COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Bourne Public Schools
BSEA # 03-2617
DECISION
This decision is issued pursuant to 20 USC 1400 et seq . (Individuals with Disabilities Education Act), 29 USC 794 (Section 504 of the Rehabilitation Act), MGL chs. 30A (state administrative procedure act) and 71B (state special education law), and the regulations promulgated under said statutes.
A hearing was held on January 12 and 13, 2004 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings (or who testified by speaker phone) were:
Student
Student’s Mother
Patricia Abdelal Speech/Language Pathologist in private practice1
Robin Schwarz Director of Tutoring Services, Learning Lab, Lesley University
Laura Perry Special Education Teacher, Bourne Public Schools
Leslie Sullivan School Psychologist, Bourne Public Schools
Gail Casassa Speech/Language Pathologist, Bourne Public Schools
Linda Cubellis Speech/Language Pathologist, Bourne Public Schools
Brigitte Bass Occupational Therapist, Bourne Public Schools
Charles Howland Bourne Public Schools’ Consulting School Psychologist2
Lawrence Sweeney Director of Special Education, Bourne Public Schools
Toni Saunders Advocate for Parents and Student
Brian Wall Attorney for Bourne Public Schools
The official record of the hearing consists of documents submitted by the Parents and marked as exhibits P-1 through P-12; documents submitted by the Bourne Public Schools (hereafter, Bourne) and marked as exhibits S-1 through S-29; and approximately fourteen hours of recorded oral testimony and argument. As agreed by the parties, oral closing argument occurred at the end of the Hearing day on January 13, 2004, and the record closed at that time.
In order that certain related services described in the IEP (which services had been agreed upon by Parent but were not being provided) could begin as quickly as possible, a Preliminary Order was issued on January 14, 2004. The Preliminary Order directed Bourne to implement immediately its most recently proposed IEP (exhibit S-25) in all respects, and further directed Bourne to arrange for a functional vision evaluation to occur no later than February 13, 2004. The Preliminary Order remained in effect only until the issuance of this Decision.
ISSUE
The issue to be decided is whether Bourne’s most recently proposed IEP (for the period 10/16/03 to 10/16/04)3 is reasonably calculated to provide Student with a free appropriate public education (FAPE); and if not, what education services are necessary in order for Student to receive FAPE. Prior to the Hearing, the only issues identified by Parents related to the question of whether Student has a cognitive impairment, but during the Hearing it became apparent (and the parties agreed) that all aspects of the IEP would be considered by me.
POSITIONS OF THE PARTIES
Parents take the position that Student does not have a cognitive impairment and that education services within the IEP designed for a student with a cognitive impairment are therefore not appropriate. Parents believe that Student’s limitations are based upon her lack of past formal instruction and because she continues to learn the English language. Parents believe that to be appropriate, the IEP and the education services described within it must address these limitations.
Bourne takes the position that its IEP is appropriate and that Parents have provided no evidence from any expert qualified to conclude otherwise. In particular, Bourne believes that Student has a cognitive impairment and that its most recent IEP appropriately proposes services for a student with such a disability.
FACTS
Profile and history of Student .
1. Student is a thirteen-year-old girl who lives with her Parents in Bourne, MA. Testimony of Mother, Student.
2. Student’s Parents are originally from the Philippines. Student was born in the United States (New Jersey) on September 16, 1990. Shortly before Student’s third birthday, Parents sent Student to the Philippines to live with Student’s grandmother. Student remained in the Philippines until early in 2002 when she returned to the United States to have a medical operation. Since then she has lived with her Parents in Bourne, MA. Testimony of Mother, Student.
3. In the Philippines, Student attended school but not continuously. It is not clear either how much time Student spent in school or what skills were taught. Mother and Student reported that at school, Student was involved with such activities as folding clothes, matching pictures, listening to stories and playing outside. Student testified that at approximately nine years old, she stopped going to school in the Philippines and did not return. Testimony of Student, Mother.
4. Mother believes that Student learned very little through her schooling in the Philippines. After nine years in the Philippines, when Student returned to the United States and resumed living with her Parents, Mother found that Student was able to speak only a “little” English, had few academic skills and did not know how to read. Mother then began teaching Student basic academic skills at home, such as how to recognize letters and basic math. In Student’s home, English and Tagalog (the national language of the Philippines) are spoken although her Father has asked that she only speak English. Testimony of Mother, Student.
5. In May or June of 2002, a visiting nurse noticed Student in her home and reported her to the Bourne Public Schools as a child who was not in school. On August 26, 2002, Parents enrolled Student in the Bourne Public Schools, and she began her schooling with Bourne in the 5 th grade at the beginning of the 2002-2003 school year. Testimony of Sweeney.
6. Student currently attends the 6 th grade within the Bourne Public Schools. She enjoys school although some homework is difficult for because she does not know how to read or write beyond the kindergarten level; she is well liked by peers and adults and has friends at home and at school; she is a good self-advocate at school, often asking for help when she does not understand; she enjoys music and learning the words to songs; and she is highly motivated to learn, particularly to learn how to read. At the Hearing while testifying, she engaged easily and appropriately in conversation with adults, and she explained that she enjoys living in the United States because she can go to school every day. Testimony of Parent, Student, Perry.
7. Student uses a wheelchair, apparently as a result of cerebral palsy. She is able to manipulate her wheelchair around her school with minimal assistance. Areas of weakness include possible ocular motor skills, visual perceptual skills, fine motor skills and postural control/muscle tone. Testimony of Bass; exhibits S-12, S-13, S-25.
Evaluations of Student in the fall of 2002 .
8. Early in the fall of Student’s 5 th grade (the 2002-2003 school year), Bourne conducted a series of evaluations intended to determine Student’s strengths and limitations, and from the results of these evaluations, propose appropriate education services. From the perspective of what issues are in contention in this case, the relevant evaluations were (1) a speech and language evaluation by Linda Cubellis (Bourne’s Speech/Language Pathologist) on September 23 and 24, 2002 (exhibit S-10), (2) a psychological assessment by Leslie Sullivan (Bourne’s school psychologist) on October 1, 2002 (exhibit S-14), (3) a summary of academic assessments by Laura Perry (Bourne’s special education teacher) on October 15, 2002 (exhibit S-12), and a psychoeducational evaluation by Charles Howland, PhD (Bourne’s consulting school psychologist) on October 16, 2002 (exhibit S-11).
9. Principal findings of these evaluations were that Student has cognitive functioning limitations, with severe deficits in language and academic skills. Exhibits S-11, S-14, S-25. Parents dispute the accuracy of this finding. The evaluations may be summarized as follows.
10. Speech and language evaluation . A speech and language evaluation by Linda Cubellis (Bourne’s Speech/Language Pathologist) on September 23 and 24, 2002 found significant weaknesses in Student’s receptive and expressive language. Exhibit S-10. Ms. Cubellis testified that she is certified and licensed as a speech/language pathologist, and has twelve years of experience in that capacity.
11. Test scores indicated that Student fell within the “very low range of functioning” in most subtests. Ms. Cubellis observed that during testing, Student “very frequently” began answering in “Philippine” and would then stop and try to think of the English word. Ms. Cubellis also noted in her report that it was unclear to her how Student’s exposure to the Philippine language impacts her performance in the testing which Ms. Cubellis administered to her. Exhibit S-10.
12. Psychological assessment . A psychological assessment by Leslie Sullivan (Bourne’s school psychologist) on October 1, 2002 was performed “to determine if [Student’s] academic difficulties are a genetically based result of her physical disability (Cerebral Palsy), a lack of formal schooling, a learning disability, or the result of a language barrier.” Exhibit S-14.
13. Ms. Sullivan testified that she received her masters degree in education in 1997, has been licensed as a school psychologist since 1998, and has six years experience as a school psychologist. She noted that she does not have any experience in the area of English as a second language (ESL).
14. Ms. Sullivan testified that she is not aware of any standardized testing that is unbiased for purposes of evaluating Student. She explained that she relied on the Sanford-Binet test to determine Student’s cognitive abilities and limitations – this test is normed on a United States population, taking into consideration four minority subgroups, but the test instrument has some of the least amounts of “cultural loading” of all the tests that are available for this purpose.
15. The evaluation by Ms. Sullivan found that on the Sanford-Binet test, Student received a composite score of 48, which would place Student below 1% of other twelve-year-old children in the United States. Ms. Sullivan’s evaluation found overall results of “significant cognitive and adaptive weaknesses”, with cognitive abilities generally in the mentally retarded range and specific weaknesses in overall verbal reasoning, abstract/visual reasoning, quantitative reasoning and short-term memory. Exhibit S-14.
