COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Student v. Southampton Public Schools
BSEA # 03-0542
DECISION
This decision is issued pursuant to 20 U.S.C. 1401 et seq. (the “IDEA”), 29 U.S.C.794, M.G.L. chs. 30A, 71B, and the Regulations promulgated under those statutes.
A Hearing in the above-referenced matter was convened at the request of the Parties on January 22, 23, 29, February 4, 7, 24 & April 10, 2003, at Catuogno Court Reporting, 446 Main St., Worcester, MA, before Rosa I. Figueroa, Hearing Officer.
Both the Parents’ and the School’s written closing arguments were received on May 14, 2003. The Record closed on May 14, 2003 upon receipt of the Parties’ written closing arguments.
Those present for all or part of the Hearing were:
Student’s Mother
Student’s Father
Claire L. Thompson, Esq. Attorney for the Student/Parents
Dr. Susan McQuiston Pediatric Psychologist, Baystate Medical Center Children’s Hospital
Dora Campbell Speech and Language Pathologist
Paul Brown Speech and Language Pathologist
David Drake Director, White Oak School
Susan Edgerly Admissions Director, White Oak School
Tiffany Drumm Special Education Teacher, White Oak School
Jody Michalski Special Education Teacher, White Oak School
Christine Mazeika Elementary & Special Education Teacher, White Oak School
Dina Rossi Teacher, White Oak School
Denise Gould Norris School Principal, Southampton Public Schools
Jean Khun Norris School Psychologist, Southampton Public Schools
Donald Johnson Director of Pupil Personnel Services, Southampton Public Schools
Regina Williams Tate, Esq. Attorney for Southampton Public Schools
Mary Rivest Norris School Third Grade Teacher, Southampton Public Schools
Mary Catuogno Norris School Student Aide, Southampton Public Schools
Leslie Kish Norris School Occupational Therapist, Southampton Public Schools,
Elizabeth Mullins Norris School Speech and Language Pathologist, Southampton Public Schools
Dr. James Levine Behavioral Consultant, Southampton Public Schools
Pamela Lopez Norris School Speech and Language Pathologist, Southampton Public Schools
Isabel Field Norris School Special Education Teacher, Southampton Public Schools
Susan Medeiros Norris School Special Education Teacher, Southampton Public Schools
Parents’ Exhibits 1 through 28 and School Exhibits 1 through 67 were admitted in evidence and were considered for the purpose of rendering this decision. SE-1 through SE-32, preceding 2001-2002, the Student’s third grade year, were admitted for background information purposes.
ISSUES PRESENTED:
1. Whether the IEP proposed by Southampton Public Schools for the 2002-2003 school year offers Student a Free Appropriate Public Education in the least restrictive environment appropriate to meet Student’s needs in accordance with state and federal special education law. If not,
2. Whether White Oak School was an appropriate placement for Student;
3. Whether the Parents are entitled to reimbursement from Southampton for unilateral placement of Student at White Oak School for the 2002-3003 school year.
POSITION OF THE PARTIES
Parents’ Position:
The Parties do not dispute Student’s entitlement to special education services but view Student’s areas of disability and degree of disability differently. The Parents maintain that Southampton misdiagnosed Student and views his deficits primarily as cognitive and behavioral in nature, while Parents view the disabilities mainly as a receptive and expressive language issue.
The Parents further reject Southampton’s program proposal for the 2002-2003 school year. They assert that the combination pull-out/inclusion program offered by Southampton for Student’s fourth grade was an inappropriate model. Given the increased academic demands inherent in the fourth grade curriculum, Student would likely encounter major issues. According to Parents, Student perceived the pull-outs in the third grade as a “bad thing” and Parents are therefore concerned about the emotional and psychological impact that continued pull-outs may have on Student. As a result of frustration, Student reacts by acting out, requiring implementation of a behavioral plan and assignment of a one-to-one aide. This makes him feel singled out when what he wants most is to be like every other student.
In order to cope with the daily academic/social demands in the fourth grade Southampton recommended continuation of the behavioral plan and assistance by the one-to-one aide. The Parents argue that this in fact renders the program proposed by Southampton more restrictive. Also, at Southampton Student lacks a real peer group. Therefore, the program offered by Southampton for the 2002-2003 school year failed to offer Student a Free Appropriate Public Education.
Parents assert that Student’s complex profile and disabilities call for his participation in a small group language-based program. Since Southampton did not respond to their request to create or locate such a program, Parents unilaterally placed Student at White Oak beginning in the summer of 2002 and seek reimbursement for said placement and transportation.
School’s Position:
Southampton affirms that Student made effective progress during the third grade and that it offered him an appropriate IEP for the fourth grade. This IEP combined participation in an inclusion program and pull-out services in the identified areas of need. Southampton proposed that Student be assisted by an aide and that he be on a behavioral plan to address targeted inappropriate behaviors. Since this IEP offered Student a FAPE, Southampton is therefore, not responsible to reimburse Parents for their unilateral placement of Student at White Oak. It further argues that White Oak is overly restrictive and not appropriate for Student.
FINDINGS OF FACT:
· Born on April 23, 1992, Student is a 10 year old fourth grader receiving services at the White Oak School in Westfield, MA. Student is a resident of Southampton, MA. (PE-10; SE-45) His entitlement to special education services is not in dispute, though the parties disagree as to some of the areas of his disability and the degree of his disability in those areas. (Testimony of Ms. Khun; Mr. Drake, Dr. McQuiston, Ms. Campbell, the Parent) Student presents with severe needs in expressive and receptive language as well as in the social-skills areas. (SE-7; Testimony of Dr. McQuiston, Mr. Drake, Ms. Campbell, Parent)
· As a result of a brain injury, Student suffers from a neuro-developmental dysfunction that affects every aspect of his cognitive ability. (Testimony of Dr. McQuiston) Dr. McQuiston, a pediatric psychologist who has evaluated and observed Student several times since 1996, described him as a “very complex character”. ( Id .) Early on Student presented with severe expressive and receptive language delays, low vocabulary fund (under 10 words), perceptual-motor and cognitive delays, frustration, difficulty managing behavior and the ability to follow only one-step commands. (SE-1; SE-2; SE-4; SE-8) During the pre-school years he progressed in all areas addressed by Southampton and through therapies provided privately by the Parents.1 (SE-14)
· Medically, Student presented with pyloric stenosis, which required surgery at approximately three weeks of age. (SE-13) He developed a staph infection following surgery requiring a lengthy hospitalization. ( Id .) His medical history was also remarkable for mouth breathing and snoring behaviors. (SE-1)
· At age three and a half, he displayed several unusual behaviors including: “nervous, unusual fears, sensitiv[ity], restless sleep, cry[ing] easily, shy[ness], short attention span, demand[ing] attention, frequent temper tantrums, engage[ing] in ritualistic behaviors,(i.e., want[ing] everything exactly as it is initially/routinely presented-cup, plate, and food, and bed linens and pillow always in the same place, lines up objects and dumps things out), and [inability to] play well with playmates.” (SE-1) Early on, he also presented with sensitivity to loud noises, perseveration, low tolerance and aggression. (SE-4) Peripheral hearing was found to be within acceptable levels. (SE-3) Early recommendations were for participation in a full day, very intensive, individualized educational program, with a one-to-one aide, daily small group speech and language therapy and occupational therapy inclusive of summer services. (SE-2; SE-7; SE-8; SE-12; SE-17) Occupational Therapy would address “fine motor skill acquisition, visual perceptual skills, gross motor skills, self-care, eating and drinking, and sensory issues.” (SE-12)
· An initial neurological evaluation performed by Dr. Herbert Gilmore, M.D., dated November 27, 1996, questioned the diagnosis of mental retardation and raised only the possibility of residual autism/PDD. (SE-13; PE-21) In reaching this conclusion he took into account that Student presented with no evidence of language regression and had no history of seizures in the past. ( Id .)
· On October 14, 1997, the Parents accepted the IEP covering the period from June 30, 1997 through June 30, 1998. (SE-18) This 502.8 prototype program IEP offered Student the following services: direct speech-language services outside the regular education classroom from the speech-language pathologist for twenty minutes, two times per week; and home-based speech-language for sixty minutes, once per week; cognitive development two times per week for 20 minutes; and a Friday expansion equivalent to two hours of pre-school programming. (SE-18) The IEP also called for direct services within the general education classroom in the following areas: speech-language for one hundred minutes, four times per week provided by the speech and language pathologist; behavior for 60 minutes, four times per week; social development for 60 minutes, four times per week; cognitive development for 60 minutes, four times per week; and, occupational therapy for forty five minutes, once per week. In addition, consultation was to be provided by the occupational therapist once per week for 15 minutes. (SE-18) Under this IEP Student would be assigned an aide in the classroom who would also provide coverage during lunch and during rest time in a private location. ( Id .) The IEP also called for Student to participate in the 1997 summer school program. ( Id .) The Student Performance profile section states that Student’s “continued growth in his ability to communicate with others has had a direct influence on his behavior in the classroom.” (SE-18)
· According to Southampton, by June 13, 1997 Student had made a year progress in a year’s time and at age 5.2 his receptive language skills were at the 2.3 age equivalent and his expressive language skills were at a 2.5 age equivalent. (SE-18) The evaluation by the Mullins School, performed in June of the same year, found Student’s communication and socialization domains to be at the 1.9 age level, while daily living skills were found to be at the 2.4 age level and motor skills at the 2.11 age equivalent, with scattered visual-perceptual skills ranging from 3 to 5 years, and visual-motor skills equivalent to 3 years of age. (SE-19) The Mullins School staff recommended that Student be enrolled in a small, highly structured, intensive language remediation program and concluded that he “… needs an environment in which language objectives are incorporated in every aspect of his curriculum.” (SE-19) It was also recommended that he receive occupational therapy three times per week for 30 minutes each session, speech and language therapy within his school setting at least five times per week for 30 minutes and that the augmentative communication recommendations from the Collaborative Center for Assistive Technology and Training be implemented. (SE-19)
· The Team met again on December 12, 1997 and the IEP was amended to include additional information regarding opportunities for Student to have lunch with a peer and for the kindergarten children to be supervised by an adult. (SE-20) The amendment was accepted by the Parent on February 6, 1998. ( Id .) On December 16, 1997, Dr. Susan McQuiston found Student to have made progress and to be performing at a 2 ½ to 3 years developmental age range. (SE-21) She recommended participation in a full day kindergarten program for the 1998-1999 school year. (SE-21) Dr. McQuiston also recommended an OT and S&L evaluation prior to developing the kindergarten IEP. ( Id .) During the 1997-1998 school year, Student received individual speech and language therapy at Baystate Medical Center in addition to individual therapy at home twice per week. (SE-23) In April 1998, Valerie Brach-Bonkowski, M.S. CCC/SLP, from Baystate Medical Center, recommended participation of the student in a full day language-based classroom when Student entered kindergarten. She also recommended three 30 minute sessions weekly of individual speech and language therapy in school, weekly consultation with the classroom teacher, provision of a student aide throughout the day, and continuation of S&L services at Baystate Medical Center. (SE-23) Participation in a summer program was suggested to avoid regression by Student. (SE-23)
· On April 7, 1998, the Team convened to draft the IEP covering the period from 9/1/98 to 6/30/99, Student’s kindergarten year. (SE-24) This 502.2 prototype program IEP provided the following services outside of the regular education classroom: speech-language from the speech-language pathologist for thirty minutes, two times per week; occupational therapy for thirty minutes, once per week; and home-based speech-language from Paul Brown for sixty minutes, once per week. (SE-24) The IEP also called for special education staff to provide support within the general education classroom for twenty minutes, five times per week; speech-language therapy for thirty minutes, once per week; and occupational therapy for thirty minutes, once per week. In addition, consultation was to be provided by special education staff for thirty minutes, once per week; consultation by a speech-language pathologist for fifteen minutes, once per week; and consultation by an occupational therapist for fifteen minutes, once per week. This IEP was forwarded to the Parents on October 7, 1998. The copy in evidence was not signed by Parents. (SE-24)
