to improve her communication skills and can then bring these skills into the larger group setting. Ms. Goulder explained that she reached this conclusion on the basis of her belief that any child with significant delays would benefit from this combination of integrated group work and directed teaching, and because she noticed that when she taught Student, Student occasionally “shut down” in the integrated setting.
Ms. Goulder testified that she observed Student at the Tufts program for 1 ½ hours on May 15, 2001.
Nancy Smock testified that she is a speech/language pathologist for Belmont preschool children, providing evaluations and therapy; she has been employed by Belmont since 1987. She noted that she received her masters degree in speech pathology in 1973, with a Certificate in Clinical Competency in 1977. See her resume, Exhibit S-7.
Ms. Smock testified that she provided speech/language therapy to Student from November 1999 to June 2000. She explained that for the first 2 months, she worked with Student in the classroom; however, because it seemed difficult for her to attend, Ms. Smock pulled her out of the classroom for her therapy thereafter. She further explained that Student learns best in a distraction-free environment with development of skills at a slower pace than would occur in an inclusion setting.
Ms. Smock testified that Student needs an integrated pre-school group to learn social skills and model language used by typical children – for example, she needs to be able to observe and imitate typical children initiating play, helping each other, and turn taking. She further explained, however, that Student does not learn skills only from inclusion; her skill development is also dependent upon 1:1 directed teaching and individual therapies across all environments.
Ms. Smock testified that Student made progress while in the Belmont program. She explained in her May 25, 2000 progress report that Student had recently demonstrated a “surge in interest and participation in preschool activities and in the children. Where she used to be a quiet, more passive observer, she now readily joins in more and more activities . . . .” The progress report further noted that Student was starting to imitate “motions to songs, and chooses which song we sing by pointing to picture icons . . . .” She also noted “a lot of spontaneous babbling, vocalizing, and consistent naming in the past 4-6 weeks.” Exhibit S-4.
Ms. Smock testified that she reviewed the speech/language progress report for 6/00 to 9/00 and concluded that Student’s vocabulary was reduced from June 2000 and that she was no longer vocalizing two-word combinations. Exhibit P-11. She also stated that she reviewed the January 2001 speech/language progress report and did not see significant improvement since May 2000. Exhibit P-3.
Deborah Dayton testified that she has been employed for the past 23 years in private practice as a physical therapist for children, with 85% of her time devoted to providing physical therapy to children in preschool. She explained that 50% of her time is contracted to Belmont. See her resume, Exhibit S-7.
Ms. Dayton testified that she was Student’s physical therapist while Student attended the Belmont program. She found that Student was interested in other children, but she did not observe Student imitating them. She noted that with Student’s limitations regarding motor skills, she was not able to keep up with her peers.
Ms. Dayton testified that Student made progress, as reflected in Ms. Dayton’s progress report for the IEP covering 3/00 to 3/01. She testified that Student improved her gross motor skills – for example, learning to climb up and down a slide. Comparing Student when she attended the Belmont program with the progress noted while attending the Tufts program, Ms. Dayton testified that many of the skills noted are similar to what she observed at Belmont, while other skills are new. She also noted, however, that there appeared to be some regression of skills that had been learned at Belmont. Exhibits S-4, P-1.
Ms. Dayton testified that, from her perspective as a physical therapist, Belmont has a good program for Student, with an opportunity for Student to pace her physical development and to carry over the physical therapy into other parts of day.
FINDINGS AND CONCLUSIONS
Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA), 20 USC 1400 et seq . and the state special education statute, MGL c. 71B. As such, she is entitled to a free, appropriate public education (hereafter, FAPE) which is reasonably calculated to assure her maximum possible educational development in the least restrictive environment consistent with that goal. David D. v. Dartmouth School Committee , 775 F.2d 411, 423 (1 st Cir. 1985). Neither her status nor her entitlement is in dispute.
A. Special Education and Related Services Proposed by Belmont
The first issue is whether the programming and specialized services embodied in Belmont’s most recently proposed IEP1 are consistent with said legal standard.