16. Ms. Sullivan noted in the summary and recommendations section of her report that “[d]ue to the bilingual nature of [Student’s] language processing, [evaluation] results are likely an underestimate of her cognitive abilities and should be interpreted with caution.” The report further stated near the end of the report that “it remains unclear how much of [Student’s] difficulties are the result of a language barrier, as well as her Cerebral Palsy.” Ms. Sullivan then reported that another cognitive assessment of Student’s language “will be conducted within the next couple of weeks, that will likely provide more comprehensive results.” Exhibit S-14.
17. Ms. Sullivan testified that even if one were to adjust the Sanford-Binet test scores for any possible bias, Student would still be considered to have cognitive limitations. Ms. Sullivan explained that although she cannot determine precisely Student’s cognitive level, she is certain that Student is “cognitively impaired”. She explained that she uses this term to mean that for Student there are factors which interfere with (but do not preclude) her learning, including a disorganized pattern of learning, a slower rate of learning, and difficulty generalizing.
18. Summary of academic assessments . A summary of academic assessments by Laura Perry (Bourne’s special education teacher) on October 15, 2002 was performed in order to choose the appropriate special education program for Student. Exhibit S-12.
19. Ms. Perry testified that currently and for the past seven years, she has been employed by Bourne as a special education teacher. She explained that she received her masters degree from Leslie University (then Leslie College) in 1999. She further noted that this academic year, as well as for the 2002-2003 school year, she has been Student’s special education teacher for math and language arts.
20. Assessing Student with the Brigance Diagnostic Comprehensive Inventory of Basic Skills-Revised, Ms. Perry found that reading comprehension is a relative strength for Student because she scored “higher than that of approximately 2% of students from the same age group” and that reading, written language and mathematics are areas of relative weakness because in these areas Student scored “higher than that of approximately <1% of students from the same age group.” The report makes no recommendations, other than to state that this is to be discussed at the team meeting. Exhibit S-12.
21. Psychoeducational evaluation . A psychoeducational evaluation by Charles Howland, PhD (Bourne’s consulting school psychologist) on October 16, 2002 was “part of the process for renewing of [Student’s] educational plan.” Exhibit S-11.
22. Although Dr. Howland was retained by Bourne to perform this evaluation of Student and his report was submitted into evidence by Bourne, he testified at the evidentiary Hearing pursuant to a subpoena from Parents’ advocate which subpoena Bourne sought to quash. Dr. Howland testified that he is a licensed clinical psychologist with his PhD in psychology and has thirty years experience in his field. He also noted that although he has never evaluated a student from the Philippines, he has evaluated approximately 75 children each year for the past thirty years who do not speak English. He further explained his experience recommending educational services for such children, including working as an English as a second language (ESL) teacher and supervising a bilingual program.
23. The evaluation was performed with the assistance of a “bilingual/bicultural interpreter” who was able to communicate with Student in Tagalog, which is the national language of the Philippines. Dr. Howland’s tests were given to Student in both English and Tagalog, with the help of the interpreter. He testified that he does not know whether the interpreter had any particular training or experience as a test interpreter. Testimony of Howland; exhibit S-11.
24. Dr. Howland testified that he was not able to find a neutral test to use with Student – a neutral test would need to be normed on children from the Philippines and the tests he used were normed on monolingual children within the United States. In his report, Dr. Howland similarly noted that “[s]ome caution should be used in the interpretation of these results as they were based on U.S. norms, rather than those of the Philippines.” He testified that he used the best tests available to him to determine where Student fell on the developmental spectrum, to help Bourne understand her current abilities and limitations and therefore to help Bourne determine what services should be provided.
25. Through his evaluation, Dr. Howland administered to Student the Test of Nonverbal Intelligence (Second Edition), Wechsler Intelligence Scale for Children (Third Edition), Expressive One-Word Picture Vocabulary Test (Revised), the Bender Gestalt and the Wide Range Achievement Test (Revision 3). Dr. Howland concluded in his report that the test results indicate that Student’s “overall level of cognitive functioning is within the lower ranges, with severe deficits in her language, cognitive, visual motor and academic skills.” Finally, Dr. Howland reports that Student’s visual motor integration skills and her oral expressive vocabulary in English were approximately seven years below expectations developmentally, and Student’s “academic results clustered within a similar range.” Dr. Howland concluded that Student will continue to need a multifaceted program that focuses on the development of her language, cognitive, motor and academic skills. Exhibit S-11.
26. Dr. Howland explained in his report that Student told him that she began her education with the Bourne school system when she was eight years old. In the summary of his report, Dr. Howland then concluded that Student “has been in a substantially separate special education program in the Bourne Public Schools since she was about eight years old” (she was 12 years old at the time of the evaluation) and that she is “receiving many services to meet her language, cognitive and physical needs.” During the Hearing, Dr. Howland was advised that it is most likely that Student returned to this country in 2002 and that, in any event, she began her education with Bourne in the fall of 2002, less than two months prior to his evaluation.
27. Dr. Howland testified that had he been aware of this information regarding Student’s educational background when he tested her, he would only have used non-verbal test instruments and he would have given the test results a “wider allowance” of error. Dr. Howland concluded that because of Student’s background and the inherent bias of the standardized test instruments as applied to Student, it was not possible to determine Student’s actual cognitive abilities.
28. Dr. Howland further testified, however, that even when he factors in Student’s limited academic history, as well as the possible biases of the testing, Student gives the impression of someone who is cognitively limited, falling in the 25% or lower range of the general population of twelve-year-old children. In reaching this conclusion, he relied in particular on Student’s low scores in the naming test and the non-verbal intelligence test, as well as the distortion of Student’s drawings (distortions which Dr. Howland believes cannot be accounted for by Student’s Cerebral Palsy). Dr. Howland noted that his testing of Student (if the test scores are not adjusted for possible bias) reflect her functioning lower than the 1% range of the general population of twelve-year-old children.
29. Dr. Howland testified as to the usefulness of re-testing Student now, using standardized testing that could then be compared with the testing in the fall of 2002, as well as the importance of considering information from medical evaluations regarding Student’s cerebral palsy and any information regarding her vision and hearing, thereby utilizing a team approach to determining Student’s abilities and limitations. Dr. Howland also recommended, based on his experience providing educational services to children such as Student, that she receive assistance from an ESL teacher as part of her educational services.
English proficiency evaluation .
30. Bourne has always believed that Student speaks English fluently, and therefore never believed it necessary or relevant to assess her English proficiency. However, at the request of Parents’ advocate, Bourne conducted an English proficiency evaluation of Student near the end of the 2002-2003 school year. Parents’ advocate took the position that such an evaluation should occur prior to any further testing of Student’s educational strengths and deficits. Testimony of Sweeney.
31. The English proficiency evaluation by Gail Casassa (Bourne’s Speech Language Pathologist) on June 12 and 13, 2003 was performed “in order to determine [Student’s] level of mastery with the English language.” Exhibit S-23.
32. Ms. Casassa testified that she has a masters of science degree in speech/language pathology, is certified and licensed as a speech/language pathologist and has been practicing in this capacity for ten years, with a specialization in developmental disabilities. She noted that she had previously tested other children regarding their English language proficiency.
33. For her evaluation of Student’s English language proficiency, Ms. Casassa administered the Language Assessment Scales, which consists of two major test batteries – the Language Assessment Scales-Oral (LAS-O) which measures listening and speaking, and the Language assessment Scales, Reading and Writing (LAS-R/W) which measures reading and writing in English. The report indicates that on the LAS-O, Student’s overall scores were 81.4 % correct, falling within the category of “fluent English speaker”. Ms. Casassa testified that as part of her evaluation of Student, Ms. Casassa also spent time informally with Student, observed her in school and spoke with Student’s special education teacher, Ms. Perry.
34. Ms. Casassa’s report gives the results of the LAS-R/W testing, without any quantitative scoring or other summary indicating Student’s overall English proficiency. Ms. Casassa concludes in her report: “Overall results of the Language Assessment Scales revealed that [Student] is a proficient speaker of English given her cognitive ability, and that her language deficits are due to her limited cognitive ability, not her level of proficiency in English.” Exhibit S-23.
35. In her testimony, Ms. Casassa clarified that her testing did not address Student’s cognitive level, and that the references within her report to Student’s cognitive ability could be deleted without altering the substance of her conclusions.
Cultural/linguistic implications of Bourne’s testing.
36. Parents sought the assistance of two persons expert in the area of cultural and linguistic bias in testing, in order to provide additional insight into the question of whether their daughter has a cognitive impairment.