· Isabel T. Field, a special education teacher in Southampton, evaluated Student’s ability to attend to task on 10/21/98. (SE-25; SE-60) Her observation concluded that Student was able to attend to task for up to 20 minutes, depending on his level of interest in the task at hand. Student was viewed by Ms. Field as a member of the kindergarten community, conforming to the rules and routines of the classroom. (SE-25)
· During the period between October 13 and 23, 1998 Jean Khun, Southampton’s School Psychologist, the Student’s classroom teacher and two other adults were asked to observe Student and compile behavioral data that could be used to obtain a baseline. (SE-26; SE-65) Ms. Khun’s Special Review narrative of October 25, 1998, concluded that during the nine days of her observation no instances of inappropriate behavior were observed that required limit-setting or imposing consequences on Student. Also no instances of expressed frustration requiring specific limit setting were observed. (SE-26)
· A Classroom Teacher Assessment, dated April 1, 1999 and progress reports of April 22, 28 and 29, 1999, completed by Ruth Burnett, Student’s classroom teacher and Christina Leavitt, support staff, indicated that Student had made progress generally, and had been cooperative and attentive, although his fine motor skills were weak and the writing process remained his biggest challenge. (SE-27; SE-28; SE-29) Ms. Burnett recommended that Student participate in a summer program to address reading and writing skills. She also opined that Student would require additional support staff within and outside the first grade classroom. (SE-27) Ms. Burnett indicated that Student worked well in a one on one situation, and responded well to rewards such as playing basketball or working on the computer. (SE-27) He also preferred to work in small groups with other students who were not, as he stated, “grumpy, grouchy or whiny.” Ms. Burnett also commented that at times Student refused to work. Time outs however, were seen as worthless as he could sit for hours and never return to the classroom. (SE-27) She also viewed Student as having needs in the social and emotional area. (SE-28) Ms. Burnett also recommended that a behavior plan be put in place for first grade and recommended that Student be transported in a regular bus with his brother and neighbors. (SE-28)
· Student’s Team met on April 30, 1999 to plan for Student’s first grade. This IEP offered Student a 502.2 prototype program IEP covering the period from September 1, 1999 to June 30, 2000. (SE-30) The IEP provided for the following direct services outside of the regular education classroom: language for thirty minutes, two times per week; occupational therapy for thirty minutes, once per week; and math and reading each for thirty minutes, twice per week. (SE-30) The IEP also called for special education staff to provide support within the general education classroom with respect to reading and math each for thirty minutes, six times per week; language for thirty minutes, twice per week; and occupational therapy for thirty minutes, once per week. In addition, academic consultation was to be provided by special education staff for thirty minutes, once per week; and consultation by special education and regular education staff for thirty minutes, once per week. The IEP was forwarded to the Parents on May 19, 1999 and accepted in full on September 12, 1999. (SE-30)
· On January 10, 2000, the Parents were notified of a Team meeting to be held on January 21, 2000. (SE-31) At the Team meeting, an amendment to the IEP covering the period from January 21, 2000 through June 30, 2000, the second semester of Student’s first grade, was discussed. (SE-32) The Team proposed reducing Student’s services in reading, to focus on written language; continuing the pull-out services; discontinuing the O.T. in the classroom but continuing it outside once per week. Southampton provided evidence of Student’s progress and opined that Student no longer needed O.T. services. (SE-32) The IEP amendment provided a new annual goal # 10, addressing writing, and amended the proposed services. The amendment provided for the following services outside of the regular education classroom: language for thirty minutes, two times per week; occupational therapy for thirty minutes, once per week; and math and reading each for thirty minutes, once per week. The IEP also called for special education staff to provide support within the general education classroom with respect to language for thirty minutes, once per week; reading for thirty minutes, three times per week; written language for thirty minutes, three times per week and math for thirty minutes, six times per week. (SE-32) The IEP amendment was forwarded to the Parents on or about March 3, 2000 but was not signed by Parents. (SE-32)
· During the years that Student was educated at Southampton, Student’s Parents provided additional private speech and language services in the home by Dora Campbell and Paul Brown, speech and language pathologists with experience teaching students with a variety of language disorders including non-verbal disabilities. (Testimony of Parent, Dora Campbell and Paul Brown) These services ranged from four to three hours per week up to Student’s third grade. (Id.) Ms. Campbell began servicing Student in August of 2000. (Testimony of Ms. Campbell) She worked on narrative development in the oral and written form, spelling, oral comprehension and social pragmatics. Ms. Campbell also helped Student with homework. She testified that she worked with Student after school and he often expressed his unhappiness in the Southampton school setting. (Testimony of Ms. Campbell)
· Paul Brown began working with Student in November 1996, providing two hours per week of speech and language services in the home initially and then one hour per week beginning in 2000. (Testimony of Mr. Brown) He worked with Student on vocabulary development, semantics, language expansion, syntax, inferencing, oral expression and social pragmatics, an area, which he characterized as a significant weakness for Student. (Testimony of Mr. Brown) Mr. Brown is employed by the Northampton Public Schools as a speech and language pathologist and provides direct instruction to students in settings that include inclusion and pull-out models. (Testimony of Mr. Brown) In his opinion Student required a language-based program with emphasis on pragmatics. (Testimony of Mr. Brown)
· Another Notice of Team Meeting was forwarded on March 21, 2000 calling for a meeting on April 7, 2000. (SE-33) The meeting was later changed due to unavailability of the Parent to a “a time/date to be determined.” (SE-34; SE-35) The team met on April 14, 2000 and discussed increasing the OT to one forty-five minute session once per week outside the classroom, reading/writing three times forty-five minutes per week and adult support in the classroom for all handwriting. Southampton reported continued progress by Student. (SE-35a) Thereafter, a new IEP offering Student a 502.2 prototype program IEP was drafted. (SE-36)
· The IEP covering the period from September 1, 2000 to June 30, 2001 provided for the following services outside of the regular education classroom: reading/language for forty-five minutes, three times per week; communication services for thirty minutes, twice per week; and occupational therapy for forty-five minutes, once per week. (SE-36) The IEP also called for special education staff to provide support within the mathematics general education classroom for forty-five minutes, twice per week. In addition, consultation was to be provided for thirty minutes, twice per month. (SE-36) This IEP, forwarded to the Parents on May 30, 2000, is not signed by the Parents. (SE-36)
· On October 17, 2000, Student’s Mother met with Isabel Field to discuss the Parents’ concerns regarding Student’s behavior and his unhappiness at school. (SE-37) The Parent advised Southampton that Dr. Susan McQuiston would re-evaluate Student and would conduct an observation in the classroom. (SE-37) The Parents were notified that Dr. James Levine, a behavioral consultant, would also observe Student. ( Id .) Dr. Levine’s notes of November 3, 2000 raise the possibility of a diagnosis of Aspergers Syndrome and its possible ramifications. (SE-38) During his half-hour observation, Dr. Levine found Student to be upbeat and appropriate. He attributed parental concerns about Student’s unhappiness in school to a misperception by Student and the Parents. (SE-38) Paul Brown’s recommendation that behavioral plan rewards be given in short increments during the day as opposed to waiting until the end of the day were also discussed. (SE-37)
· Denise Gould, Southampton’s Norris School Principal, responded to Parents’ request to move Student to a different classroom via letter of November 7, 2000, in which she suggested that the Team, inclusive of Dr. McQuiston, discuss the move. (SE-39) The letter indicated that Student’s behavior had improved over the previous several weeks. (SE-39) The Parents responded on November 8 th by raising concerns regarding (1) Student’s difficulty transitioning into school at the beginning of that school year, (2) Student’s regression, including his talk of not wanting to live anymore, (3) the involvement of James Levine, (4) the lack of a behavior plan (Parents indicated that they would reject the IEP until a comprehensive behavior plan could be instituted), and (5) Parents’ inability to impact the teacher selection process. (SE-40) The progress reports for the first and second quarter of the 2000-2001 school year show that the only goal Student had achieved during that period was tying his shoes 100% of the time, while continuing to work on all other goals. (SE-41)
· Between December 2000 and March 2001, at parental request, Dr. McQuiston, re-evaluated Student, and observed him at school on December 5, 2000. (SE-42) The rest of her evaluation was conducted on February 5 and 13, and March 15, 2001. (SE-42) The purpose of her evaluation was to assess Student’s then current levels of psychoeducational and behavioral functioning and ascertain his future needs. (SE-42) Dr. McQuiston reported that Student had continued to make steady developmental and academic progress within an inclusion setting. She further concluded that Student’s cognitive-developmental skills were approximately two standard deviations below the mean for his age, with relative strength in the verbal domain and relative weakness in perceptual performance abilities (especially with non-verbal tasks); academic functioning was generally keeping pace with measured cognitive potential, with most achievement skills estimated at the upper first/beginning second grade level (Student was tested while in the second grade). His psychoeducational profile reflected significant difficulty with verbal comprehension, abstract verbal and non-verbal reasoning, and written expression. (SE-42) He also demonstrated weaknesses with “perceptual organization, visual-spatial awareness and visual-motor integration” and with “short and long-term auditory/verbal memory.” (SE-42) The results of the Wechsler Individual Achievement Test (WIAT) found his overall reading achievement and specifically his spelling skills to fall in the low average range for grade placement. (SE-42) He was found to have a good fund of concrete information, but application of acquired information to new contexts and abstract verbal reasoning were difficult for him. He did not demonstrate the ability to tell time, recognize coins or to make calculations involving money. The weakest area for Student was comprehension of auditory verbal information, which was found to be at the beginning kindergarten level. (SE-42) According to Dr. McQuiston, this compromised Student’s “ability to listen and follow multi-step directions in a classroom, attend to a story and respond to questions about it, and process new information in the context of oral teaching.” (SE-42) In the Woodcock- Johnson Test, he evidenced difficulty with the grapho-motor and expressive language components of the tasks. (SE-42)
· Dr. McQuiston opined that Student, then nine years of age, would continue to require an intensive and individualized educational program, including the following:
1. For the next academic year, an inclusion classroom which offers a low pupil:teacher ratio and both the structure and flexibility Student needs to participate in a regular education setting. A special education teacher or inclusion specialist should be available to coordinate the educational team, train and supervise the paraprofessional, work with the modifications, provide direct services to Student, and serve as a consultant to parents and staff. Curriculum modification and classroom accommodations will be needed in third grade, consistent with Student’s then current level of psycho-educational functioning.
2. An individual (1:1) paraprofessional to work with Student and the teaching staff to ensure his full inclusion, particularly in third grade where content will be more abstract, comprehension demands will be greater and volume of written output will be significantly increased.
3. Identification of a “circle of friends” who will be in Student’s class from year to year for the purpose of supporting full inclusion and his positive sense of self.
4. Ongoing efforts to challenge and support Student’s independence in daily living at home.
5. Increased occupational therapy services because Student’s non-verbal, perceptual organizational skills, as well as his graphomotor skills, are significantly weaker than his verbal skills.