I note at the outset that Student’s proposed program at Belmont and Student’s actual program at Tufts both consist of a combination of integrated preschool and therapies (physical therapy, speech/language and occupational therapy). The amount of the therapies is essentially the same in the two programs, and Parents do not contest this aspect of Belmont’s proposed IEP. The difference between the two programs lies in the integrated preschool program, and it is this aspect of Belmont’s proposed IEP that will be discussed below.
1. Integrated Preschool Services During the Academic Year .
Although there are a number of issues raised by Parents regarding this IEP, their principal concerns may be summarized as follows: Student does not have sufficient opportunity to participate in a preschool classroom with typically developing peers pursuant to the program proposed by Belmont. This concern has several components. First, the proposed Belmont program does not have an integrated preschool component during any afternoon. Second, the proposed program does not have an integrated preschool on Wednesday mornings. Third, Belmont’s proposed summer program does not include an integrated preschool component.
Belmont takes the position that not only is it satisfactory for Student to have a preschool component only for 2 ½ hours, four days per week during the academic year, but what Belmont is offering at other times of the day is more helpful to Student than an integrated preschool. Belmont further argues that what it is offering during the summer is sufficient to prevent regression. (The summer program will be addressed in more detail in part A2 below.)
There is no disagreement that Student is a highly social and likeable child. Once she is comfortable with other children, she readily joins in, becoming part of the group. She is highly interested in and a keen observer of what other children are doing. Testimony of Smock, Goulder, Boucher, Zeller, Levine, Timmel; Exhibit S-4.
It is also not disputed that Student learns from her typically developing peers, and that an integrated preschool component provides a necessary ingredient to her educational development. For example, the Belmont speech/language therapist (Ms. Smock) testified that Student needs an integrated pre-school group to learn social skills and model language used by typical children. Testimony of Smock, Goulder, Boucher, Zeller, Levine, Timmel; Exhibit S-4.
However, Parents’ witnesses place greater emphasis on the importance of the time spent with typically developing peers. Parents’ witnesses made clear their view that the primary way in which Student learns is through exposure to typical peers, including adult assistance with peer interactions. And, they take the position that Student requires time with typical peers for a full day, five days per week, year-round in order to make effective progress. Testimony of Gibowicz, Levine, Timmel, Bekken, Zeller.
I find Parents’ position regarding this issue persuasive for the following reasons.
The views of Belmont’s witnesses regarding preschool and what Student needs are informed by their experience working with Student.2 However, when they testified at the Hearing regarding what they recommended for Student, the Belmont witnesses explicitly based their recommendations principally on their previous experience with other children whose delays they believed were as significant as those of Student. They have found that a combination of integrated preschool for 2 ½ hours, 4 days per week, with additional therapies, has been effective for these children, and therefore they recommended these services for Student. Testimony of Smith, Goulder, Smock.
It is appropriate to consider how to serve Student based upon a comparison to how other preschool children (who also have significant learning delays) have been successfully served. However, a basic tenet of special education law is that services must be grounded on the individual (and often unique) needs of the particular Student,3 and Belmont’s witnesses are therefore persuasive only to the extent that Student’s learning delays are not so unique as to reflect the need for other or additional services in order to maximize her educational development.
One of Parents’ experts (Dr. Levine) agreed that for many preschool children who have significant learning delays (as does Student), the combination of services proposed by Belmont is effective. This expert testified that she has recommended those services for many children whom she has evaluated. However, Parents’ experts (including Dr. Levine) persuasively demonstrated that Student’s profile is sufficiently unique that she cannot be served effectively with ten hours per week of integrated preschool, as proposed by Belmont. Testimony of Levine, Bekken, Gibowicz, Zeller.4
Student has a combination of significant language delay (particularly regarding expressive language), significant cognitive limitations, and difficulty generalizing what she has learned. In order to learn, she requires repetition and practice throughout the day. At the same time, she is highly social, very interested in other children and adults, quite popular with other children and a keen observer. Testimony of Bekken, Timmel, Gibowicz, Zeller, Boucher, Levine; Exhibits P-A1, P-2.