37. Robin Schwarz . Parents’ principal expert was Robin Schwarz. Ms. Schwarz’s testimony and resume indicate that she received her Master of Special Education (learning disabilities) in 1981, that she is a PhD candidate at Lesley University and that she has extensive professional experience over the past twenty years regarding English as a second language (ESL) and learning disabilities. This experience includes serving as a Master Teacher of reading and study skills for adult learning disabled students at the Lab School in Washington, DC from 1984 to 1996, an ESL teacher (Language Specialist) at the English Language Institute, American University, Washington, DC from 1979 to 2000, an Adjunct Professor at American University in 1996, 1998, 2001, 2003 (for example, teaching a course entitled “Learning Disabilities and Foreign/Second Language Learning” in 1996 and a course entitled “ESL and Learning Disabilities” in 2003), a consultant in learning disabilities/English as a second language (ESL) from 1990 through the present, a tutor of learning disabled/ESL students from 1974 through the present, Director of Tutoring Services at the Learning Lab at Lesley University, Cambridge, MA 2000 through the present, and numerous published articles relative to learning disabled/ESL students. Ms. Schwarz further testified that during the past fifteen years, her field of study has focused on review of ESL students who may have been diagnosed with a learning or cognitive impairment, and sorting out the implications of being a non-native speaker of English from any learning or cognitive disability. She noted that for this purpose, she has done “hundreds” of record reviews similar to what she has done for Student, and that although she has not actually administered the standardized tests which have been used for Student, she has studied them. Testimony of Schwarz; exhibit S-1 (resume). During the Hearing, Bourne objected to Ms. Schwarz testifying as an expert regarding Student’s cognitive abilities or the standardized testing related to this diagnosis. Bourne’s objection was overruled on the basis of Ms. Schwarz’ impressive depth and breadth of knowledge and experience regarding children with a profile similar to that of Student, as well as her knowledge of standardized testing as it relates to children who are non-native speakers of English.
38. Ms. Schwarz’s twenty-page report of January 2, 2004 provides a review of the following five evaluations conducted by Bourne (and summarized above) relevant to Student’s cognitive and language abilities and her English proficiency: the speech language evaluation by Ms. Cubellis (exhibit S-10), the psychological evaluation by Ms. Sullivan (exhibit S-14), the summary of academic assessments by Ms. Perry (exhibit S-12), the psychoeducational evaluation by Dr. Howland (exhibit S-11) and the English proficiency evaluation by Ms. Casassa (exhibit S-23). Ms. Schwarz’s report also describes her own informal evaluation of Student, as well as recommendations for Student’s education services.4
39. Ms. Schwarz’s report considers the reliability of Bourne’s testing within the context of Student’s unique history, as explained below.
40. Ms. Schwarz testified that although Student spent the first three years of her life in the United States, both English and Tagalog were spoken in the home, and it is not clear how much opportunity Student had to hear or speak English during this time period. She further noted that Student returned to the United States at eleven years old with little ability to speak English, according to Mother, and apparently for the first time then began to speak and understand English at a more sophisticated level. On the basis of this history, Ms. Schwarz concluded that Student is appropriately considered a non-native speaker of English or an English language learner because her original language is not English.
41. Ms. Schwarz testified that although the English proficiency evaluation performed by Bourne properly concluded that Student is fluent in English, this evaluation determined Student’s competence regarding use of oral English, which is significantly different that competence regarding academic proficiency (including reading and writing). She noted that typically there is a five to seven year gap between a person’s oral proficiency and academic proficiency.
42. In her report, Ms. Schwarz reviewed the potential language and cultural bias of the standardized testing that has been completed by Bourne. She noted that all of Bourne’s testing reviewed by Ms. Schwarz (except the English proficiency evaluation in June 2003) was conducted in September and October of 2002 when Student had only recently entered into the Bourne school system. Also, every test given to her was written for English speakers and, except for the psychoeducational evaluation by Dr. Howland, all were administered in English. Moreover, Ms. Schwarz points out that even when directions are translated, the test question may include cultural or format bias if the person being tested is not familiar with the type of task in question or the object pictured.
43. Ms. Schwarz further noted in her report and testimony that testing instruments developed in the United States incorporate the values of mainstream American culture which Student may not be familiar with. Ms. Schwarz explained that the result, for example, is that Student was asked on one test why doctors must be licensed or why it is necessary to have fire drills, without knowing whether Student’s culture shares the American values of licensing doctors or having fire alarms.
44. Ms. Schwarz’s report further explains the potential for format bias. Interpreting pictures, responding to certain types of questions or knowing how to think about a multiple choice question format are all skills learned within American schools, with skill level improving with practice. Yet, without extensive formal schooling before coming to Bourne, Student may have not been exposed to this kind of skill development.
45. In addition, Ms. Schwarz reported that since Student had little or no formal schooling before entering the Bourne public schools in the fall of 2002, her Tagalog vocabulary is likely to be limited, thereby raising questions regarding the utility of translating the directions into Tagalog. As a result, Ms Schwarz opined that in testing of Student where the “quality of the verbal answer is judged in any way”, the test is likely to measure Student’s English proficiency rather than the cognitive task intended.
46. Ms. Schwarz’s report also cautions that there may be norming bias within the tests administered to Student. This occurs when the population samples used to determine the validity of a test are significantly different than the person taking the test. In general, inferences drawn from tests are likely to be accurate only for populations for which the test has been validated. Ms. Schwarz quotes from the literature which warns that testing a student who is an English language learner with a test instrument written in English and normed on monolingual English speaking students “will yield highly questionable results” which “can lead to damaging consequences” for the student.
47. In addition, Ms. Schwarz’s report reviews several of the specific test instruments utilized by the Bourne evaluators. She explains how tasks on the Sanford-Binet Intelligence Scale test (utilized in the psychological assessment of Student by Leslie Sullivan; exhibit S-14) are intended to measure a student’s expressive language vocabulary through her ability to produce compound or complex sentences. For Student, the test tends to measure how much English she has learned rather than her facility with language per se. See exhibit P-5 (information from the Sanford-Binet Intelligence Scale test).
48. Ms. Schwarz explained in her report how the results of the Goldman Fristoe Test of Articulation (utilized in the speech language evaluation of Student by Linda Cubellis; exhibit S-10) likely reflected interference of Student’s first language (Tagalog) with articulation in her second language (English), rather than reflecting Student’s ability to learn the English phonemes.
49. Ms. Schwarz noted that the tester’s manual for the Peabody Picture Vocabulary Test (also utilized in the speech language evaluation of Student by Linda Cubellis; exhibit S-10) makes clear that the test is first “an achievement test . . . show[ing] the extent of vocabulary acquisition for standard English” and is second “a screening test of scholastic aptitude or verbal ability for persons for whom English is or has been the language of the home and community and the principal language of instruction.”
50. Ms. Schwarz explained that the tester’s manual for the Brigance Diagnostic Comprehensive Inventory of Basic Skills (utilized in the summary of academic assessments by Laura Perry; exhibit S-12) notes that those “not fluent in English” were excluded from the norming samples of the test and specifically suggests that for students with limited English, the test be used to inventory current skills, rather than to measure achievement per se. Yet, in her report, Ms. Perry indicates that she is utilizing this test to assess Student’s educational achievement.
51. Ms. Schwarz explained that the tester’s manual for the Wechsler Intelligence Scale for Children (utilized in the psychoeducational evaluation by Charles Howland; exhibit S-11) notes that those “not fluent in English” were excluded from the norming samples of the test.
52. Ms. Schwarz also noted that the Test of Nonverbal Intelligence (utilized in the psychoeducational evaluation by Charles Howland; exhibit S-11) may carry a cultural and/or value bias because of Student’s lack of familiarity with the situations pictured in the test.
53. In her report, Ms. Schwarz proposed that the evaluations performed by Bourne be considered not from the perspective of informing us what Student cannot do or has not learned, but rather from the perspective of what Student needs to learn. She further opined that, although not looked for by the Bourne testers, their evaluations indicated Student’s success as a learner, particularly over the time period from September/October 2002 (when four Bourne tests were completed) to June 2003. Ms. Schwarz noted that the English proficiency evaluation in June 2003 indicated that Student’s use of language was significantly stronger than when she was tested in the fall of 2002, with a much greater vocabulary range and ability to describe pictures and complete sentences, and that Student is acquiring language “at least at a normal rate”. Ms. Schwarz further opined that Student’s “cognitive abilities can be discerned through her good use of and recognition of more difficult vocabulary.”
54. Ms. Schwarz’s report explains that she performed an informal assessment of Student’s English language skills, visual skills and phonological skills in October 2003 for two and a half hours. Through Student’s lengthy conversation about herself and her family, Ms. Schwarz found that Student mostly spoke in complete sentences and used a wide variety of tenses, including more difficult tenses and tense forms (for example, the present perfect tense, such as “I haven’t been there), with a high degree of accuracy. Ms. Schwarz found Student’s vocabulary not to be sophisticated, but appropriate for her school setting. She found that during her testing, Student talked more and more, with her conversations being witty and appropriate. Student’s use of social language was found to be “highly appropriate and often unexpectedly charming.” Ms. Schwarz concluded that Student “is a very good language learner.”
55. Ms. Schwarz concluded that because of the “severe limitations” of the usefulness of Bourne’s testing and given Student’s “considerable learning potential”, “it is difficult to concur” with Bourne’s assessment of Student as cognitively impaired. She testified, however, that Bourne’s testing was useful in determining Student’s skill level, at that time, in math and language arts.