6. A summer educational program, including speech/language and occupational therapy, for academic reinforcement and to prevent skill regression. (SE-42)
· On April 4, 2001, a Pupil Review Meeting regarding Student took place. (SE-42a) The meeting was attended by Ms. O’Reilly, the classroom teacher, Ms. Catuogno, the Student’s aide, Ms. Ashley, the special education director, Ms. Kuhn, the school psychologist and Dr. Levine, the behavioral specialist retained by Southampton to develop a behavioral plan for Student. The meeting addressed the Parents’ concerns regarding Student’s behavioral issues in school, which included task avoidance, task refusal and tantrum behaviors. (SE-42a)
· Father testified that the disparity between the curriculum demands and Student’s functioning increased during the second grade. During that time, Student’s behaviors became increasingly inappropriate and prevalent. (Testimony of Father) The Parents observed Student’s increased reluctance to get dressed and ready for school, to attend school, and reluctance to eat lunch at school. (Testimony of Father) He frequently broke down in tears or “shut down” and asked not to return to school. (Testimony of Father)
· On August 8, 2001, both of the Parents, Dr. Levine and Ms. Kuhn met to address the Parents’ concerns regarding lunch issues. (SE-43) The Parents indicated that they wanted their son to continue to be supervised by a lunch aide. Dr. Levine suggested that Southampton continue to do what had worked in the past and then re-evaluate and adjust the program depending on Student’s progress. It was agreed that the IEP would be adjusted to reflect supervision of Student during lunch. (SE-43)
· An undated Behavior Plan for Student appeared as SE-59/ PE-10. This behavior plan stated that the plan was to be used as a “teaching tool,” and is to be used “constantly to teach social skills.” (SE-59, PE-10) The goals of this plan were for Student to follow directions and be respectful. To achieve this, the plan provided for the following rewards: computer time, and “tangibles (i.e., stickers, pencils, etc.)”, with reward time to last no more than ten minutes, when he earned at least 75% of his checks. (SE-59; PE-10) The plan further provided a process for weaning Student from the behavior plan. This would be achieved by using the rewards twice per day during the first two weeks and cutting back to one reward when Student was able to explain why he earned or missed the checks, until he was totally off the plan. (SE-59; PE-10)
· The IEP covering the period between September 1, 2001 and June 30, 20022 , labeled “draft,” offered the following direct services outside of the regular education classroom: language arts for forty-five minutes, four times per week; speech-language services for thirty minutes, twice per week; and occupational therapy for forty-five minutes, once per week. (SE-45; PE-13) This IEP also called for special education staff to provide support within the mathematics general education classroom for thirty minutes, twice per week. In addition, consultation was to be provided for fifteen minutes, once per week. The box for extended year program is checked suggesting that Student should participate in a summer program. (SE-45; PE-13; see also SE-44, PE-12 Student’s daily schedule for the 2001-2002 school year) This draft IEP was subsequently altered to include thirty minutes of occupational therapy once per week to be provided as a direct service in the general education classroom setting. (PE-13) Neither SE-45 (the draft IEP) or PE-13 inclusive of the occupational therapy services, indicates the date in which the IEP was forwarded to the Parents or the Parents’ decision concerning the IEP. (SE-45; PE-13)
· On March 18, 2002, Dr. McQuiston wrote to the Parents informing them of her discussion of Student’s situation with a colleague who specialized in Neuropsychology. (PE-15) After reviewing test results from Dr. McQuiston’s previous evaluations of Student, she and her colleague agreed that further cognitive-intellectual testing of Student may not be helpful in determining whether a given specialized educational program or school would be appropriate. (PE-15) Dr. McQuiston opined that the best approach would be to share the most recent educational achievement and speech-language evaluations with prospective schools because they provided the best description of Student’s learning strengths and needs. (PE-15) It was her position that the achievement testing from February 2001 clearly showed Student’s specific areas of strength and weakness. Given those, he would benefit from a program run by special educators and geared toward children with specific learning difficulties. (PE-15) Finally, she opined that it was “fair and appropriate” to say that intelligence test results had not been particularly good predictors of Student’s academic achievement skills. (PE-15)
· Isabel Field’s Progress Reports for the 2001-2002 school year and evaluation report dated December 10, 2001 and March 14, 2002, indicated that Student was reading within a second grade range and had begun to read independently when given a reading task. (SE-46; PE-18) When listening to stories he was observed to be developing a better sense of the motivation and feelings of the characters but required many prompts to relate information or retell a story, he could do it when he developed a visual prompt. His writing also improved, as he was increasingly able to accurately place the letters on the lines more often. Cursive writing was introduced. Copying designs or shapes continued to be challenging to Student. The report noted that Student was experiencing success in working on multiplication in the classroom, and was able to use multiplication within word problems. (SE-46)
· Also in March 2002, Isabel Field conducted an educational evaluation of Student while he was in third grade. (SE-46; PE-18) Her report indicated that the most striking difference seen that year in special education small group reading was Student’s ability to independently accept a reading assignment and actively engage in reading. (SE-46; PE-18) The report also noted that Student’s performance on the reading portions of the Weschler Individual Achievement Test indicated that Student was reading at the 42 nd percentile (58% of his third grade peers were reading at a higher level, and 41% were reading at a lower level.) His word reading sub-test was 73%, while his comprehension sub-test score was 32%. The evaluation further reported that Student’s overall performance score in mathematics was 21% (below average), with sub-test scores of 21% on reasoning and 19% on addition, subtraction and multiplication. Student’s overall language score was found to be 13%, reflecting a score of 30% in the listening comprehension sub-test and a score of 10% in the oral expression sub-test. His overall writing score was 66%, reflecting a score of 66% on the written expression sub-test and a score of 61% on the spelling sub-test. (SE-46; PE-18) The evaluation also included selected sub-tests of the Gray Oral Reading Test. The report concluded that Student’s “reading was almost flawless with single reading errors on each of the final three reading passages.” The sub-tests indicated that Student scored 9% in comprehension, placing him in a second grade reading range. Other sub-tests were decoding (score of 75%), word attack (score of 63%), and word indentification (score of 16%, placing him within the third grade range of performance). (SE-46; PE-18) The summary portion stated that Student’s weakness in the area of comprehension caused his overall reading score to fall within the low average range; that Student was reading fluently on a daily basis as well as decoding multi-syllable words and demonstrating comprehension for new terms and factual information. The summary also stated that it was difficult for Student to generate information about a story or passage if it was not directly stated in the text; that he had responded positively to instruction in the special education classroom with his level of participation and enthusiasm for reading and learning new information; and that he would benefit from continued support in reading and math and from assistance in developing his written language skills. (SE-46; PE-18)
· On March 24, 2002, Dora Campbell, MA CCC-SLP, performed a Speech and Language Evaluation. (SE-47; PE-16) This evaluation concluded that Student had “significant problems with language,” with these difficulties affecting his achievement in reading, writing and spelling. The report noted that although previously diagnosed with an underlying phonological awareness deficit, Student was showing a relative strength in that area. However, the report further explained that Student revealed a “severe weakness” in semantics and comprehension; that word identification and sight-symbol processing (tasks that involve underlying phonemic awareness skills) were below average; that oral and written language narratives were “significantly delayed”; that difficulties in sequencing were evident in phonemic awareness tasks; and that written expressive language appeared to be “most problematic”. Ms. Campbell further opined that all of these language deficits carried over into Student’s ability to process information in his everyday life, with the result that pragmatic skills were affected. (SE-47; PE-16) Ms. Campbell concluded that in light of fourth grade language expectations (requiring narrative skills at the complete episode level), it was “highly recommended” that Student participate in a speech and language therapy program two to three times per week for sixty minutes per session. She recommended that Student’s therapist be knowledgeable in phonemic awareness and narration. (SE-47; PE-16) The report further recommended that Student’s academic instruction be provided within a language-based classroom, with instruction that was multi-sensory and directly related to his language goals; and that he receive instruction in pragmatics with a small group of his peers. (SE-47; PE-16) In addition, the report concluded that Student’s language formulation, retrieval and organization were “impaired”, and that this “significant language deficit” impacted his academic and social skills. (SE-47; PE-16)
· Leslie K. Mish, OTR/L, performed an Occupational Therapy Evaluation on March 28, 2002. (SE-48; SE-66; PE-20) Ms. Mish provided occupational therapy to Student at Southampton, since Student was in pre-school. ( Id .) She concluded that Student’s strengths lie in the areas of visual perception skills (42 nd percentile), manuscript handwriting (total letter legibility 91%), numeral legibility (94%) and social skills. Her report noted that although cursive letter formation has been learned well, Student continued to struggle with cursive handwriting, particularly the size, spacing and pressure on the paper. Fine motor skills remained in the below average range given Student’s age (12%) although the evaluator did not believe that this score was a true indication of Student’s abilities. (SE-48; PE-20) Ms. Mish recommended that teachers monitor all written material for accuracy, kept copying tasks to a minimum and that Student’s Team discussed continuation of occupational therapy. (SE-48; PE-20) She also made several specific recommendations including that directions be given in a variety of ways to assist with comprehension; that he be given more time to process information before being expected to write or give an oral response; that a multi-sensory approach be used when introducing new material as he needed repetition; and that graphic organizers and menu style lists be used to help him organize and complete multi-step tasks. (SE-48; PE-20)
· Betsy Mullins, M.Ed., CCC/SLP, performed a Communication Assessment on April 7, 2002. (SE-49; PE-17) Her summary indicated that Student’s language evaluation revealed “significant progress in learning many language skills”. The report noted that he had learned many language concepts and vocabulary and had increased the structure of his language significantly. (SE-49; PE-17) However, Ms. Mullins also noted that Student’s understanding of isolated vocabulary and his ability to form more advance semantic relationships were still significantly below average for his age; his rote auditory memory was in the low average range, but he had much more difficulty understanding and interpreting information that was in context. (SE-49; PE-17) In the narrative skills section of the report, Ms. Mullins stated that when Student was read a short story “he was able to introduce the character and something about him, but did not express the setting or problem of the story. He proceeded to express a basic sequence of events leading to the ending, but he left out many important details. Following [Student’s] retelling, he was asked some comprehension questions about parts of the story that he omitted. He did not respond to any correctly. He did not understand the story problem and was not able to form a relationship between the end of the story and the beginning, therefore missing the cause/effect relationship in the story. In addition, [Student] was unable to recall some important details.” (SE-49; PE-17) According to Ms. Mullins, Student performed better when stories were read to him and the vocabulary and content of the story were discussed as the story progressed. ( Id. ) Student’s understanding of isolated vocabulary (PPVT) as well as his ability to form more advanced semantic relationships (The Word Test) were found to be below average for his age. (SE-49; PE-17) Without teacher prompts, he gave short sequenced responses that lacked detail. Ms. Mullins explained that this inability to form semantic relationships as well as interpret information would impact directly on Student’s ability to learn new concepts and information in all of his school subjects, especially in fourth grade social studies and science. He also had great difficulty in expressing what he knew and /or relating his personal experiences orally as well as in writing. (SE-49; PE-17) Therefore, the main concepts from each unit would have to be isolated, explained, clarified, and repeated to ensure basic understanding. She also stated that Student may need to demonstrate his understanding through modified tests or oral responses. (SE-49; PE-17) Ms. Mullins recommended that Student continued to receive language services for thirty minutes, two times per week, with emphasis on continued semantic development, interpretation of oral information and oral expression of more complete narratives and learned information. (SE-49; PE-17) Ms. Mullins noted Student’s growth in the area of social relationships but commented that if Student was in a bad mood or if something did not go his way he would not be able to use social language to express his feelings or his needs. (SE-50; PE-19) Picture cards proved helpful in those instances. (SE-50; PE-19)