In large part because of her language delays (limiting her ability to communicate verbally), Student finds it difficult to ask questions and understand her teachers through language. As a result, she learns most from repeatedly observing and modeling others, and thereby practicing the skills she is learning. And, the more she can watch successful peer models, the more she can utilize her visual learning abilities for language, pragmatic development, communication and problem-solving. Because her peers are very interested when she communicates, they provide critical reinforcement to Student’s communication, in addition to serving as repetitive models for language development. Testimony of Bekken, Timmel, Gibowicz, Zeller, Boucher, Levine; Exhibits P-A1, P-2.
Because she is socially adept, interested in others and an excellent observer of how they use language effectively, Student can gain significant benefit from extended periods of time with typical peers. The extended time with other children in the Tufts program5 accounts for a substantial part of the educational progress Student has made so far. Testimony of Bekken, Timmel, Gibowicz, Zeller, Boucher, Levine; Exhibits P-A1, P-2.6
In contrast, if the therapies/directed instruction are separated out from the integrated preschool so that Student cannot move from one to the other during the day (for example, during the afternoons, Wednesday mornings and the summer when she would receive therapies and/or individual instruction but no preschool program, pursuant to Belmont’s proposed IEP), she would not be able to utilize effectively the directed instruction and therapies. In order for her to learn a skill and then to generalize it into other settings, she requires an interspersing of the therapies/instruction with an integrated classroom, providing her with the repetition and practice that occur naturally with typically developing peers in a classroom setting throughout the day. Testimony of Levine, Bekken, Gibowicz, Zeller.
Finally, I note that Student is at significant risk for emotional/behavioral difficulties due to her own history of these difficulties, in combination with her medical history and expressive language delays. Participating in an integrated classroom, with a continuous peer group, throughout the day avoids the risk of her becoming isolated or unsupported, and provides social and emotional nurturing that Student requires at this time. Testimony of Levine, Timmel.
The applicable legal standard requires Belmont to propose an IEP which is reasonably calculated to result in maximum feasible educational development. Given my findings (above) as to the critical importance of an integrated preschool to Student’s development and that Student is capable of taking advantage of a full-day, five days per week integrated preschool program, I am persuaded that Belmont’s proposed 2 ½ hour, four days per week preschool program is simply insufficient to meet this legal standard.
I also recognize that currently there is a window of opportunity to teach Student as she is able to absorb more education now than when she reaches age 7 or 8. In other words, it is particularly important to provide Student at this point in time with all of those educational services from which she can benefit. And, the single most critical piece of the service delivery model is having a full-day integrated preschool program. Testimony of Levine, Zeller, Bekken.7
For these reasons, I find that with respect to the integrated preschool component, the program proposed by Belmont for the academic year is not reasonably calculated to maximize Student’s educational development.
2. Summer Program .
I now turn to the summer portion of Belmont’s proposed program.
I find this aspect of the IEP most troublesome because of its lack of any integrated preschool component. Several of Parents’ experts persuasively testified as to their serious concerns regarding the risk of regression in the event Belmont’s summer program were implemented. Student would not receive what is most important for her educational development – that is, the opportunity to interact with and model typical peers – during the 10 or 11 weeks of the summer break from the academic year program.
Also, the services Belmont would propose to offer during the 7 week summer placement (language group and individual therapies) would not likely be effective for Student without an accompanying integrated preschool program. Testimony of Levine, Bekken, Timmel. See the discussion above in part A1 regarding the implications of separating therapies/instruction from the preschool component.
For these reasons, I find that during Belmont’s proposed summer program, Student would likely demonstrate substantial regression in her learning skills .8
3. Length of Day .
Parents have expressed concern that the proposed Belmont program would end at 2:00 PM, as compared to Student’s current program at Tufts, which ends at 4:30 PM. For the reasons already set forth in part A1 above, I find that Student currently requires an extended day of integrated preschool, similar to what she is now receiving in the Tufts program.9
However, I also find that, in the context of the present reimbursement claim, Belmont should not be faulted for having proposed an IEP for services that end at 2:00 PM. The principal evaluations relied on by Parents recommend, at most, a “full day” program. Exhibits PA-1, P-23, P-24, P-28.10 It was only at the Hearing that these experts made clear that they used the term “full day” to mean as long a day as Student could benefit from. Apparently at the time the evaluations were performed, it was not possible to know precisely how long a day this should be. Testimony of Levine, Bekken.