56. In her report, Ms. Schwarz opined that placement on the basis of a diagnosis of cognitive impairment has likely resulted in education services that are not sufficiently challenging. In particular, Ms. Schwarz expressed concern that an erroneous label of cognitive impairment may become a “self-fulfilling prophesy” and “very damaging to her future development.”
57. Ms. Schwarz also concluded in her report that Student’s placement is apparently not providing her support as an English language learner, and is likely not providing sufficient language enrichment.
58. Finally, Ms. Schwarz made the following specific instructional recommendations in her report and testimony:
· Provide an expert ESL teacher “to help her understand usage and other questions that will arise in reading and writing”, and include a person with expertise in ESL to be a part of Student’s educational team.
· Provide basic instruction in math “with attention paid to her physical limitations during the instruction.”
· An appropriate reading approach “must be found for her.” She noted that the phonemic approach to reading has apparently yielded little progress, and that Student may more effectively learn to read through a “linguistic method.” She recommended that a reading therapist work with Student to determine an appropriate reading program and then to implement this approach directly with Student and/or through training Student’s teachers to apply it.
· Provide multisensory teaching and learning.
· Provide specific help in building core knowledge of science, history, geography and social studies in order to understand reading and participate meaningfully in her classes.
· Instead of relying on standardized testing, continually re-assess Student informally by those working directly with her at school in order to observe what educational approaches and techniques are effective and where Student’s strengths lie so they can be built upon.
· Not place Student in graded instruction until Student has reached a knowledge and skill level commensurate with her age.
· Help parents understand the purpose of the learning plan and educational decisions about their daughter. She testified that a social worker may be helpful in this process.
59. Patricia Abdelal . Parents also engaged the expert assistance of a speech/language pathologist (Patricia Abdelal) who has significant experience testing and working with students from other linguistic and cultural backgrounds. Ms. Abdelal testified that she has a masters degree in speech/language pathology (1982) and a masters degree in bilingual/bicultural education (1981). She explained that she has been certified as a speech/language pathologist for more than twenty years, she is certified as a special education teacher (moderate special education needs) and is certified as an English as a second language (ESL) teacher. She noted that from 1987 to 1997, she was employed by the Dennis-Yarmouth School District as both a speech/language pathologist and a bilingual teacher; she is currently in private practice and in that capacity, works for various school systems.
60. Ms. Abdelal testified that in preparation for this Hearing, she reviewed the following three evaluations (all of which are summarized above): the speech language evaluation by Ms. Cubellis (exhibit S-10), the psychoeducational evaluation by Dr. Howland (exhibit S-11) and the English proficiency evaluation by Ms. Casassa (exhibit S-23).
61. Ms. Abdelal testified that the test instrument used for the English proficiency evaluation by Ms. Casassa is generally used to determine language dominance, not language proficiency. She explained that language proficiency varies from situation to situation, so that English proficiency in a conversation with Ms. Casassa would not test Student’s English proficiency within the academic setting. She also noted that any determination of Student’s cognitive level is beyond the scope of the testing done by Ms. Casassa.
62. Ms. Abdelal testified that the speech/language evaluation by Ms. Cubellis does not indicate that Ms. Cubellis gave any consideration to Student’s cultural background, and that without the evaluator being familiar with and taking into consideration her cultural background, the testing would presumably be biased. Ms. Abdelal explained that even when pictures rather than words are used to test Student, the testing may be biased; failure of Student to respond correctly (for example, with the Peabody Picture Vocabulary Test) may indicate that because of Student’s different cultural background, she is not familiar with the picture presented rather than indicate whether or not she is familiar with the vocabulary being tested.
63. Ms. Abdelal testified that the psychoeducational evaluation by Dr. Howland had the advantage of using an interpreter who understood Student’s language of Tagalog, but the interpreter must be trained for this purpose so that the interpreter does not provide too little or too much information and therefore bias the testing. Ms. Abdelal further explained that in order for the test to be reliable, Student’s language proficiency and language dominance should be first determined so that the tester will know what language should be used for each part of the testing. She also noted that use of a translator (for example, in the Expressive One-Word Picture Vocabulary Test used by Dr. Howland) can invalidate a test because the test is normed through persons speaking English.
64. Ms. Abdelal testified that standardized tests, by themselves, are not sufficient to determine Student’s educational needs and how they should be met because of the inherent likelihood of bias. She recommended other instruments, including observation in natural contexts and open-ended questions, by a team of persons in order to reach an accurate determination of Student’s speech/language needs and how they should be met. She also noted that, in general with children such as Student, appropriate educational services include participation directly or through consultation of a person with ESL expertise.
Bourne’s most recently proposed IEP, for the period 10/16/03 to 10/16/04 .
65. The IEP Team met on October 16, 2003 and as a result of this Team meeting, Bourne prepared a proposed individualized education program (IEP) for Student. This IEP (the most recently-proposed IEP by Bourne) is the subject of the present dispute.
66. Bourne’s proposed IEP for the period 10/16/03 to 10/16/04 provides for the following direct special education and related services: reading/writing language taught by special education staff for an hour each day; mathematics taught by special education staff for an hour each day; physical therapy provided by a physical therapist for a half hour, two times in each six-day cycle; speech/language therapy provided by a speech language therapist for forty minutes, once in each six-day cycle; occupational therapy provided by occupational therapy staff for forty minutes, once in each six-day cycle; adaptive physical education provided by an adaptive physical education teacher for a half hour, once in each six-day cycle. The IEP provides for the following special education and related services to be provided within the general education classroom: academics provided by a mainstream teacher for two hours each day. The IEP provides for the following consultation services: physical therapy consultation provided by a physical therapist for four minutes, once in each six-day cycle; speech/language consultation provided by a speech language therapist for four minutes, once in each six-day cycle; occupational therapy consultation provided by occupational therapy staff for ten minutes, once in each six-day cycle; adaptive physical education consultation provided by an adaptive physical education teacher for four minutes, once in each six-day cycle. Exhibit S-25.
67. Mother accepted the IEP, except for those portions which were rejected. The rejected portions included all references to Student’s having deficient cognitive ability, as well as her placement in a classroom for children with cognitive limitations. Parents also stated certain “wishes” or requests regarding the IEP goals, with the principal concern stated as follows: “Please make all goals measurable so that we can ascertain her progress toward the goals. They should be measurable and attainable within one year.” None of the special education and related services within the IEP were rejected. Exhibit S-25.
Educational and related services during the 2003-2004 school year .
68. Pursuant to the above-referenced IEP, Bourne has taught Student within a substantially separate special education classroom for math and language arts. Student attends mainstreamed classes in science and social studies (with accommodations and an aide). She is mainstreamed for all other classes and activities, including art, world language, technology education, current issues/health and chorus. After school, Student participates in the computer club and basketball. Testimony of Student, Perry; exhibit S-12, S-25.
69. Bourne’s special education teacher who last year and this year has worked directly with Student regarding math and language arts (Ms. Perry) testified that as compared to the four other 6 th grade children and one 5 th grade child with whom Student is placed within her language arts and math special education program, Student falls in the middle, with some children functioning academically and socially at the pre-kindergarten level and some children functioning at the 3 rd grade level for reading and the 4 th grade level for math. Ms. Perry believes that Student currently is functioning at the 1 st grade level for math, at the late kindergarten level for reading (currently she is working on reading one syllable words) and at the kindergarten level for writing. She noted that Student’s inability to read is her greatest limitation to learning.
70. Ms. Perry testified that overall, Student is doing remarkably well, as she has adjusted to the Bourne schools, has made friends, is well-liked by peers and teachers, has gained confidence and has improved her academic skills. She opined that Student has made greater progress so far this year than all of last year, and that her current placement is appropriate. In response to Mother’s request that Student be placed at a lower grade level where she would be able to do the work of the regular education children, Ms. Perry testified that such a placement would be socially detrimental to Student since she has 6 th grade friends and is able to function socially with other children (including regular education children) at her own age level.
71. In response to Mother’s partial rejection of the IEP, Bourne provided no related services (speech/language therapy, occupational therapy and physical therapy). Bourne took the position that although Mother had consented to the related services, there was no agreement on the goals of the IEP, including the goals for all of the related services, and therefore none of the related services would be provided. The parties never reached agreement on the goals, with the result that no related services were provided during the 2003-2004 school year, until ordered by me through a Preliminary Order (following the evidentiary Hearing) on January 14, 2004. At the Hearing, Bourne’s Director of Special Education testified that as a result of not receiving the related services, Student has not been receiving FAPE. Testimony of Sweeney.
72. Bourne’s speech/language pathologist (Ms. Cubellis) testified that Student is in need of speech/language services, that she would benefit from such services in order to develop her vocabulary and therefore have greater access to the educational curriculum, and that such speech/language services are proposed on the most recent IEP but have not been provided to Student because the IEP goals have not been accepted.