· On behalf of Southampton, Jean Kuhn, NCSP, performed the Psycho-Educational Evaluation on April 7, 2002. (SE-50; PE-19) The evaluation noted that Student appeared to have made “great progress” in third grade, had become much more integrated in his classroom community (establishing friendships and participating in most classroom activities) and academically made progress except in areas that required abstract verbal and non-verbal reasoning which continued to be problematic. (SE-50; PE-19) Ms. Khun found that Student’s cognitive testing continued to indicate low-average verbal abilities with stronger concrete than abstract reasoning skills; visual motor and spatial/perceptual skills remained areas of significant weakness; his performance on a reading inventory suggested stronger decoding than comprehension skills; and listening comprehension skills appeared weakest. (SE-50; PE-19) Student “continued to have days where it was more difficult for him to focus, stay on task and be compliant…” but appeared to be motivated to participate in activities with typical peers and do what other students appeared to be doing. Ms. Khun stated in her report that Student will require an adapted curriculum in order to be successful in the fourth grade. (SE-50; PE-19) In Ms. Khun’s opinion, Student should be able to participate in the regular program “to a degree” with modifications to the amount and nature of work he was expected to complete. The criteria for successful progress in academic areas would also have to be adjusted. (SE-50; PE-19) Ms. Khun recommended that a classroom aide would need to be available to assist Student when necessary and to support the behavior program which would continue in its present form at least through the first part of the fourth grade year. (SE-50; SE-19) Finally, the report noted that much of Student’s growth came in the area of social relationships. (SE-50; PE-19)
· Mary Rivest completed the Classroom Teacher Assessment on April 10, 2002. (SE-51; SE-67; PE-14) The assessment stated that Student functioned best when his day was predictable and that he had difficulty when there were too many changes in his routine. He was observed to shut down when he perceived that a task could be too difficult and was more willing to try something new if it was made apparent that he could be successful at it. Ms. Rivest concurred with other evaluations that Student’s areas of strength were in decoding, spelling and with rote facts in Math. (SE-51; PE-14) Academically, he demonstrated some growth but functioned in the low range in several areas. (PE-14) He was seen as having difficulty “seeing the big picture” as well as with drawing inferences. ( Id. ) Emotional growth had been observed but he still overloaded occasionally, and was still observed to struggle with certain social situations. (PE-14) Emotional breakdowns occurred when he got over-stimulated and as of May of 2002 he still needed to follow a behavioral plan. Ms. Rivest recommended that he be provided a “carefully orchestrated parallel academic curriculum” the following year, “to allow him to be successful in the increased academic expectations inherent in grade four.” (PE-14)
· Student’s Team met on April 12, 2002 to discuss the district’s re-evaluations and services for the 4 th grade. (SE-52) Both Parents were present at the Team Meeting. (SE-52)
· During the spring of 2002 the Parents asked that Southampton create or locate a self-contained language-based classroom for Student within a public school setting. (Testimony of Father, Ms. Field) Student had experienced difficulty transitioning into third grade and had exhibited the same behaviors as had been observed during the second grade. (Testimony of Father) He refused to eat breakfast, get ready for school and made comments such as “why am I always the last one?” or “I never have the right answer.” (Testimony of Father) Student had a very strong desire to appear like his peers and felt singled out by the presence of the aide and by being pulled-out, something he perceived as punishment or “something bad.” During the school year he became stressed and underweight but ate more normally during vacations. (Testimony of Father) He experienced sensory overload during large assemblies or periodically during school lunch. (Testimony of Father, Ms. Catuogno) While Student had a better year during third grade, and liked his teacher, the pull-out/inclusion model remained inappropriate for Student. (Testimony of Father) At this point, Dr. McQuiston and Paul Brown, recommended that Student participate in a self-contained program. (Testimony of Father)
· On or about April 25, 2002, Southampton forwarded to the Parents the IEP for the period covering September 3, 2002 through June 30, 2003, Student’s fourth grade. (SE-54; PE-9) The IEP’s Administrative Placement Information sheet lists the Student’s primary area of disability as Intellectual and checked a 502.2/502.3 prototype program under the Federal Child Count Setting. (SE-54; PE-9) This IEP offered Student placement at the Norris School with the following services outside of the regular education classroom: language arts for forty-five minutes, five times per week; speech-language services for thirty minutes, twice per week; and occupational therapy for thirty minutes, twice per week. (SE-54; PE-9) The IEP also called for the following special education services within the general education classroom: support from special education staff within the mathematics general education classroom for forty-five minutes, five times per week; and occupational therapy for thirty minutes, once per week. In addition, consultation was to be provided as follows: consultation by “staff” for fifteen minutes, once per week; and academic consultation by “SPED STAFF/TEAC” for forty-five minutes, once per week. (SE-54; PE-9; see also Southampton’s Elementary Schools’ proposed daily schedule for the 2002-2003 school year, Student’s 4 th grade 2002-2003, SE-56; PE-11) This IEP also offered Student participation in a summer program to avoid regression. On April 29, 2002 the Parents rejected the IEP program and placement and notified Southampton of their intentions to proceed to hearing (SE-54; PE-9)
· Student’s Progress Reports for the period ending June 14, 2002 discussed the growth demonstrated in acquisition of new vocabulary, decoding, and with the mechanics of writing. (SE-55) It states that Student needed continued work in the narrative form when retelling a story and required a myriad of tools for organization of ideas when expressing himself in writing. (SE-55) The reports further indicate that Student responded well to the behavioral plan and that it helped shape more positive interactions within the special education setting. (SE-55) In math he made some gains in addition and subtraction but still had difficulties with multi-digit number problems, he understood the concept of multiplication but had great difficulty with word problems. (SE-55) The Father however, described Student as depressed, despondent and unhappy. (Testimony of Father)
· Dissatisfied with the Southampton Program, Parents notified Southampton via letter of June 16, 2002 of their intention to enroll Student at the White Oak School (hereinafter, “White Oak”) effective on or before September 2002, and seek reimbursement from Southampton for this educational placement. (PE-6) The date of delivery of their certified letter was June 18, 2002. (PE-6) On July 1, 2002, Student began attending White Oak’s summer program. (PE-5; Testimony of Parent; Ms. Edgerly) Southampton responded via its attorney on June 24, 2002, denying any responsibility for Student’s placement at White Oak. (PE-7) The Parents’ decision to enroll Student in White Oak was confirmed by them on July 25, 2002. (PE-8; PE-22)
· Susan Edgerly, Assistant Director of White Oak, testified that White Oak is a Chapter 766 approved school located in Westfield, Massachusetts. (Testimony of Susan Edgerly) It offers language-based programs designed to develop all aspects of oral and written language expression in children with learning disabilities. The staff is trained to use a common language and structure which helps students access information in a skill-based approach. Instruction focuses on oral and written expression, pragmatics, decoding and language comprehension. These skills are addressed throughout the day across the curriculum providing a cohesive, coordinated program by an extensively trained staff. (Testimony of Ms. Edgerly) Each class is comprised of six to eight children who share similar skill levels. There is no more than a two-year age difference between students in each class. The make-up of a group is re-examined each year to ensure homogenous groupings. (Testimony of Ms. Edgerly) Each student is given informal testing when they arrive and an individual program is then created based on the result of the test. The school follows the Massachusetts’ State Curriculum Frameworks. The staff meets on a daily basis. (Testimony of Ms. Edgerly)
· During the summer of 2002, the Student participated in White Oak’s Summer Program. (PE-5) The program ran from 8:30 a.m. to 11:30 a.m. daily for six weeks between July 1 and August 9, 2002. (PE-5) It offered each student a one-to-one literacy skills tutorial using an Orton-Gillingham based approach and instruction in two of three subjects including Math, Language Arts and Study Skills depending on the student’s needs, in a language-based classroom. (PE-5) Student’s one-to-one tutorial focused on basic literacy skills. (PE-5) He was found to be adept at decoding monosyllabic words; completed his Let’s Read exercises with little difficulty; “had little difficulty answering comprehension questions; and was particularly adept at identifying the main idea of a reading passage.” He was found to need little assistance to keep himself organized. (PE-5) In math Student’s class focused on maintaining basic math skills taught during the school year. (PE-5) The progress notes state that Student did not know his multiplication facts and time was spent reviewing the process of multiplication. He had a great deal of difficulty solving word problems without teacher prompting and assistance but over the course of the summer he was able to solve simple word problems with less difficulty. He however, was able to follow directions and measure ingredients with direct teacher instruction and assistance. (PE-5) Student’s language arts class focused on written expression and literacy analysis. Student was able to answer oral questions accurately after a day’s review of a story, could punctuate different sentences accurately after review and practice, and was able to work well on a project involving a teacher-generated model of a basic paragraph. (PE-5) The summer program is very similar to the regular school year program except that the class size (three to four students) is smaller in the summer. (Testimony of Ms. Edgerly) At White Oak the rate and pace of instruction is modified to meet students’ individual needs. (Testimony of David Drake)
· During the School year each day at White Oak starts with a morning meeting at 8:30 a.m. followed by seven 50-minute teaching blocks. (Testimony of Susan Edgerly) Students receive instruction in language arts, math, science, social studies oral expression and an individual tutorial in written language and reading. They also have physical education, woodshop, home economics, art and keybording. (Testimony of Susan Edgerly) School ends at 3:30 p.m., but students stay for after school extra-curricular activities such as Chess Club (in which Student participates). After school, Student participates in basketball, chess club and art club. (Testimony of Ms. Michalski) Student’s class schedule for the 2002-2003 school year can be found at PE-4. Each day the classes begin with a review of the previous day’s homework, followed by a warm-up exercise and then the lesson for that day is conducted. This is followed by a practice session and then the following day’s lesson is previewed. (Testimony of Susan Edgerly) Teachers use a variety of organizational and instructional strategies including a form of Story Grammar Marker, the “who, what, when, why and where structure”, the “first, next, then, and after sequencing of instruction”. (Testimony of Susan Edgerly)
· Ms. Susan Edgerly testified that prior to admission, Student spent one day at White Oak. She reviewed Student’s previous testing and found that Student’s scores in certain portions of the CELF indicated that his actual abilities were higher than suggested by earlier intelligence tests. (Testimony of Susan Edgerly)
· Following the summer, White Oak drafted a preliminary IEP for the period 9/02 to 11/02. (PE-2) This IEP provided for the following services: reading tutorial for fifty minutes, five times per week; language arts for fifty minutes, five times per week; math for fifty minutes, five times per week; science for fifty minutes, five times per week; social studies for fifty minutes, five times per week; oral expression for fifty minutes, five times per week; expanded arts/computer for fifty minutes, two or three times per week for half the year; and physical education for fifty minutes, two or three times per week. (PE-2)
· In November 2003, White Oak drafted an IEP for Student for the period covering November 2002 to June 2003. (PE-1) The IEP provided for the following services: reading tutorial for fifty minutes, five times per week; language arts for fifty minutes, five times per week; math for fifty minutes, five times per week; science for fifty minutes, five times per week; social studies for fifty minutes, five times per week; oral expression for fifty minutes, five times per week; expanded arts/computer for fifty minutes, two or three times per week for half the year; and physical education for fifty minutes, two or three times per week. (PE-1) The goals and objectives in this IEP are more detailed than in the previous White Oak IEP.