A “full-day” in the context of education would normally mean a program that continues until the academic school day is over unless extended day services are explicitly called for or the term “full day” is otherwise defined. No such clarification was provided in the evaluation reports.
4. Language-Based Classroom .
In order for Student to benefit from the integrated preschool program, both the teachers and the children need to understand and use a language or other communication system that Student has ready access to. Because Student has only limited expressive language using words, she relies on pictures, symbols, signing, gestures and other forms of augmented communication. At the Tufts program, this has taken the form of primary reliance on the Mayer-Johnson communication system. Testimony of Bekken, Zeller, Boucher.
Belmont has agreed with this, in principle, and has sought to demonstrate that the classroom in which Student would have been placed has augmented communication systems that would have met Student’s needs. Testimony of Smith. However, some doubt was cast upon Belmont’s position as a result of the testimony of the head teacher for the classroom where Student would have been placed. The teacher testified that Belmont trains its teachers to use sign language, and sign language is used during group time although mostly to teach songs. She explained further, however, that typically developing children pick up sign language only incidentally (rather than being specifically instructed in it) by watching the teachers use sign. Testimony of Goulder.
Similarly, the Belmont teacher testified that the Mayer-Johnson pictorial communication system is not taught to the children in her class as a way of communicating but instead is used by the teachers as a picture system to illustrate concepts. She noted that she has observed children using sign language spontaneously as a supplement to their verbal communication, but seldom has she seen children in her classes using the Mayer-Johnson system to communicate. Testimony of Goulder. I also note that two observers of this classroom did not see any spontaneous use of augmented communication systems by the children. Testimony of Zeller, Timmel.
On the basis of this testimony, I find that Belmont’s proposed classroom for Student does not meet her needs for a common language (or other common communication systems within the classroom) that is readily accessible to Student, her peers and her teachers. For the reasons explained above in part A1 of this Decision, it is particularly important that the children in the integrated preschool spontaneously use forms of communication that Student both understands and is able to utilize herself.
5. Conclusion .
For the above-stated reasons, I find that Belmont’s most recently proposed IEP is not reasonably calculated to assure Student’s maximum possible educational development in the least restrictive environment consistent with that goal during the academic year, and is not reasonably calculated to avoid substantial regression in her learning skills during the summer.
B. Parents’ Right to Reimbursement
In order to receive reimbursement for private school placement, Parents must demonstrate both that Belmont failed to offer an IEP that meets the appropriate legal standard and that their own unilateral placement of the child in private school was proper. E.g., Cleveland Heights v. Boss , 144 F.3d 391, 399 (6th Cir. 1998), citing Florence County School District Four v. Carter , 510 US 7, 10 (1993). I have already found in part A of this Decision that Parents have satisfied the first part of this standard. I now turn to the second part.
In Massachusetts, a public school district must meet the maximum feasible development standard, which is higher than the federal standard of free appropriate public education referenced by the Supreme Court in Florence County . However, when it is the parents of a child who must make placement after the school district fails to offer an appropriate IEP, the private school placement need not meet Massachusetts’ higher standard (maximum feasible development) in order to obtain reimbursement. Rather, private placement is assessed on the basis of the federal standard . Doe v. West Boylston School Committee , 4 MSER 149, 161 (D.Mass. September 14, 1998).
Belmont has stipulated that the Tufts program meets this federal standard. There is ample evidence in the record to support this conclusion. Testimony of Zeller, Boucher, Levine, Timmel, Bekken; Exhibits P-1, P-3, P-4, P-5, P-8, P-9, P-10, P-12, P-13, P-14, P-18. I therefore find that the Tufts program satisfies the federal standard relevant to a determination of reimbursement of Parents who have unilaterally placed their child.