73. A second Bourne speech/language pathologist (Ms. Casassa) testified that in order for Student to make progress, she should be exposed to as much language as possible. She testified that she agreed with Ms. Cubellis’ recommendations regarding speech/language services, and further opined that Student would benefit from thirty minutes per week of speech/language consultation to Student’s classroom teachers and, if there is sufficient time within Student’s schedule, two sessions for thirty minutes each of speech/language each week, as compared to the IEP which calls for speech/language therapy for forty minutes, once in each six-day cycle and speech/language consultation for four minutes, once in each six-day cycle. Exhibit S-25.
DISCUSSION
A. Legal standard .
Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act5 and the state special education statute.6 As such, Student is entitled to a free appropriate public education (hereafter, FAPE).7 Neither her eligibility status nor her entitlement to FAPE is in dispute.
FAPE requires that the individualized education program (IEP) be tailored to address Student’s unique needs in a way reasonably calculated to enable her to make meaningful and effective educational progress in the least restrictive environment.8
The issue presented is whether the programming and specialized services embodied in the Bourne’s most recently proposed IEP are consistent with this legal standard .
B. Cognitive impairment .
Although there are a number of points of contention regarding the IEP, the principal issue focused upon by Parents’ advocate in her presentation of evidence is the question of whether Student is cognitively impaired. Parents dispute that Student has such an impairment and therefore are concerned about Student’s placement with children who have such a disability , with the result that Student will be given a limited curriculum and that her teachers will assume that she is not able to learn.
There was a significant amount of evidence, including both testimony and written reports from people who have expertise regarding this issue. There were obvious points of disagreement among the witnesses, including witnesses seeking to discredit the testimony and reports of opposing witnesses. Yet, at the same time, there was significant agreement which I will focus on at the outset.
There was agreement that all of the testing performed to determine Student’s cognitive level was biased. The bias occurs for a variety of reasons. None of the testing was normed on persons with Student’s background of living in the Philippines and apparently speaking Tagalog as her principal language for approximately nine of her first twelve years. There is also significant potential for bias for other reasons – for example, even when non-verbal testing is utilized, Student may not be familiar with or understand (in the same way as children living within the United States) the pictures that are used in the test instrument. In addition, Student’s extremely limited formal education may limit her vocabulary in Tagalog and impede her ability to answer questions or solve problems, apart from any cognitive limitations. Parents’ experts credibly explained at some length through testimony and reports the various ways in which the testing may have been biased, and Bourne’s witnesses did not dispute the potential for bias and, in several instances, explicitly acknowledged within their written reports the potential for bias and the need to be cautious regarding the testing results. Testimony of Howland, Sullivan, Schwarz, Abdelal; exhibits S-11, S-14, P-9.
There was also agreement that the extent of the actual bias of the testing is unknown. For example, Parents’ experts (Ms. Schwarz and Ms. Abdelal) did not identify any particular question on any of the test instruments which would reflect actual bias to this particular Student. In order to determine actual bias, specific test questions would need to be evaluated within the context of Student’s particular cultural and linguistic history. This was not done. Testimony of Sullivan, Schwarz.
There was agreement that none of the testing was able to determine precisely Student’s cognitive abilities or disabilities. This conclusion followed from the potential for testing bias, without knowing the extent of the actual bias for this particular Student with respect to the particular test instruments utilized. Testimony of Howland, Sullivan, Schwarz, Abdelal.
Although it is disputed what, precisely, the testing demonstrated, there was no significant disagreement that the testing performed by Bourne in the fall of 2002 (which included the testing to determine Student’s cognitive abilities) provided information useful in determining Student’s educational abilities and deficits in general so that Student could be initially placed and provided educational services. Testimony of Howland, Sullivan, Schwarz, Abdelal, Cubellis, Perry; exhibits S-10, S-11, S-12, S-14, P-9.
When Student first enrolled in the Bourne Public Schools in the fall of 2002, Bourne needed to attempt to understand educationally a girl who had no educational records, who had no previous formal education within the United States and whose educational history within the Philippines was uncertain. The testing clearly showed that Bourne’s educational services for Student would need to address her severe academic deficits regarding basic math functions and language arts. Testimony of Howland, Sullivan; exhibits S-10, S-11, S-12, S-14.
The principal point in contention is whether the testing of Student can be used to reach a conclusion regarding her cognitive abilities and deficits. The view of Bourne’s experts essentially is that the testing, even with significant allowances made for the potential for testing bias, consistently reflects a significant cognitive deficit. Parents’ experts respond that the potential for bias is sufficiently great that nothing may be concluded from the testing with respect to Student’s cognitive functioning. Resolution of this issue depends in large part on the credibility of the expert testimony and reports.
Although I found all of the experts in this case to be reliable and credible witnesses, I found Bourne’s consulting psychologist (Dr. Howland) particularly so. Dr. Howland combined (1) thirty years of professional experience testing and educating children many of whom had a first language other than English, (2) a sensitivity and appreciation both for Parents’ concerns regarding the extent of the potential bias of standardized testing and for Bourne’s practical need to obtain basic information in order to place Student and provide educational services to Student, and (3) noteworthy candor and thoughtfulness throughout his testimony. Dr. Howland had significantly greater experience and expertise (regarding psychological testing in general and regarding students whose first language is not English in particular) than any of Bourne’s other experts, and he had the advantage of having formally evaluated Student, which Parents’ experts had not done.
I adopt Dr. Howland’s conclusion that Student’s consistent test results give the impression of someone with cognitive deficits and that these deficits would likely place her at the 25% or lower range as compared to other children her age. Testimony of Howland; exhibit S-11.
Having adopted this conclusion regarding what, most likely, the testing results indicate regarding Student’s cognitive impairment, I further find that one must proceed cautiously in the use of such a diagnosis, which has been made on the basis of standardized testing.
I concur with Ms. Schwarz’s concern that it could be a severe disservice to Student to label her as mentally retarded when there is so much uncertainty as to the accuracy of standardized testing for a child with her cultural and linguistic background. I conclude that no long-term educational decisions should be made on the basis of Student’s apparent cognitive disabilities as indicated by the standardized testing to date. This conclusion is supported by the following three points.
1. Bourne’s psychologists made clear that caution should be exercised in drawing conclusions about Student’s cognitive abilities on the basis of standardized testing . In response to a question from Parents’ advocate, Bourne’s consulting psychologist (Dr. Howland) stated that he does not believe that “cognitive functioning of a handicapped child who does not speak English as her first language can be adequately assessed using a few standardized tests.” Dr. Howland then elaborated on his answer by testifying:
To take this situation and say forever more that this is who this child is and what she can do and how she is functioning would be a gross misjustice. If you’re talking about: how is she doing now? [and] what sort of an idea do we have about her functioning?, then you have to do the best that you can with what you have and that includes some standardized tests and it also includes her day-to-day work with teachers and what they notice and what her parent notices and so forth.
Bourne’s school psychologist (Ms. Sullivan) noted in the summary and recommendations section of her report that “[d]ue to the bilingual nature of [Student’s] language processing, [evaluation] results are likely an underestimate of her cognitive abilities and should be interpreted with caution.” The report further stated, near the end, that “it remains unclear how much of [Student’s] difficulties are the result of a language barrier, as well as her Cerebral Palsy.” Exhibit S-14.
2. It is not disputed that Student’s cognitive abilities and deficits need to be understood more broadly through her on-going educational progress within the Bourne Public Schools . Student has made as much progress in the first half of this academic year as in all of the last academic year. Testimony of Perry. After two and a half hours of conversation with Student, Ms. Schwarz found Student’s use of social language to be “highly appropriate and often unexpectedly charming”, that Student’s “cognitive abilities can be discerned through her good use of and recognition of more difficult vocabulary” and that Student is acquiring language “at least at a normal rate”. A more clear and complete picture of Student’s cognitive strengths and weaknesses will be revealed through careful monitoring of her educational progress. Testimony of Schwarz, Howland, Abdelal.
3. Additional evaluations are necessary in order to provide a more complete picture of Student’s cognitive strengths and weakness . As explained more fully below in part H of the Discussion section of this Decision, additional evaluations will be provided which will provide important insights into Student and how her educational needs may be met. In particular, a neuropsychological evaluation will provider greater insight (than the previous psychological testing) into how Student learns and what educational strategies may be successful. In addition, neurological evaluation test results are necessary to understand the educational implications of Student’s cerebral palsy. Testimony of Sweeney, Howland, Sullivan.
Conclusion . Consistent standardized test results give the impression that Student has a cognitive deficit and that these deficits would likely place her at the 25% or lower range as compared to other children her age. However, no long-term educational decisions should be made on the basis of this diagnosis at this time.9
C. Educational services and placement .
Originally, Parents appeared to be seeking placement of Student only with typically-developing children for all subjects, with the result that Student would be with regular education children who have academic skills commensurate with Student’s skill level. There has been no credible testimony to support this view, nor did Parents’ advocate suggest such a placement in her closing argument. Instead, Parents’ advocate explained that Parents are satisfied with Student’s special education classroom and other special education services described within the IEP, except that they are concerned that Student is not learning how to read.