· Ms. Tiffany Drumm, Student’s oral expression teacher, Ms. Jody Michalski, the science teacher, and Ms. Christine Mazeika, the math teacher, are all certified elementary school and special education teachers. (Testimony of Ms. Drumm, Ms. Michalski, Ms. Mazeika) In her class, Ms. Drumm emphasized auditory comprehension, sequencing, social pragmatics, dialogue, characters, plot development, and analysis of passages in literature. She also worked on vocabulary development, especially vocabulary from literature used in the language arts program. (Testimony of Ms. Drumm) In science class, Ms. Jody Michalski used a skill-based hands-on approach to learning. (Testimony of Ms. Michalski) She combined the State Curriculum Framework with skill remediation and like other teachers in White Oak, used “two-column note-taking”, color-coding, scaffolding, warm-up sessions, and other techniques to facilitate learning science facts through the development of skills. (Testimony of Ms. Michalski) In math, Ms. Mazeika, also follows the State Curriculum Framework. (Testimony of Ms. Mazeika) Since math skills are spiral, the skills build upon each other, her class started by reviewing addition and subtraction and then progressed onto double digit multiplication, time, money, oral problems and math vocabulary. (Testimony of Ms. Mazeika)
· Ms. Drumm and Ms. Michalski testified that in the beginning of the year Student was reluctant to participate in class, became upset easily, interrupted frequently, did not like to be called upon, refused to answer or responded with negative comments, muttered under his breath, or gave “off the wall answers”. (Testimony of Ms. Drumm; Ms. Michalski) He would also make self-deprecatory comments such as “I’m a bad kid.” (Testimony of Ms. Michalski) By the beginning of the second semester he was more motivated, volunteered to get up in front of the class and give presentations, raised his hand, appeared more comfortable and significantly happier, took risks more readily, and was more outgoing. (Testimony of Ms. Drumm; Ms. Michalski, Ms. Mazeika) All of the students in his class have similar skills and have difficulties with sequencing, pragmatics and verbalizing appropriately. (Testimony of Ms. Drumm) Ms. Drumm stated that by the time of the hearing, during each class, Student responded to three or four questions regarding character traits, plot and setting, and provided details to the story discussed. She, Ms. Michalski and Ms. Mazeika testified that Student raised his hand, helped his classmates and worked in partnership with them. He was more tactful when dealing with classmates, and demonstrated growth in dealing with inferential questions. He excelled in the computer. (Testimony of Ms. Drumm, Ms. Michalski, Ms. Mazeika) In math, Student even asked for more challenging problems and was willing to stand in front of the class and create word problems. Although he used to hate multiplication, by the second semester he readily did multiplication. (Testimony of Ms. Mazeika) Academically, he progressed at the same rate as his classmates and displayed growth in his socio-emotional skills. (Testimony of Ms. Michalski) Student’s teachers were of the opinion that he benefited from the overall structure, routine, approach and strategies used in White Oak. (Testimony of Ms. Michalski, Ms. Mazeika)
· According to White Oak personnel, Student has not required OT services and has thrived in key-bording. (Testimony of Susan Edgerly)White Oak School Tutorial and Progress Reports for the 2002-2003 school year note the progress made by Student in all areas. (PE-3) According to Ms. Edgerly, the entire White Oak program is consistent with the recommendations of Ms. Dora Campbell, the speech and language pathologist who offers Student speech and language services in the home. (PE-16; Testimony of Susan Edgerly, Ms. Campbell)
· The Father testified that while Student manifested some behavioral issues during a short transitional period into White Oak, he was able to handle the academic demands. (Testimony of Father) Student gained 12 pounds between September 2002 and March 2003. (Testimony of Father) The Parents noted a remarkable change in Student’s affect and self-esteem since he began attending white Oak. He was eager to get dressed and ready for school, had developed a number of friendships, and asked to stay after school to participate in clubs and activities. (Testimony of Father and Mother)
CONCLUSIONS OF LAW:
No dispute exists between the Parties that Student has disabilities that fall within the purview of 20 U.S.C. § 1401 et seq . and M.G.L. 71B. While his entitlement is not disputed the Parties see the extent and areas of disability somewhat differently. (SE-53)
The Parents see Student as having a specific language disability while Southampton sees his primary disability as cognitive developmental delays. While Southampton recommends that Student be educated in an inclusion model, the Parents believed that Student’s needs would be more appropriately met in a language-based program at White Oak. Disagreeing with Southampton’s recommendations, the Parents provided written notice to Southampton and placed Student in White Oak for the 2002-2003 school year. They now seek reimbursement for the expenses associated with this placement. Upon careful consideration of the arguments proffered by the Parties I find for the Parents. White Oak was the least restrictive appropriate placement for Student for the 2002-2003 school year. My reasoning follows:
Student presents with language delays that affect development of both the spoken and written language. (Testimony of Ms. Campbell) He has severe weaknesses in comprehension, semantics, and with oral and written language narratives. (Testimony of Ms. Campbell) His weaknesses affect reading, writing, and spelling. Mr. Brown was of the opinion that Student’s learning disorder was language-based rather than cognitive in nature. (Testimony of Mr. Brown) Additionally, social pragmatics has been identified as a significant area of need. Concerns have been raised regarding Student’s socio-emotional welfare and the impact his disabilities have on his self-esteem. (Testimony of Mr. Brown, Ms. Campbell, Dr. McQuiston)
Southampton’s Program and Student’s Academic progress:
At Southampton, Student was educated in an inclusion program where he spent most of the day being educated in a regular education classroom with approximately 20 to 23 other students. (Testimony of Ms. Rivest, Ms. Catuogno) During the third grade he was assigned an aide who accompanied him and assisted Student with academics as well as in controlling his inappropriate behaviors. (Testimony of Ms. Catuogno) The evidence shows that Student made academic progress during the 2001-2002 school year, his third grade. (SE-55) The question is whether the inclusion program proposed by Southampton for Student’s fourth grade would have allowed him to make “effective progress.”
There is no question that Student’s overall performance improved between the second, third and fourth grade years. During an observation conducted by Dr. McQuiston in 2001, Student’s second grade, she noted that Student “raised his hand to answer a question but, when called upon he could not respond.” During another group activity, he “appeared variably attentive to the discussion, sometimes repeating remarks made by other students, but without offering comments of his own…when left alone, however, [Student] seemed unable to work on a task independently.” (SE-41) Generally, these difficulties persisted during the third grade, albeit to a lesser degree.
During the 2001-2002 school year, Student’s reading performance was between the second and third grade level improving in reading fluency and decoding and in vocabulary development. (SE-46; SE-55) In writing, spelling, capitalization and punctuation as well as letter size, formation and spacing of letters, also improved. ( Id .) Some progress was made in math but this remained a challenge. (SE-41) Student continued to have difficulty with reading comprehension. (SE-46; SE-55) His I.Q. testing results between tests administered in 2001and 2002 also showed improvement. In 2001 he obtained a 79 verbal, 62 performance and 68 full scale score versus a 88 verbal, 66 performance and 75 full scale score in 2002. Dr. McQuiston found that Student had significant difficulties “with both the expressive language and graphomotor components” of tasks. (PE-18) The areas of speech and language weaknesses identified by Ms. Campbell, Ms. Khun and Ms. Mullins were similar and they concurred that the higher level thinking skills and more complex language demands in the fourth grade would be difficult for him. They also concurred that Student has had a history of difficulty with pragmatics and the associative use of language.
Ms. Khun opined that Student’s cognitive testing continued to indicate low-average verbal abilities with stronger concrete rather than abstract reasoning skills; visual motor and spatial/perceptual skills remained areas of significant weakness, his performance on a reading inventory suggested stronger decoding than comprehension skills; and his listening comprehension skills appeared weakest. (SE-50; PE-19) Dr. McQuiston testified that cognitive-intellectual testing of Student was not helpful in determining whether a given specialized educational program or school would be appropriate and that the best description of Student’s learning strengths and needs was his educational achievement and results of his speech and language evaluations. (PE-15) She opined that intelligence test results had not been particularly good predictors of Student’s academic achievement skills. (PE-15; Testimony of Dr. McQuiston) In this regard, Dora Campbell opined that Student’s language formulation, retrieval and organization impairment significantly impacted Student’s academic and social skills. (SE-47; PE-16)
For Student’s fourth grade Southampton offered Student participation in a very similar program to that offered during the third grade as described in the Finding of Facts section of this Decision. Southampton’s IEP for the 2002-2003 school year offered Student participation in an inclusion program at the Norris School. (SE-54; PE-9) The IEP continued to list Student’s primary area of disability as “Intellectual”. (SE-54; PE-9) The IEP offered Student the following services outside of the regular education classroom: language arts for forty-five minutes, five times per week; speech-language services for thirty minutes, twice per week; and occupational therapy for thirty minutes, twice per week. (SE-54; PE-9) The IEP offered support from a special education staff within the regular education mathematics classroom, and occupational therapy for thirty minutes, once per week. In addition, consultation was to be provided to and among the staff for a total of 45 minutes per week. (SE-54; PE-9) The IEP provided participation in a summer program to avoid regression.
Ms. Campbell had recommended that Student receive speech and language therapy, two to three times per week for 60 minutes per session and that he participate in a small group for instruction in pragmatics. (SE-47; PE-16; Testimony of Ms. Campbell) In contrast, Ms. Mullins recommended that Student receive speech and language services for thirty minutes twice per week. Southampton incorporated Ms. Mullins recommendation into the 2002-2003 IEP. (SE-54; PE-9) Ms. Campbell recommended that Student be instructed within a language-based classroom where instruction was multi-sensory and directly related to language goals. Southampton witnesses testified that both Ms. Field and Ms. Rivest used story grammar markers, scaffolding and graphic organizers to assist Student in developing narrative skills. (Testimony of MS. Rivest, Ms. Madeiros) According to Southampton, the fourth grade regular education classroom was highly language-based and multi-sensory. (Testimony of Ms. Medeiros, Ms. Gould and Ms. Mullins) The Parents disagreed and on April 29, 2002 rejected the IEP program and placement and chose to proceed to hearing (SE-54; PE-9) According to them, Student would require a significantly different program in order to make effective progress in the fourth grade.
The Parents do not dispute that the program offered to Student during the third grade fit the recommendations of the Team and outside providers to a great extent, given the available information about Student at that time and their own preference for his participation in the mainstream. (Testimony of the Parent) Dr. McQuiston testified that she recommended that Student participate in an inclusion program in the second and third grades because of the Parents’ preference that Student remain in the least restrictive placement, but stated that she would have encouraged them to consider different options had they been available to Student in Southampton. (Testimony of Dr. McQuiston) However, none of the Parents’ experts supported the inclusion program proposed for the fourth grade. (SE-42; Testimony of the Parent, Dr. McQuiston) For the 2002-2003 school year Southampton offered essentially the same program provided during the third grade except that Southampton recognized the increased difficulty of the material Student would have to handle. SE-45 states in pertinent part that
“ The content of the general curriculum [would] be modified through the provision of key concepts and the accompanying elimination of extraneous detail. Reading level will be adjusted. Homework will be adjusted by amount and presentation (scribing, keyboarding), quantity of written language will be adjusted. [Student] will be provided with manipulatives and visuals to facilitate learning. He needs repetition, modeling, and explanations to facilitate understanding. More complex tasks should be broken into smaller components. [Student] will be allowed to use the scribe, respond orally, or use a keyboard in content areas to demonstrate his knowledge. Academic expectations will be adjusted to his level.” (SE-45)
While Southampton tried to use different terminology and give the description of the proposed program a different twist, in essence, in Southampton Student would have received a parallel curriculum in the inclusion classroom as was recommended by Ms. Rivest in PE-14. Ms. Rivest recommended that Student be provided a “ carefully orchestrated parallel academic curriculum ” the following year, “to allow him to be successful in the increased academic expectations inherent in grade four.” (PE-14)
Ms. Khun’s report of April 2002 stated that Student would require an adapted curriculum in order to be successful in the fourth grade and recommended continuation of assistance by the aide. (SE-50; PE-19) The fourth grade curriculum would have required substantial modification compared to that of the third grade, in order for Student to have been able to access it. This would have accentuated the differences between Student and his typically developing peers even more, and would have made it increasingly difficult for him to follow the rhythm of the regular education fourth grade classroom. He would have had to rely on the aide for his education in the inclusion classroom and his opportunities to practice language would be less if he were provided a parallel curriculum. Southampton stated that special education staff would have been in the classroom more frequently (five times 45 minutes per week as opposed to two times 30 minutes per week) but these services do not fall under direct services in Student’s IEP, rather, they are provided under consultation. (SE-54; PE-9) Under this IEP, the pull-outs for language arts would have been increased from four times forty-five minutes per week to five times forty –five minutes per week. There was provision for occupational therapy carryover into the regular education classroom, and Student would have been assigned an aide. (SE-50; PE-12) The testimony was undisputed that Student did not like to be pulled-out because it made him feel different. (Testimony of Dr. McQuiston, Ms. Catuogno, Parent) The special education staff would have consulted with the regular education staff.