An award of reimbursement may take into account whether Parents moved Student to a private placement after consultation with the school district and attempts by the Parents to achieve a negotiated compromise and agreement. Burlington v. Department of Education , 736 F2d 773, 798 (1 st Cir. 1984).
Parents made considerable efforts to work with Belmont to develop an acceptable program within the public school setting before ultimately deciding to place Student at the Tufts program. Parents have been faced with the challenge of trying to help their extremely vulnerable child. They have sought out and obtained highly expert professionals who have evaluated their daughter over a period of time. Parents have shared their written, expert evaluation reports with Belmont, seeking to obtain through Belmont a program that matched the recommendations of these experts. Only when it became clear at the Team meeting in May 2000 that Belmont would not be offering such a program did Parents place their daughter at the Tufts program. Testimony of Mother; Exhibits S-6, P-21, P-22, P-26. For these reasons, Parents’ efforts support an award of reimbursement.
For these reasons, I find that Parents are entitled to reimbursement for their costs associated with Student’s attendance at the Tufts program during the time period of Belmont’s most recent IEP.
ORDER
Belmont shall reimburse Parents for their costs associated with Student’s attendance at the Tufts Educational Day Care Center during the time period of Belmont’s most recent IEP.11
By the Hearing Officer,
William Crane
Dated: July 6, 2001
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL
EFFECT OF DECISION AND RIGHTS OF APPEAL
The decision of the Bureau of Special Education Appeals is final and is not subject to further agency review. Because 20 U.S.C. s. 1415(i)(1)(B) requires the Bureau decision to be final and subject to no further agency review, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision, once it is issued. Any party aggrieved by the Bureau decision may file a complaint in the Superior Court of competent jurisdiction or in the District Court of the United States for Massachusetts for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2). Under Massachusetts General Laws, Chapter 30A, Section 14(1), appeal of a final Bureau decision must be filed within 30 days of receipt of the decision.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Under G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay; rather, a party seeking to stay the decision of the Bureau must seek such stay from the court having jurisdiction over the party’s appeal.
Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program,” 20 U.S.C. s. 1415(j). Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings, must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983); Honig v. Doe , 484 U.S. 305 (1988).
RECORD OF THE HEARING
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to M.G.L. c.30A, ss. 11(6) and 14(4), an appealing party seeking a certified written transcription of the entire proceedings, must arrange for the transcription, or portion thereof, by a certified court reporter, at his/her own expense. Transcripts prepared by the party must then be submitted to the Bureau of Special Education Appeals with appropriate court reporter certification for final review and certification. A party unduly burdened by the cost of preparation of a written transcript of the sound recordings may petition the Bureau of Special Education Appeals for relief.
COMPLIANCE
A party contending that a decision of the BSEA is not being implemented may file a complaint with the Department, whose responsibility it shall be to investigate such complaint. 603 C.M.R. s. 28.00, par. 407.0.
In addition, the party shall have the option of filing a motion with the Bureau of Special Education Appeals, requesting the Bureau to order compliance with the decision. The motion shall set out the specific area of alleged non-compliance. The Hearing Officer may convene a hearing at which the scope of inquiry will be limited to facts bearing on the issue of compliance, facts of such nature as to excuse performance and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief and refer the matter to the Legal Office of the Department of Education for enforcement.
CONFIDENTIALITY
In order to preserve the confidentiality of the child involved in these proceedings, when an appeal is taken to Superior Court or to Federal District Court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See, Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
NOTICE OF REVISED BUREAU PROCEDURES
ON RECONSIDERATION/REHEARING
The United States Department of Education, Office of Special Education Programs (OSEP) in its 1990 Monitoring Report, issued July 17, 1991, ordered the Bureau to amend its procedures to eliminate the availability of reconsideration or re-opening as post-decision procedures in the Bureau cases. Accordingly, parties are notified that the Bureau will not entertain motions for reconsideration or to re-open. Bureau decisions are final decisions subject only to judicial review.