For all of her language arts and math, Student receives instruction in a substantially separate classroom taught by Student’s special education teacher (Ms. Perry). Ms. Perry testified that Student’s academic skills in math and language arts are at the kindergarten to 1 st grade level. Student is grouped with four other 6 th grade children and one 5 th grade child. Ms. Perry explained that Student’s academic skills fall within the middle of this group, and that she believes Student is appropriately placed.
Student has demonstrated that she socializes appropriately with other 6 th graders, and has friends at school. Student would be extremely isolated socially if placed with regular education children who are at Student’s academic level for language arts and math. Testimony of Perry.
For these reasons, I conclude that even were I to find that Student has no cognitive impairment, there would be nothing within the record to persuade me that the academic services or placement provided by Bourne are inappropriate to address her educational needs at this time, except with respect to reading which is separately discussed below. Moreover, the potential inadequacies of Bourne’s reading program would need to be addressed regardless of one’s conclusion regarding Student’s cognitive level.
I further note that after the additional evaluations (discussed separately below in part H) have been completed and after consideration of Student’s continued progress, the IEP Team (with the addition of a person with demonstrated expertise in ESL – discussed separately below in part G) will need to re-consider Student’s educational services and placement.
Conclusion : At this time, there is nothing within the record which indicates that the academic services and placement provided by Bourne are inappropriate, except with respect to reading which is discussed separately below. However, it is apparent that after additional evaluations have been completed and after consideration of Student’s continued progress, the IEP Team will need to re-consider Student’s educational services and placement.
D. Reading .
In her closing argument, Parents’ advocate emphasized Parents’ principal concern that Student is not learning how to read. Parent, in her testimony, similarly emphasized that what she wanted most for her daughter was that she learn how to read. Student testified to her strong motivation to learn how to read, and conversely her frustration that she is not able to do so. Student’s special education classroom teacher (Ms. Perry) similarly testified that the single most significant impediment to Student’s learning is her inability to read.
Ms. Perry testified that although Student has made significant progress in a number of areas during this academic year as well as last, Student currently, as a 6 th grader, is reading at approximately a late kindergarten level, needing “constant repetition” and continuing to work on one-syllable words. Ms. Schwarz, who has experience as a reading therapist, credibly testified that from her time spent with Student informally reviewing her phonological skills, the reading instruction currently being provided Student is not likely an effective approach and that a reading assessment needs to occur in order to find the right reading methodology, which may be a linguistic (as compared to a phonetic) approach.
Although Bourne has taken the position (through the testimony of its Director of Special Education) that Student is making progress in this area, Bourne has not opposed further assessment. Bourne takes the position, however, that any reading assessment should occur after the neuropsychological evaluation, so that the reading assessment and recommendations will benefit from the results of the neuropsychological evaluation, and result in a single recommendation regarding the reading program (rather than the possibility of making two changes to Student’s reading program). Parents’ advocate seeks a reading assessment as soon as possible and is concerned about waiting for the neuropsychological evaluation which may take months to complete.
I conclude that Bourne should provide or arrange for a reading therapist or specialist to begin working with Student as soon as possible in order to make an assessment of Student’s reading needs and how they should be met. The purpose of the assessment is to seek to determine whether the current reading program utilized by Bourne or some other reading program (including but not necessarily limited to a linguistic reading program) should be used with Student. The reading therapist or specialist should also make any additional recommendations regarding reading instruction for Student, including but not necessarily limited to the implementation of any new reading program and the need for any additional reading instruction. The reading therapist or specialist shall also make recommendations as to whether any new reading program or instruction should be implemented immediately or await the results of the neuropsychological evaluation. In the event that the neuropsychological evaluation is likely to occur promptly (for example, within one month), Bourne may renew its request to me that implementation of any changes in Student’s reading services be delayed until the completion of the neuropsychological evaluation.
Conclusion . A reading therapist or specialist should begin working with Student as soon as possible in order to determine Student’s reading needs and how they should be addressed.
E. Related services .
There is no dispute that Student needs the related services (speech/language services, occupational therapy and physical therapy) described in Bourne’s proposed IEP. The IEP calls for speech/language therapy provided by a speech language therapist for forty minutes, once in each six-day cycle; occupational therapy provided by occupational therapy staff for forty minutes, once in each six-day cycle; and physical therapy provided by a physical therapist for a half hour, two times in each six-day cycle. Exhibit S-25.
Mother accepted this IEP, except for those parts of the IEP which she explicitly rejected. Mother did not reject the related services, but she did indicate concern about the goals described within the IEP. The following reflects Mother’s rejection of the parts of the IEP related to the goals:
Please refer to correspondence dated: 5-27-03 to Ms. Linda Cubellis from Toni Saunders stating what the parents wishes are for appropriate goals for [Student].
Please make all goals measurable so that we can ascertain her progress toward the goals. The should be measurable and attainable within one year.
Exhibit S-25 (second page, listing Parent’s objections to the IEP).
Bourne’s response to the above-quoted concerns of Mother was to decline to provide any of the related services described within the IEP. Bourne took the position that until there was agreement on the goals for related services, no related services should be provided. Testimony of Sweeney.
As a result, during the life of the most recent IEP (and actually much longer), Student has received none of the related services which both parties agree are appropriate and needed, until such services were provided pursuant to my Temporary Order of January 14, 2004. Bourne’s Director of Special Education (Mr. Sweeney) testified during the Hearing that as a result of not receiving these related services, Student had been (and was continuing to be) denied FAPE.
It is not unusual that parties to a dispute are not able to agree on certain goals contained within the IEP. However, what is unusual is that this aspect of the dispute would result in a complete denial of services with neither party bringing this issue forward for resolution through the Hearing process, particularly where there is an open case before me as a BSEA Hearing Officer. When this occurs, the processes for determining a student’s educational needs and providing services to meet those needs have failed her.
During the months prior to the evidentiary Hearing, in order to determine the precise issues that would need to be addressed at Hearing, I directed the parties to advise me in writing. Parents’ advocate filed a December 8, 2003 statement of the contested issues to be decided at the evidentiary Hearing, which focused only on the issue of cognitive impairment and its implications for Student’s placement and services. Bourne’s December 12, 2003 response focused specifically on the issue of cognitive impairment and generally on the question of whether its proposed IEP is appropriate. In addition, in its December 12 th response, Bourne renewed its request that this matter be dismissed for lack of prosecution.
It was only during the evidentiary Hearing on January 12 and 13, 2004, that it became apparent to me through the testimony of Bourne witnesses that Student was not receiving any of the related services described within the IEP. With consent of both parties at that time, I then broadened the scope of the Hearing to include all of the related services in the IEP.
In most disputes, of course, it is the parents who take the initiative to resolve a dispute where the result of that dispute is a denial of services that parents believe to be appropriate for their son or daughter. In the present dispute, Parents did not press the issue of related services or contested goals to Hearing. Instead, they chose to focus exclusively on the issue of Student’s cognitive abilities and delayed the Hearing until they were prepared to address this issue through expert testimony. It is not apparent why they chose to take this approach, nor is it relevant to this Decision.
Independent of what parents may or may not be willing or able to do to ensure that services are provided to their son or daughter, a school district bears legal responsibility pursuant to state DOE special education regulations to take steps to resolve any dispute which interferes with provision of FAPE to a student. This obligation is triggered once it becomes apparent to the school district that special education and related services are not being provided due to parents’ refusal to consent to the IEP and, as a result, the student is being denied FAPE. At this point in time, the school district has an obligation to request that the BSEA resolve the dispute.10
As noted above, Bourne made clear at the Hearing, through the testimony of its Director of Special Education, that it believed that Student was being denied FAPE. Having failed to bring this matter forward for resolution by the BSEA, Bourne is responsible for providing Student with compensatory services to make up for the lack of any related services from 10/16/03 (the initial date of the most recently proposed IEP) through the date upon which related services began.11
At this point in time, it is uncertain what the compensatory services should include. There was no evidence presented on this issue and I have no basis to determine whether Student would benefit from additional related services at this time or in the near future.
The IEP Team should consider this issue and seek to come to agreement on what compensatory services should be provided. As compensation, the IEP Team may decide to provide Student with services that would be most helpful to her educational development even though they may not include the related services which she has missed – for example, an intensive reading program during the summer might address Student’s most pressing needs at this time. If the IEP Team is not able to reach agreement on the question of what compensatory services should be provided Student, the matter should be referred to me for resolution pursuant to my continuing jurisdiction over this dispute.