While some of the elements of the program offered by Southampton were appropriate the program was fragmented and lacked sufficient coordination. (Testimony of Ms. Campbell) Given Student’s language-based difficulties what he needed most was participation in a small language-based classroom with real opportunities to practice and participate throughout the day. The low student/teacher ratio would have allowed for frequent discussion, clarification of concepts and greater opportunities to participate and hence, practice language throughout the day across all settings. (Testimony of Mr. Brown, Ms. Campbell, Dr. McQuiston) A peer-group working on the same curriculum would have also helped Student boost his self-image/esteem. Additionally, social pragmatics has been identified as a significant area of need. (Testimony of Mr. Brown) Such programmatic components and features would have been impossible to implement in an inclusion program. Since Student is aware of being different, there is a higher risk that Student’s differences from the rest of his classmates would have been more noticeable in the more challenging fourth grade environment. This would have had a negative emotional impact on Student’s self-esteem and development (Testimony of Mr. Brown, Ms. Campbell)
Southampton argues that the inclusion program offered to Student met the recommendations of Dr. McQuiston, namely “full participation by the student, a sense of community, a sense of being a part of a larger classroom, and having grade level materials made accessible to the student while providing the student with services needed.” While it is true that Southampton’s IEP met said recommendations when Student was in the third grade, this is not true for the fourth grade. During her testimony Dr. McQuiston expressed concern about Student remaining in a mainstream environment especially as content areas in science and social studies would became more difficult. In her opinion, his learning pattern was consistent with a nonverbal learning disorder, with weaknesses in verbal comprehension, and required special education in a program run by special educators that was geared towards children with specific learning difficulties. (PE-15)
During the years that Student was educated at Southampton, Student’s Parents provided additional private speech and language services in the home by Dora Campbell and Paul Brown, speech and language pathologists with experience teaching students with a variety of language disorders including non-verbal disabilities. (Testimony of Parent, Dora Campbell and Paul Brown) These services ranged from four to three hours per week up to Student’s third grade. (Id.)
Ms. Campbell began servicing Student in August 2000 and as stated in the Findings of fact, she worked on narrative development in the oral and written form, spelling, oral comprehension and social pragmatics, as well as helped Student with homework. She testified that she worked with Student after school and he often expressed his unhappiness in the Southampton school setting. (Testimony of Ms. Campbell)
Paul Brown, began working with Student in November 1996, providing two hours per week of speech and language services in the home initially and one hour per week since 2000. (Testimony of Mr. Brown) His work with Student focused on vocabulary development, semantics, language expansion, syntax, inferencing, oral expression and social pragmatics, an area which he characterized as a significant weakness for Student. (Testimony of Mr. Brown) In his opinion Student continues to need a language-based program with emphasis on pragmatics. (Testimony of Mr. Brown)
In ascertaining the effectiveness of the Southampton program one cannot divorce the impact that these home services had on Student’s overall academic progress. The evidence is persuasive that without these additional services Student would have been unable to make the amount of progress he made while in Southampton. As noted earlier both of these providers, whose testimony I found credible, recommended that Student participate in a small group, language-based program. (Id.) Interestingly the frequency of the speech and language services provided in the home decreased from three times per week to twice per week once Student started attending White Oak. (Testimony of MS. Campbell) Student still progressed more effectively in a shorter period of time at White Oak than he had in his years at Southampton.
Behavior plan
While at Southampton Student was put on a behavior intervention plan to address social behavior, task refusals and the use of physical force to handle frustration and unhappiness. (Testimony of Ms. Khun, Parent, Ms. Catuogno, Dr. Levine) The home/school log recorded several instances of Student either losing or achieving the rewards throughout the year. (PE- 28) As late as May 15 th instances of Student being uncooperative and losing rewards were reported3 . For many instances of Student’s cooperation and good behavior there were instances of lack of cooperation, task refusal, frustration and some form of emotional reaction (tears, hitting, etc.). Throughout one given day he could present with different moods at different times depending on his frustration level, the task before him, or a situation. While Student’s behaviors did improve between the second and third grades, the target behaviors in Student’s Behavioral Plan would still need to be addressed in the fourth grade as a support for Student, at least in the beginning. (Testimony of Ms. Catuogno, Dr. Levine) Dr. Levine was of the opinion that the Behavioral Plan offered Student comfort because it provided a sense of predictability. (Testimony of Dr. Levine) In contrast, while at White Oak he has not required a behavioral plan and the behaviors described in Southampton disappeared in the first semester of the 2002-2003 school year. (Testimony of Ms. Edgerly, Ms. Drumm, Ms. Michalski, Ms. Mazeika) The White Oak’s program offered a great deal of predictability and uniformity in the teachers’ presentation style. (Testimony of Ms. Edgerly) According to Southampton, Student was internalizing the behavior intervention strategies that were a part of his plan and that is why he did well at White Oak. I find this claim unpersuasive in light of the evidence. The school/home log reported instances of good and bad behaviors throughout the third grade suggesting that Student’s behaviors, while improved, were not under control and were still manifesting randomly across different school settings. (PE-28)
In contrast, Dora Campbell and Paul Brown testified that while at Southampton Student was overly concerned about getting all of his checks and became extremely upset if he did not get them. (Testimony of Ms. Campbell, Mr. Brown) Student was also concerned about the home/school communication log where school personnel commented on Student’s behavior, and mentioned instances of inappropriate behavior during the school day that caused Student to lose his “checks.” Student viewed this as negative and often discussed it with Mr. Brown. (Testimony of Mr. Brown) In Mr. Brown’s opinion Student was extremely frustrated and appeared embarrassed by this behavior, often asking Mr. Brown not to tell Parents that he did not get his checks. (Testimony of Mr. Brown) While the Parents did not state that Student was upset in the home/school log, the log does contain comments about him having a difficult time at home or not wanting to go to school. (PE- 28; Testimony of the Parents)
I find that Southampton was correct in implementing the behavioral plan to address the negative behaviors displayed by Student in school and it correctly argued that IDEA emphasizes that districts should address behavioral issues proactively. Furthermore, the evidence shows a marked contrast between Student’s second and third grade experiences in Southampton. What is striking however, is that Student did not require a formal behavioral plan at White Oak and yet his overall attitude, cooperation and performance improved significantly over time both in and outside of the school. This was especially true during the 2002 summer program at White Oak during which Student did not display inappropriate behaviors or make self-deprecatory remarks and was able to keep himself organized with little assistance. (PE-5; Testimony of Ms. Michalski)
In September 2002, Student went through a period of adjustment at White Oak during which it was difficult for him to transition out of a bad mood, and on occasion he could get close to being violent. (Testimony of Ms. Michalski, Ms. Drum) He also verbally said “no” when asked to do something, would mutter under his breath, was reluctant to take risks, and made inappropriate statements to other students. In essence, Student displayed very similar behaviors to those described throughout the 2001-2002 school year in the Student’s home/school log. Eventually, he complied with the requests made of him and soon the staff did not have to spend much time addressing behaviors at White Oak. (PE-28; Testimony of Ms. Michalski, Ms. Drumm, Ms. Mazeika) At White Oak a reward system was in place for all students. However, I find it was the clearly defined expectations (some posted in the classroom), the consistent use of the same language and language-based approach throughout the day across all settings by all teachers, participating in a program with like-peers and increased opportunities for meaningful participation throughout the day that contributed to Student’s success and more spontaneous cooperation.
The Child Specific Aide:
It is worth noting that while Student required a dedicated one-to-one aide at Southampton, he did not require one at White Oak. In Southampton, the staff and success of the program depended very much on the active involvement of the aide with whom Student had a very good relationship. The aide was assigned to help address Student’s behavioral issues. It was the Parents’ opinion that assignment of an aide and frequent removals from the regular education classroom exacerbated Student’s emotional and psychological fragility. The Mother testified that frequently when she picked Student up from school she observed him to be upset “swelling up with tears”. (Testimony of the Mother) The Parents argued that these features made the program more restrictive.
While Dr. McQuiston did not observe Student in third grade, her observations during Student’s second grade described a student who, while physically in a regular education classroom, was unable to work on academic tasks independently. (Testimony of Dr. McQuiston) At that time he was described by his mother, his aide and the classroom teacher as inattentive, dependent on adults for academics and with social situations, fearful of new situations, nervous, anxious and irritable. Both Ms. Catuogno and Ms. O’Reilly described him as inattentive, defiant, impulsive, fidgety, demanding of attention and having difficulty following directions and learning. (SE-42) According to Dr. McQuiston, Student appeared to be acting out of frustration because of his limited insight and inability to express his needs because of his limitation in language skills. He was sensitive to being singled out and had difficulty with transitions. The amount of one-to-one support and the pull-out services impacted on his self-esteem because of his awareness of his own limitations. As early as May 25, 2001, Dr. McQuiston recommended that Southampton discuss a transition plan for third grade, that the paraprofessional attend the pull-out therapies with Student and that the program focus on Student’s socio/emotional needs and on strengthening his pragmatic skills throughout the day. (SE-42; Testimony of Dr. McQuiston)
Dr. McQuiston reviewed the IEPs offered to Student by Southampton for the third and fourth grades and noted the lack of goals and objectives to address social skills development. (PE-9; PE-13) She testified that fourth grade would present increased language demands for Student, and that the curriculum would become more abstract. She stated that there would be an increased requirement for written output which would require a great deal of modifications to the curriculum and increased pull-out services, something Student did not like and perceived as punishment. (Testimony of Parent) He was unable to work at the same level as his classmates and could not keep up with them. All of these factors would have a negative effect on Student, exacerbating his sense of isolation and low self-image. (Testimony of Dr. McQuiston)
Emotional /social skills
Ms. Mullins noted Student’s growth in the area of social relationships but commented that if Student was in a bad mood or if something did not go his way he would not be able to use social language to express his feelings or his needs. (SE-50; PE-19) According to her, picture cards proved helpful in those instances. (SE-50; PE-19) Emotional break-downs occurred when he got over-stimulated and as of May 2002 he still required a behavioral plan. Ms. Khun noted that Student “continued to have days where it was more difficult for him to focus, stay on task and be compliant…” but [he]appeared to be motivated to participate in activities with typical peers and do what other students appeared to be doing. (SE-50; PE-19) This information was consistent with Parents’ and Dr. McQuiston’s perception that Student wanted to be like everyone else.
During the third grade Student participated in a social skills group with Ms. Khun in Southampton. Also, Ms. Rivest implemented a social pragmatics curriculum in the classroom daily. (Testimony of Ms. Rivest, Ms. Mullins, Ms. Khun) Southampton witnesses opined that Student would benefit from the opportunity to interact with typical peers who did not have social pragmatic issues. (Ms. Khun) Ms. Khun reported that Student had made significant social gains in third grade, that he established close friendships with his classmates, and that he participated in most classroom activities. Southampton personnel saw only a happy boy. (Testimony of Ms. Mullins, Ms. Khun, Mr. Field, Ms. Catuogno, Ms. Rivest) This information is inconsistent with some of the information contained in the Student’s log and the testimony provided by Parents, Ms. Campbell, Mr. Brown and Dr. McQuiston. While Student wanted to be like the rest of his typically developing peers and resented being pulled out of the classroom for one-to-one sessions, he seemed to be overly concerned with the behavior plan and did not carry over the friendships with his typically developing peers after school. (Testimony of Dr. McQuiston, Father) The Parents testified that Student was unable to generalize what he was learning in school to other settings including the home.