In addition, parties should be aware that the federal Courts have ruled that the time period for filing a judicial appeal of a Bureau decision is thirty (30) days, as provided in the Massachusetts Administrative Procedures Act, M.G.L. c.30A. See, Amann v. Town of Stow , 991 F.2d 929 (1 st Cir. 1993); Gertel v. School Committee of Brookline , 783 F. Supp. 701 (D. Mass. 1992). Therefore, an appeal of a Bureau decision to state superior court or to federal district court must be filed within thirty (30) days of receipt of the Bureau decision by the appealing party.
1
The IEP referenced is for the period 6/00 to 6/01. Exhibits S-5, P-20.
2
The Belmont witnesses testified that, based on their experience, it would be difficult for Student to benefit from a full-day of integrated preschool. Testimony of Goulder, Smith, Smock. For example, Ms. Goulder observed that when she taught Student, Student occasionally “shut down” in the integrated setting, indicating that Student was not available to learn at these times in the preschool class. I note, however, that during her time at the Tufts program, Student has been able to benefit from the full day of integrated preschool. Testimony of Boucher, Zeller, Timmel.
3
E.g., Houston Independent School District v. Bobby R. , 200 F.3d 341 (5 th Cir. 2000) (“IDEA requires tailoring to the unique needs of the handicapped child by means of an IEP”); Adams v. State of Oregon , 31 IDELR 130 (9 th Cir. 1999) (amount of service hours must be “linked to the child’s unique needs”); JSK v. Hendry County School Board , 941 F.2d 1563 (11 th Cir. 1991) (“[a]dequacy must be determined on a case-by-case basis in light of the child’s individual needs”); Burlington v. Department of Education , 736 F.2d 773, 788 (1 st Cir. 1984) (educational instruction must be based on the “unique needs of the disabled child” with sufficient support services so that the child will benefit from that instruction); 34 C.F.R. § 300.26 (“the term special education means specially designed instruction, at no cost to the parents, to meet the unique needs of a child with disability . . .); 603 CMR 28.02 (21) (“ special education shall mean specially designed instruction to meet the unique needs of the eligible student . . .”).
4
I particularly credit and rely upon the expert testimony and evaluation of Dr. Levine in light of her approximate 1,000 evaluations of children who, like Student, are disabled both developmentally and medically.
5
Tufts includes a daily, full-day, full-year integrated preschool program which Student attends from 8:30 AM to 4:30 PM each day.
6
The testimony was somewhat inconsistent regarding the amount of progress Student has made while attending the Tufts program, with several Belmont witnesses testifying that Student has regressed in certain areas. Testimony of Smock, Dayton. However, I give more weight to those who have worked directly with Student (and lived with her) since June 2000, and their testimony indicates significant overall progress. Testimony of Mother, Boucher, Gibowicz.
7
I credit Belmont’s testimony indicating that Student made qualitative gains in a number of areas while attending the Belmont program and assume arguendo that Student would have continued to make similar progress during the academic year if she had stayed in the Belmont program. Testimony of Smith, Smock, Goulder, Dayton; Exhibit S-4. However, there was no persuasive expert testimony that an integrated preschool program for ten hours per week would meet Student’s unique individual needs or would maximize her educational development during the time frame of the most recent IEP.
8
The state special education regulations utilize a regression standard to determine whether a summer program is required. 603 CMR 28.05(4)(d)1. The federal special education regulations employ a FAPE standard. 34 CFR 300.309. I find that Belmont’s proposed summer program fails to meet both of these standards.
9
The applicable regulatory standard regarding extended day provides that a student’s program shall be equal to that of the regular school day unless a “different duration is necessary to provide a free appropriate public education to the student.” 603 CMR 28.05(4)(d). Student meets this standard.
10 The one exception is a letter (not an evaluation report) from Claudio Toppelberg, MD, which made reference to a school day “up to 5PM”, but this letter provides little context or justification for its conclusions, and Dr. Toppelberg did not testify. Exhibit P-25. I therefore give this letter little weight.
11
The IEP is for the period 6/00 to 6/01. Exhibits S-5, P-20. Neither party requested that the Hearing Officer rule on issues related to prospective placement.