I now turn to the disputed goals within the IEP. I note, at the outset, that Parents objected to all of the goals within the IEP (rather than only the goals related to the related services) as not being measurable and ascertainable within one year. There was minimal evidence and argument on this issue. Parents submitted no evidence on this issue. Parents have not argued that the goals deny Student FAPE. Bourne provided the testimony of its occupational therapist and speech/language pathologist, who supported the goals as appropriate and measurable. Testimony of Bass, Cubellis. I conclude that the goals within the IEP are appropriate.
Finally, I note that there was evidence that the related services, as proposed within the IEP, may not be sufficient. This evidence came from one of two Bourne speech/language pathologists who testified at the Hearing. She recommended that the speech/language consultation to teachers be increased to thirty minutes per week and that, if there is time within Student’s schedule, the direct speech/language services be increased to two sessions of thirty minutes per week. There was no testimony as to whether there is sufficient time within Student’s schedule to accommodate the additional services, nor has either party argued in favor of the additional services.
On the basis of such a limited record, I decline to increase the speech/language services at this time. However, the IEP Team shall consider this issue and seek to reach agreement on the amount of direct speech/language services as well as consultation of the speech/language pathologist. If the IEP Team is not able to reach agreement on this issue, it should be referred to me for resolution pursuant to my continuing jurisdiction over this dispute.
Conclusions . Bourne is responsible for providing Student with compensatory services to make up for the lack of any related services from 10/16/03 (the initial date of the most recently proposed IEP) through the date upon which related services began. The IEP Team will consider this issue and seek to come to agreement on what compensatory services should be provided. If the IEP Team is not able to reach agreement, the matter will be referred to me for resolution pursuant to my continuing jurisdiction over this dispute. Student’s IEP Team will also consider whether additional direct speech/language services as well as additional consultation of the speech/language pathologist are appropriate and seek to reach agreement on this issue. If the IEP Team is not able to reach agreement, the issue will also be referred to me for resolution pursuant to my continuing jurisdiction over this dispute. I have also concluded that the goals within the IEP are appropriate.
F. Accommodations .
As discussed above, Student does not know how to read. Similarly, she is unable to write beyond the kindergarten level. Yet, Student is placed in 6 th grade mainstream classes for social studies and science, with support and accommodation. Student is being asked by her teachers to prepare written reports, a task which she is typically unable to accomplish without assistance from others. Testimony of Perry; exhibit S-25.
Bourne shall accommodate Student by utilizing appropriate, alternative methods of Student’s completing assignments that would otherwise require Student to write at a skill level beyond her ability level. This accommodation should not require extensive assistance from Parents. For example, it would be inappropriate to expect that Student’s Parent would transcribe a report or other written assignment. As possible examples of appropriate accommodations, it may be appropriate to allow Student to prepare a tape recording of the report or other assignment, or for a Bourne employee to transcribe the report or other written assignment.
I make one general recommendation which I anticipate Bourne would likely implement without my calling it to their attention. It was apparent from the evidentiary Hearing that Parents have certain strongly-held preferences, some of which may arise from their culture. For example, Parents are concerned about certain related services being provided alone by a person of the male gender, and Parents do not want the school to teach certain skills that would normally be addressed through occupational therapy. It is recommended that Bourne staff work carefully and closely with Parents and their advocate in order to identify, understand and seek to accommodate these concerns if Bourne is able to do so without denying FAPE, principally for the purpose of respecting the Parents, their culture and their role in raising Student, and in order to seek to ensure a cooperative and constructive relationship between Bourne and the Parents. I leave to Bourne’s discretion how this recommendation should be implemented.
Conclusion . Bourne needs to accommodate Student by utilizing appropriate, alternative methods of Student’s completing assignments that would otherwise require Student to write at a skill level beyond her ability level.
G. Student as an English language learner .
The only witnesses with expertise regarding English as a second language (Bourne’s consulting psychologist and Parents’ two experts) were in agreement that ESL services need to be considered for Student. Ms. Schwarz testified regarding this matter in the most detail. She explained that although Student spent the first three years of her life in the United States, both English and Tagalog were spoken in the home, and it is not clear how much opportunity Student had to hear or speak English during this time period. She further noted that Student returned to the United States at eleven years old with little ability to speak English, according to Mother, and apparently for the first time then began to speak and understand English at a more sophisticated level. On the basis of this history, Ms. Schwarz concluded that Student is appropriately considered a non-native speaker of English or an English language learner because her original language is not English.
Bourne’s Director of Special Education takes a different view, believing that Student is fluent in English. Testimony of Sweeney. (I note that Bourne did not provide any basis for me to conclude that its Director of Special Education has any particular expertise in this area.)
The English proficiency evaluation, which concluded that Student is fluent in English, would appear to support Mr. Sweeney’s position. However, Ms. Schwarz and Ms. Abdelal were persuasive (and there was no opposing evidence) that the English proficiency evaluation of Student measured her oral language abilities in English, which all agree are excellent, but did not measure her academic proficiency in English. Ms. Schwarz explained that typically academic proficiency is five to seven years behind oral proficiency.
For these reasons, I find that Student is a non-native speaker of English (or an English language learner) and should be considered a candidate for ESL services. Student’s IEP should be amended to include this notation.
Although it may become clear in the future that ESL services are necessary, I have no evidentiary basis from which I would now be able to determine the nature or extent of what services are needed. Instead, I conclude that, as a first step, the IEP Team needs to include someone with expertise in ESL who can become familiar with Student and her unique educational needs, and then advise the Team members regarding services in this area.
Accordingly, Bourne shall ensure that a person with demonstrated expertise and experience in ESL joins Student’s IEP Team for the purpose of advising the Team regarding Student’s need for an ESL evaluation and/or ESL services, or if Bourne does not presently have a staff member with this expertise, Bourne shall engage a consultant who will make recommendations to the IEP Team for these purposes.
Conclusion . Student is a non-native speaker of English (or an English language learner) and should be considered a candidate for ESL services. A person with demonstrated expertise and experience in ESL will join Student’s IEP Team for the purpose of advising the Team regarding Student’s need for an ESL evaluation and/or ESL services, or if Bourne does not presently have a staff member with this expertise, Bourne will engage a consultant who will make recommendations to the IEP Team for these purposes.
H. Further evaluations .
Although there has been enough evidence presented to persuade me that the most recently proposed IEP should be implemented, with several changes discussed above, it became apparent through the course of the Hearing that further evaluation is necessary before one may confidently conclude that Student’s educational needs have been adequately understood. Accordingly, a number of additional evaluations must occur (and the Team will need to consider these evaluations and perhaps revise the IEP) before it may be determined whether Bourne’s proposed educational and related services are tailored to address Student’s unique needs in a way reasonably calculated to enable her to make meaningful and effective educational progress, and thereby meet the FAPE standard.
Functional vision evaluation . There was unopposed testimony in support of a functional vision evaluation of Student. Testimony of Sweeney, Bass. The parties have agreed that such an evaluation should occur.12 As noted in the January 14, 2004 Temporary Order , Bourne will provide or arrange for a functional vision evaluation to occur no later than February 13, 2004.
Neuropsychological evaluation . There was unopposed testimony in support of a neuropsychological evaluation of Student. Testimony of Sweeney, Sullivan. The parties have agreed that such an evaluation should occur.13 The neuropsychologist conducting the evaluation should have extensive experience and expertise evaluating children whose first language is not English. Parents’ advocate should have an opportunity to review the credentials of the proposed evaluator. No later than February 20, 2004, Bourne will identify the neuropscychologist and schedule the neuropsychological evaluation, to occur as soon thereafter as possible.
Neurological evaluation . There was unopposed testimony that Bourne needs to see the results of any neurological evaluation that may have been completed when Student returned to the United States, or if no such evaluation exists, a neurological evaluation will need to be performed. Testimony of Sullivan, Sweeney. The parties are in agreement as to the importance of such an evaluation.14
During the Hearing, Parents’ advocate agreed that she would seek to obtain consent from Parents to obtain for the School District a copy of all of Student’s medical records. In the event that such medical records do not provide sufficient information regarding Student’s Cerebral Palsy, a neurological evaluation may be necessary.
Reading assessment . This is discussed above in part D of the Discussion section of this Decision.
ESL evaluation . There was testimony in support of an evaluation to determine Student’s needs for English as a second language (ESL) services. Testimony of Schwarz. Bourne opposes this evaluation as being unnecessary. Parents’ advocate has taken the position that it may be sufficient to have an expert regarding ESL become part of the IEP Team rather than to make a decision at this time to have an ESL evaluation.
In this Decision, I have already concluded that an ESL expert should become part of the IEP Team or Bourne should engage a consultant. I leave it to the Team, with the assistance of the ESL expert or consultant, to consider the need for any further evaluations in this area. I decline to order an ESL evaluation at this time.