The Parent testified that Student was unhappy, frustrated, depressed, had a poor self image and was reluctant to go to school in second and third grade. (Testimony of Father) Southampton argued that nothing was presented to the district that indicated that Student had emotional issues at home during the 2001-2002 school year. While Parents may not have brought up all of their concerns to Southampton, the district was aware that there were issues with unhappiness in school as the log records instances of Student crying, having difficulty attending school assembly, refusing to participate in school activities/classes, and engaging in physical altercations with other students since he had difficulty handling frustration. Some of Student’s behaviors were manifested during unstructured times such as recess.
Perhaps the greatest insight into Student’s level of comfort in school was provided by Student himself during a conversation with Dr. McQuiston shortly before the hearing. When asked how he would rank his school experiences on a scale from 1 to 10 during the second, third and fourth grades he stated that second grade in Southampton was a “0”, third grade in Southampton a “5” and the experience in White Oak was a “10”. (Testimony of Dr. McQuiston) This is especially significant in light of the progress made by Student in White Oak, where he has not required implementation of a behavioral plan or a one-to-one aide.
In Massachusetts, the IEP proposed by the school district must offer Student a Free Appropriate Public Education that meets state educational standards4 . M.G.L. c. 71 B §1,2,3; see also 603 CMR 28.01 & 28.02 (21) In accordance with the Federal law, Student must also have access to full participation in the general curriculum, to the maximum extent possible. Lastly, Student is entitled to be educated in the least restrictive environment appropriate to meet his/her individual needs.5 20 USC §1414(d)(1)(A)(iii); 34 CFR 300.347(a)(2)(i) and (a)(3)(ii); 64 Fed. Reg. No. 48, page 12595, column 1; MGL c. 71B § 1; 603 CMR 28.02 (12). See In re: Worcester Public Schools , BSEA # 00-0912, 6 MSER 194 (SEA MA 2000) and In re: Gill-Montague Public Schools District , BSEA # 02-1776, August 28, 2002. Removal from the regular education environment “occurs only when the nature and severity of the special needs is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” 603 CMR 28.118.0.
As discussed in In re: Gill-Montague Public Schools District , BSEA # 02-1776, August 28, 2002, “the IDEA defines FAPE as “special education and related services that:
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary, or secondary school education in the State involved; and
(D) are provided in conformity with the individualized education program required under section 614 (d).6
As stated by the First Circuit Court of Appeals, the school district is responsible to offer students meaningful access to an education through an IEP that provides “significant learning” and confers “meaningful benefit” to the student7 , through “personalized instruction with sufficient support services …”8 . The requirements of the law assure the student access to a public education rather than an education that maximizes the student’s individual potential. Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993); GD v. Westmoreland School District , 930 F.2d 942 (1 st Cir. 1991).
The First Circuit interpreted minimally acceptable standards of educational progress as requiring that the IEP yield “effective results” and “demonstrable improvement” in the “various educational and personal skills identified as special needs”9 , in the context of the potential of the particular student.10
The Massachusetts special education statute defines “special education” as “educational programs and assignments . . . designed to develop the educational potential of children with disabilities . . .” which permit a student to make meaningful educational progress .11 MGL c. 71B § 1, the special education statute in Massachusetts, requires that eligible students receive special education services designed to develop the student’s individual educational potential”12 consistent with the interpretation provided by other Courts. Achievement of the measurable goals embodied in the student’s IEP determine whether the student has made educational progress.13 See also, In Re: Arlington Public Schools , BSEA # 02-1327, issued on July 23, 2002.
Therefore, under both federal and state standards the student must be able to make meaningful educational progress in order for him/her to receive a FAPE. DOE v. Board of Education of Tullahoma City Schools , 9 F.3d 455 (6 th Cir. 1993)
In the case at bar the evidence shows that while Student made progress during his third grade in Southampton, when considering his serious expressive and receptive language disabilities, his social emotional difficulties, and the increased demands of a fourth grade curriculum, the IEP drafted by Southampton for Student’s fourth grade would not have met the requirements of the law. Also, in Southampton, Student’s program would have become increasingly more restrictive. In order for him to be successful he would have required more pull-out services and the assistance of the one-to-one aide, something Student disliked and which clearly had a negative impact on his self-esteem and self-image. Student was aware that he was different from other same age peers. Southampton realized that Student could not handle the regular curriculum and recommended that the curriculum be significantly modified for Student. (Testimony of Ms. Khun) In fact, he would have received a parallel curriculum in a regular education class. (Testimony of Ms. Rivest) His opportunities to participate and practice meaningful language would have been minimal when in fact it was precisely this that he needed. He also required explanations provided contemporaneously with the presentation of the material, and assistance with comprehension. Student required that tasks be broken down in smaller components. (Testimony of Dr. McQuiston, Ms. Campbell, Mr. Brown, Mr. Drake) In Southampton he also lacked a real peer group. The gap between Student and his peers would have undoubtedly widened in the inclusion model. Southampton’s program would not have assured Student a FAPE and would not have provided significant learning so as to confer meaningful benefit to the Student. It is not likely that he would have made meaningful educational progress during the fourth grade in Southampton.
Additionally, while Southampton recognized that Student presented receptive and expressive language deficits, it viewed Student as primarily having cognitive deficits coupled with behavioral issues. (Testimony of Ms. Khun, Ms. Rivest, Farher) Dr. McQuiston testified that Student’s unusual profile “masked his cognitive potential and potential to learn”. According to her Student does not fit neatly in any particular category and has far exceeded her expectations as compared to when she first evaluated him at age four. (Testimony of Dr. McQuiston) By April of 2002 the Parents were convinced that Student needed a small group language-based program and asked Southampton to provide such a program. When the proposed IEP was sent to them calling for Student ‘s participation in an inclusion program the Parents rejected this IEP and notified Southampton that they intended to proceed to hearing. At the time of their rejection of the IEP, Student had not yet been accepted to White Oak. (Testimony of David Drake and Susan Edgerley) I am not persuaded that given the opportunity to partake in a substantially separate language-based program with like-peers, Student would not have been able to be educated in a public school setting. Mr. Paul Brown testified that such programs are available in public school systems and that he had been involved in one such program in Northampton, a neighboring district. (Testimony of Mr. Brown) Mr. Brown testified that he first recommended to the Parents that Student participate in a small language-based class when Student was in the first grade. (Testimony of Mr. Brown) Had Southampton offered Student participation in such a program the outcome of this case would have been very different. Additionally, Parents testified that they believed that due to the town’s budget override vote the one-to-one aide would not be hired. (Testimony of the Parents) This information was disregarded as Southampton clarified that it would have complied with any requirement under Student’s IEP. (Testimony of Ms. Gould)
Dr. McQuiston, Ms. Campbell and Paul Brown recommended that Student receive academic instruction in a language-based classroom, with multi-sensory instruction directly related to the language goals, with small group instruction in pragmatics geared toward children with specific learning difficulties. (SE-47; PE-15; PE-16) The Parents believed that placement at White Oak met these recommendations and the evidence supports their position.
In deciding if parents are entitled to retroactive reimbursement for the expenses associated with unilaterally placing a child in a program other than the one proposed by the school district, the Supreme Court has stated that parents are entitled to retroactive reimbursement “only if 1) the IEP and placement proposed by the school are deemed inappropriate, and 2) the placement in which the parents unilaterally place the child is found to be appropriate.” Doe v. West Boylston School Committee, et al. , Civil Action No. 97-11068-DPW (1998) citing Burlington v. Department of Education , 471 U.S. 359, 363, 373 (1985)
Since I have found that the IEP proposed by Southampton was inappropriate I now turn to the appropriateness of the White Oak program in accordance with the second prong in Burlington . In Doe v. West Boylston School Committee , 4 MSER 149, 161 (D. Mass. September 14, 1998), the United States District Court for the District of Massachusetts applied the IDEA’s appropriateness standard in determining whether the parental placement was appropriate. The Court reasoned that the placement selected by the parents must “provided personalized instruction with sufficient support services to permit [the Student] to benefit educationally” and must have offered “services that were reasonably calculated to enable [the Student] to achieve passing marks and advance from grade to grade.” Doe v. West Boylston School Committee , 4 MSER 149, 161 (D. Mass. September 14, 1998)
White Oak Program
White Oak is a Massachusetts Chapter 766 approved school which offers language-based programs designed to develop all aspects of oral and written language expression for children with learning disabilities. (Testimony of Ms. Edgerly) The staff is trained to use a common language and structure which helps students access information in a skill-based approach and the staff meets on a daily basis. Instruction focuses on oral and written expression, pragmatics, decoding and language comprehension. These skills are addressed throughout the day across the curriculum providing a cohesive, coordinated program by an extensively trained staff. (Testimony of Ms. Edgerly) Teachers use a variety of organizational and instructional strategies including a form of Story Grammar Marker, the “who, what, when, why and where structure”, the “first, next, then, and after sequencing of instruction”. (Testimony of Ms. Edgerly) Children are divided into small groups of six to eight children who share similar skill levels. (Testimony of Ms. Edgerly, Mr. Drake) The rate and pace of instruction is modified to meet students’ individual needs. (Testimony of David Drake)
Students receive instruction in language arts, math, science, social studies, oral expression and an individual tutorial in written language and reading. White Oak also offer physical education, woodshop, home economics, art and keybording. (PE-4; Testimony of Ms. Edgerly) School runs from 8:30 a.m. to 3:30 p.m. but Student participates in after school extra-curricular activities including chess club, art club and basketball. (Testimony of Ms. Michalski)
Mr. David Drake, Director of White Oak, testified that Student presented a complex profile with difficulties with both receptive and expressive language difficulties but was of the opinion that he possessed normal cognitive abilities. (Testimony of Dr. Drake) Ms. Edgerly, testified that Student’s scores in certain portions of the CELF indicated that his actual abilities were higher than suggested by earlier intelligence tests. (Testimony of Ms. Edgerly) Dr. Drake opined that Student benefited from the language-based instruction taught within a small group setting. (Testimony of Dr. Drake) Dr. Drake opined that there was a discrepancy between Student’s cognitive ability and his daily functioning.