Conclusion . The following evaluations are needed: a functional vision evaluation, a neuropsychological evaluation by a neuropsychologist with extensive experience and expertise evaluating children whose first language is not English, and a reading assessment. A neurological evaluation may also be needed if Bourne is not able to obtain the records of a previous, adequate neurological evaluation.
I. Continuing Jurisdiction .
During the evidentiary Hearing, I suggested to the parties that it may be appropriate for me to retain jurisdiction for a limited period of time. The parties did not oppose this suggestion. The basis for my continuing to oversee this dispute is follows.
As noted above, during the course of this proceeding, it has become apparent that it is not yet possible to determine the appropriateness of the special education and related services described within the IEP without further evaluations and consideration by the IEP Team. I have described in a separate section above the additional evaluations which are to occur.
In addition, the IEP Team will need to consider and seek to resolve questions regarding the nature and scope of compensatory services as well as possible additional speech/language services that were recommended by Bourne’s speech/language pathologist, all as described above.
In combination with these various areas which will need to be addressed (first by the parties and then by the IEP Team) is the history of the parties being unable to resolve certain issues (for example, whether the goals within the IEP are sufficiently objective) informally and yet not bringing these issues to the BSEA for resolution. Similarly, I note that more than one and a half school years have gone by with no progress being made towards obtaining a neurological evaluation, without which it is not possible to understand the educational implications of Student’s Cerebral Palsy. This history makes it appear unwise to leave it to the parties, without some continuing oversight by the BSEA, to work out the many considerations which remain.
For all of these reasons, I find it necessary at this juncture to provide continuing oversight, for a limited period of time, to ensure that the remaining issues are either resolved informally by the parties or are addressed promptly by me through another evidentiary Hearing.
My jurisdiction will continue only until any of the following occurs: (i) the additional evaluations described above have been completed and a new IEP is then proposed by Bourne and agreed upon in full by Parents, (ii) a final Decision is issued by me, determining the appropriate special education and related services for Student or (iii) upon written request of either party or upon my own initiative, I determine at any time that it no longer is appropriate to retain jurisdiction.
ORDER
Bourne shall modify its most recently proposed IEP (exhibit S-25) by (1) adding an accommodation of utilizing appropriate, alternative methods of Student’s completing assignments that would require her to write at a skill level beyond her ability level (the accommodation is described more fully within part F of the Discussion) and (2) including a notation that Student is an English language learner and therefore may be a candidate for ESL services. With these two modifications, Bourne shall implement the IEP in all respects.
Bourne shall arrange or provide for the following: (1) a functional vision evaluation to occur no later than February 13, 2004; (2) a neuropsychological evaluation by a neuropsychologist with extensive experience and expertise evaluating children whose first language is not English, with the name of the neuropsychologist who will perform the evaluation and the starting date of the evaluation to be identified by February 20, 2004; (3) a reading therapist or specialist to begin working with Student in order to make recommendations regarding Student’s reading program and reading services and to make recommendations as to whether any new reading program and services should begin prior to the completion of the neuropsychological evaluation, with the name of the reading specialist or therapist and the starting date of his/her working with Student to be identified by February 20, 2004; (4) a person with demonstrated expertise and experience in ESL to join Student’s IEP Team for the purpose of advising the Team regarding Student’s need for an ESL evaluation and/or ESL services, or if Bourne does not presently have a staff member with this expertise, a consultant who will make recommendations to the IEP Team for these purposes, with the name of the ESL expert or consultant and the starting date of that person’s work to be identified by February 20, 2004; (5) compensatory services to make up for the lack of any related services from October 16, 2003 forward; and (6) an IEP Team meeting to consider compensatory services and the need for additional speech/language services, with the date of the Team meeting to be identified by February 20, 2004.
No later than February 20, 2004 , Bourne shall provide to the Hearing Officer and opposing party a written status report which includes, but need not be limited to, the following: (1) the status of the functional vision evaluation, (2) the name of the neuropsychologist who has been engaged to perform the neuropsychological evaluation and the date on which the evaluation will begin, (3) the name of the reading therapist or reading specialist who has been engaged to begin working with Student in order to determine her reading needs and how they should be met, and the date by which the reading therapist or specialist will begin this work, (4) the name of the ESL expert who will advise the IEP Team (or the ESL consultant), and the date by which said advising will begin, (5) the date by which the IEP Team will meet to consider additional speech/language services and compensatory services and (6) an update on whether Bourne has been able to obtain the records of a previous neurological evaluation and if not, whether a neurological evaluation should be scheduled.
By the Hearing Officer,
William Crane
Dated: January 30, 2004
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL
Effect of the Decision
20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must seek such stay from the court having jurisdiction over the party’s appeal.
Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).
Compliance
A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appeals contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).
Rights of Appeal
Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).
Under Massachusetts General Laws, Chapter 30A, Section 14(1), appeal of a final Bureau decision to state superior court must be filed within thirty (30) days of receipt of the decision.
The federal courts have ruled that the time period for filing a judicial appeal of a Bureau decision in federal district court is also thirty (30) days of receipt of the decision, as provided in the Massachusetts Administrative Procedures Act, M.G.L. c.30A . Amann v. Town of Stow , 991 F.2d 929 (1 st Cir. 1993); Gertel v. School Committee of Brookline , 783 F. Supp. 701 (D. Mass. 1992).
Therefore, an appeal of a Bureau decision to state superior court or to federal district court must be filed within thirty (30) days of receipt of the Bureau decision by the appealing party.
Confidentiality
In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
Record of the Hearing
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.
1
Ms. Abdelal testified by speaker phone.
2
Dr. Howland testified by speaker phone.
3
Exhibit S-25.
4
Bourne has placed into evidence an earlier version of Ms. Schwarz’s report. Exhibit S-28. It was this earlier draft that was reviewed by the IEP Team. The most recent draft, exhibit P-9, is being considered by me as Ms. Schwarz’s final report, with the knowledge that Bourne did not have an opportunity to have an IEP Team review it prior to the evidentiary Hearing. In some disputes, it would be important that the Team review the final version of a report prior to my considering it within the context of a Hearing; this is not such a dispute.
5
20 USC 1400 et seq .
6
MGL c. 71B.
7
MGL c. 71B, ss. 1 (definition of FAPE), 2, 3.
8
For a more complete explanation of this standard and the legal authorities upon which it is based, see In re: Arlington , 37 IDELR 119, 8 MSER 187, 193-195 (SEA MA 2002). See also 603 CMR 28.05(4)(b) (Student’s IEP must be “ designed to enable the student to progress effectively in the content areas of the general curriculum”); 603 CMR 28.02(18) (defining the phrase “ progress effectively in the general education program”).
9
Bourne does not necessarily dispute the limited usefulness of the current diagnosis of cognitive impairment. Bourne’s Director of Special Education (Mr. Sweeney) testified that he would have no objection to changing any reference to “cognitive impairment” within Student’s IEP to “multiple disability”.
10
603 CMR 28.07(1)(b). Bourne has taken the position that it expressed concern about this issue to the Hearing Officer in the past. Expressions of concern are not sufficient when they do not actually alert the Hearing Officer to the fact that Student is not receiving the related services set forth within the IEP because of an on-going dispute between the parties. I also note that on repeated occasions Bourne has sought to have the entire matter dismissed by the BSEA, thereby seeking the exact opposite result of their obligations, pursuant to DOE regulations, to have the dispute regarding related services resolved by the BSEA so that the student will be able to receive the services it believes are appropriate. Had the matter been dismissed by me, one can only assume that the parties would have continued to dispute the IEP goals, and Bourne would have continued indefinitely to provide no related services to Student.
11
The parties have put no previous IEPs at issue in this dispute and, for this reason, I consider only Bourne’s most recently proposed IEP.
12
Bourne’s occupational therapist (Ms. Bass) testified that a functional vision assessment should be done in order to have a more complete picture of Student’s abilities and deficits. Bourne’s Director of Special Education (Mr. Sweeney) testified that a functional vision evaluation would provide information useful to Bourne to help guide its instruction of Student. Parents’ advocate agreed with this recommendation.
13
Bourne’s school psychologist (Ms. Sullivan) testified that updated psychological testing would now be helpful. She recommended, however, that in lieu of another psychological test, a neuropsychological test be performed in order to obtain a more in-depth and comprehensive evaluation of Student. Bourne’s Director of Special Education (Mr. Sweeney) testified that he supports doing a neuropsychological evaluation as it would provide practical insights into the ways that Student learns. Parents’ advocate agreed with this recommendation.
14
Bourne’s school psychologist (Ms. Sullivan) testified that Bourne had no information regarding Student’s Cerebral Palsy, other than a diagnosis, and that it would be useful to find out, through an evaluation, how Student’s cerebral palsy is affecting her education. Bourne’s Director of Special Education (Mr. Sweeney) testified that Bourne needs current medical records so that Bourne would have more information regarding Student’s Cerebral Palsy and its implications on Student’s education. Parents’ advocate agreed with the need for Bourne to have neurological evaluation test results.