Student participated in White Oak’s 2002 six week Summer Program which offered him a one-to-one basic literacy skills tutorial using an Orton-Gillingham based approach and instruction in Math, Language Arts and Study Skills in a language-based classroom. (PE-5)
During the regular school year Student participated in a language-based class, in a group of 6 to 8 students where all students were instructed in the same manner using the same fourth grade level material. (Testimony of Dr. McQuiston) The small group feature allowed for greater and more frequent student participation as well as more individualized attention. (Testimony of Dr. Drake) The program was cohesive and the students were encouraged to use the tools and strategies they are taught rather than relying on their memory. ( Id ., Ms. Campbell)
Testimony was heard from Ms. Tiffany Drumm, Student’s oral expression teacher, Ms. Jody Michalski, the science teacher, and Ms. Christine Mazeika, the math teacher, all of whom are certified elementary school and special education teachers. (Testimony of Ms. Drumm, Ms. Michalski, Ms. Mazeika)
Ms. Drumm and Ms. Michalski testified that in the beginning of the year Student was reluctant to participate in class, became upset easily, interrupted frequently, did not like to be called upon, refused to answer or responded with negative comments, muttered under his breath, or gave “off the wall answers”. (Testimony of Ms. Drumm; Ms. Michalski) He would also make self-deprecatory comments such as “I’m a bad kid”. (Testimony of Ms. Michalski) Within a few months he became more motivated, took risks more readily, volunteered to get up in front of the class and give presentations, raised his hand, appeared comfortable, significantly happier, and was more outgoing. (Testimony of Ms. Drumm; Ms. Michalski, Ms. Mazeika) According to Ms. Drumm, all of the students in his class have similar skills and have difficulties with sequencing, pragmatics and verbalizing appropriately. (Testimony of Ms. Drumm) Ms. Drumm stated that by the time of her testimony, in the winter of 2002, during each class, Student responded to three or four questions regarding character traits, plot, setting, and provided details to the story discussed. She, Ms. Michalski and Ms. Mazeika testified that Student raised his hand, helped his classmates and worked in partnership with them, was more tactful when dealing with classmates, demonstrated growth in dealing with inferential questions, and excels in the computer. (Testimony of Ms. Drumm, Ms. Michalski, Ms. Mazeika) In math, Student even asked for more challenging problems, was willing to stand in front of the class and create word problems, and even though he hated multiplication when he arrived in White Oak, by the second semester he readily did it. (Testimony of Ms. Mazeika) Academically, he progressed at the same rate as his classmates and displayed growth in his socio-emotional skills. (Testimony of Ms. Michalski) Student’s teachers were of the opinion that he benefited from the overall structure, routine, approach and strategies used in White Oak. (Testimony of Ms. Michalski, Ms. Mazeika) I find their testimony credible and persuasive in this respect as also supported by White Oak School Tutorial and Progress Reports for the 2002-2003 school year. (PE-3)
Dora Campbell and Dr. McQuiston observed Student in White Oak during the winter of 2003. Dr. McQuiston testified that he appeared relaxed and engaged with other students. He was described as involved, positive, talkative, eager to answer questions and was observed to answer them correctly in science and was observed to excel in the math lesson. (Testimony of Dr. McQuiston) Ms. Campbell found the oral expression class particularly noteworthy and found Student to be more relaxed in the White Oak environment. (Testimony of Ms. Campbell) His ability to make inferences and understand idioms was improved. (Testimony of Ms. Campbell) Student was not observed to require any additional support above and beyond what the other students needed. At White Oak he had a chance to be a leader/tutor to other students and “shined” at it. Dr. McQuiston had stressed the importance of Student having a peer group for his emotional/psychological well being. According to her, Student appeared happy and enjoyed being at White Oak. He was able to organize his material, write his assignments and transitioned well from class to class. (Testimony of Dr. McQuiston) He was not resistant to the educational process and so thrived in this environment that Dr. McQuiston described him as a “different boy”. (Testimony of Dr. McQuiston, Ms. Campbell) This transformation was generalized into the home as the Parents credibly reported positive changes in the family dynamics. Improvement in affect and overall confidence was also observed in Student by Ms. Campbell after school.
The Father testified that while Student manifested some behavioral issues during a short transitional period into White Oak, he was able to handle the academic demands and a remarkable change in Student’s affect and self-esteem was noted. (Testimony of Father) While there had been issues with Student eating his lunch in Southampton, Student gained 12 pounds between September 2002 and March 2003 at White Oak. (Testimony of Father) He was eager to get dressed and ready for school, developed a number of friendships among his peers, and asked to stay after school to participate in clubs and activities. (Testimony of Father and Mother)
In September 2002, White Oak drafted a preliminary IEP for Student. This was revised in November 2003, when the IEP for the period from November 2002 to June 2003 was drafted. (PE-1; PE-2) The IEP provided for the following services: reading tutorial for fifty minutes, five times per week; language arts for fifty minutes, five times per week; math for fifty minutes, five times per week; science for fifty minutes, five times per week; social studies for fifty minutes, five times per week; oral expression for fifty minutes, five times per week; expanded arts/computer for fifty minutes, two or three times per week for half the year; and physical education for fifty minutes, two or three times per week. (PE-1)
Southampton argued that there is no speech language pathologist on staff at White Oak and that according to Ms. Campbell and Ms. Mullins, Student needs speech and language services particularly in the area of narrative development and pragmatics. (Ms. Mullins, Ms. Campbell) Dr. Drake explained that additional speech and language services were not necessary because of the structure of the program at White Oak. Development of written language was worked on continuously in all classes, pragmatics were ongoing throughout the day, materials were presented to students at their own level so that accessing vocabulary and the intrinsic and inferential meaning of certain material was done automatically in the classroom. (Testimony of Dr. Drake) Ms. Edgerly testified that the entire White Oak program is consistent with the recommendations of Ms. Dora Campbell, the speech and language pathologist who offers Student speech and language services in the home. Ms. Campbell agreed. (PE-16; Testimony of Susan Edgerly, Ms. Campbell)
It was recommended that Student receive OT to address fine motor, sensory, organizational, visual motor and perceptual difficulties. However, there is no occupational therapist on staff at White Oak. According to White Oak personnel, Student has not required OT services and has thrived in keybording. (Testimony of Ms. Edgerly) None of the witnesses for the Parents testified that Student required occupational therapy services above and beyond the services and overall structure of the White Oak program. The evidence is persuasive that during the fourth grade in White Oak Student was very successful academically, socially, psychologically and behaviorally. (Testimony of Father, Mr. Brown, Ms. Campbell, Dr. McQuiston) Mr. Brown testified that Student’s after-school functioning and demeanor was much more positive in terms of how Student viewed himself after he started attending White Oak. Student was no longer resistant to homework or attending school and the aggressive language, crying or “shut-down” behaviors displayed while he attended Southampton were no longer there. Student was now focused on his work product rather than on his behavior. (Testimony of Father, Ms. Campbell, Mr. Brown)
In accordance with the Burlington standard, and in consideration of the evidence before me, I find that White Oak was an appropriate placement for Student’s 2002-2003 school year. White Oak is a Massachusetts 766 approved school with certified teachers and a program that follows the Massachusetts State Curriculum Frameworks. See, Florence County Sch. Dist. Four v. Carter , 510 U.S. 7, 14 (1993). Parents overall concerns with Southampton’s proposed program related to the lack of a language-based approach, insufficient opportunities to practice language throughout the day, lack of consistency of learning, classroom size, student teacher ratios, and its impact on Student’s self-esteem, and social relationships. (Testimony of Parents) In their opinion, Southampton misdiagnosed Student whose major disability is a specific learning disorder, which called for participation in a language-based program. The evidence and credible testimony provided by Ms. Campbell, Mr. Brown, Dr. Drake, Ms. Edgerly and Dr. McQuiston support placement of Student in a self-contained language-based program such as the program offered at White Oak, for the 2002-2003 school year. Furthermore, Parents complied with the notice requirement under 20 U.S.C. §1412 (a)(10)(C)(iii) and advised Southampton of their intention to place Student at White Oak in July 2002.
“ Once it is determined that a public placement violated the IDEA, as is the case in the instant action, the court is authorized to ‘grant such relief as [it] determines is appropriate. 20 U.S.C. § 1415(I)(2)(B)(iii).” Doe v. West Boylston School Committee , 4 MSER 149, 161 (D. Mass. September 14, 1998). Therefore, reimbursement to the Parents for the unilateral placement of Student in White Oak for the 2002-2003 school year is appropriate. For the reasons stated above I find that the Parents are entitled to reimbursement for their unilateral placement of Student at White Oak during the 2002-2003 school year.14 20 U.S.C. §1412 (a)(10)(C)(ii)
ORDER:
Southampton is Ordered to reimburse the Parents for the expenses associated with their unilateral placement of Student in White Oak during the 2002-2003 school year.
By the Hearing Officer,
______________________________________
Rosa I. Figueroa
Dated: September 8, 2003
1
SE-1 through SE-23 and PE-21 include Student’s educational evaluations performed by Southampton as well as by independent evaluators, proposed and partially rejected IEPs (offering direct special education services in the regular education classroom and Parents request that Student receive services during the summer), medical data, information on services delivered, and progress reports for the 1995-1996 and the1997-1998 pre-kindergarten years. Since the educational services provided to Student during those school years are not in issue, SE-1 through SE-23 and PE-21 serve mostly to provide background information. These exhibits do not bear directly on this dispute and therefore, not all of them are considered after review.
2
This “Draft” IEP was not signed by Parents or by school personnel. (SE-45)
3
May 15 th is the last entry on Student’s Home/School Communication Log. (PE- 28)
4
In Massachusetts, State educational standards include those established by statute, MGL c. 71B §1, or established by regulations promulgated by the board of education including the Massachusetts State Curriculum Frameworks. See the Mass. Department of Education’s Administrative Advisory SPED 2002-1: Guidance on the change in special education standard of service from “maximum possible development” to “free appropriate public education” (“FAPE”), Effective January 1, 2002 (hereafter Mass . FAPE Advisory ), 7 MSER Quarterly Reports 1 (2001).
5
20 USC 1412(5)(A); 603 CMR 28.
6
33 USC 1401(8). The federal regulations adopted pursuant to the IDEA include a similar definition of FAPE. 34 CFR 300.13.
7
For a discussion of FAPE see Hendrick Hudson Bd. Of Education v. Rowley , 458 U.S. 176, 188-189 (2992); Cedar Rapids Community School District v. Garret F., 526 U.S. 66 (1999); Burlington v. Department of Education , 736 F. 2d 773 (1 st Cir. 1984). Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000); Stockton by Stockton v. Barbour County Bd. of Educ ., 25 IDELR 1076 (4 th Cir. 1997); MC v. Central Regional School District , 81 F.3d 389 (3 rd Cir. 1996), cert. denied 519 US 866 (1966); Ridgewood Board of Education v. NE , 30 IDELR 41 (3 rd Cir. 1999). See also GD v. Westmoreland School District , 930 F.3d 942 (1 st Cir. 1991).
8
Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 203, 102 S.Ct. 3034, 3049 (1982).
9
Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993) (program must be “reasonably calculated to provide ‘effective results’ and ‘demonstrable improvement’ in the various ‘educational and personal skills identified as special needs’”); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990); Burlington v. Department of Education , 736 F.2d 773, 788 (1 st Cir. 1984).
10
Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) (a disabled child’s development must be measured with respect to the individual student, not by his relation to the rest of the class, as declining percentile scores may represent the student’s inability to maintain the same level of academic progress achieved by regular peers and not necessarily a lack of educational benefit); Ridgewood Board of Education v. NE , 172 F.3d 238 (3 rd Cir. 1999); MC v. Central Regional School District , 81 F.3d 389 (3 rd Cir. 1996), cert. denied 519 US 866 (1996); Roland v. Concord School Committee , 910 F.2d 983 ( 1 st Cir. 1990); Kevin T. v. Elmhurst , 36 IDELR 153 (N.D. Ill. 2002).
11
The Massachusetts Department of Education (DOE) stated that the “FAPE standard . . . requires the school district to provide personalized instruction tailored to the student’s needs, with sufficient support services to permit the student to make meaningful educational progress .” Mass . FAPE Advisory (see footnote 8 above for full title and citation of Advisory) (emphasis supplied).
12
603 CMR 28.01(3). The Massachusetts Department of Education has also noted that the Massachusetts Education Reform Act “underscores the Commonwealth’s commitment to assist all students to reach their full educational potential.” Mass . FAPE Advisory (see footnote 8 above for full title and citation of the Advisory). MGL c. 69, §1 states in part that a paramount goal of the commonwealth is “to provide a public education system of sufficient quality to extend to all children the opportunity to reach their full potential.”
13
County of San Diego v. California Special Educ. Hearing Office, 93 F.3d 1458 (9th Cir. 1996) (the correct standard for measuring educational benefit under the IDEA is whether the child makes progress toward the goals set forth in IEP and not just whether the placement is reasonably calculated to provide the student educational benefits.); Evans v. Board of Education of the Rhinebeck Central School District , 930 F.Supp. 83 (S.D. N.Y. 1996) (the IEP must include measurable criteria to assess the student’s progress).
14
I was impressed by the conduct of the parties throughout the Hearing and commend the attorneys for their excellent presentation of the case.