COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Sutton Public Schools BSEA #05-3840
DECISION
This decision is issued pursuant to 20 USC Sec. 1400 et seq. (Individuals with Disabilities Education Act), 29 USC Sec. 794 (Section 504 of the Rehabilitation Act); MGL c. 71B (the Massachusetts special education statute; “Chapter 766”); MGL c. 30A (the Massachusetts Administrative Procedures Act), and the regulations promulgated under these statutes.
Overview
The subject of this appeal is a now 10.5 year old boy with a complex profile including severe expressive and receptive language delays, apraxia of speech, and related developmental delays. From preschool until approximately March 2005, Student received special education services from the Sutton Public Schools (Sutton or School) as well as supplemental services and therapies that Parents obtained and funded privately. In February 2005, Sutton proposed an IEP calling for, among other things, placement in a substantially separate language-based classroom and various related services. In approximately March 2005, Parents unilaterally removed Student from the Sutton Public Schools and instead obtained services from the Lindamood Bell Center in Arlington, which is an unapproved private provider of reading-related tutorial services. Over the ensuing months, Parents added and paid for private services (speech/language anc occupational therapy, tutoring, and others) in addition to the Lindamood- Bell instruction, thus assembling a package of services that has comprised Student’s educational program until the present. Parents contend that the array of services that they have put together constitutes an appropriate educational program for Student. They seek reimbursement for their expenses in from March 2005 forward as well as prospective funding. The School seeks a determination that the IEP and services proposed in February 2005, as amended in June 2005, were appropriate for Student when proposed, that the programming put together by the Parents deprives the Student of a free, appropriate public education, and that the School has no responsibility for funding the private services obtained by Parents.
Procedural History
On March 1, 2005, the Sutton Public Schools (Sutton or School) filed a hearing request with the Bureau of Special Education Appeals (BSEA) alleging that the Parents’ action in enrolling Student in the Lindamood Bell program did not provide Student with access to the general curriculum or with instruction in content areas such as science and social studies; therefore, the Parents’ actions deprived Student of a free, appropriate public education (FAPE). Moreover, the School asserted, the IEP and placement that it proposed in February 2005 would provide Student with FAPE. The School sought the relief outlined in the preceding paragraph.
The initial hearing date assigned was March 24, 2005. On March 15, 2005, the School requested a postponement of the initial date. The postponement was granted.
On March 25, 2005, the Parents, through counsel, filed six Counterclaims, alleging (1) that Student was not provided with FAPE at the Sutton Schools, and Sutton should reimburse them for the cost of enrolling Student in the Lindamood-Bell Center in spring of 2005 and for other expenditures including tutoring; (2) Sutton had not proposed an appropriate program for 2005-2006 and “should propose one or fund an outside placement that will provide one;” (3) Sutton’s proposed summer 2005 program will not prevent substantial regression and Student should, therefore, reimburse Parents for the cost of their summer program; (4) Sutton should provide “compensatory education” for their alleged failure to provide FAPE to Student; (5) Sutton improperly disclosed confidential information in violation of relevant statutes and should compensate Student for such disclosure; (6) Sutton has discriminated against Student on the basis of disability in violation of Section 504 of the Rehabilitation Act, the Americans with Disabilities Act, 24 USC §1983, and Article CXIV of the Massachusetts Constitution, and, therefore, should pay damages.
A prehearing conference was held on May 19, 2005. That same day, a Notice of Hearing was issued for August 2 and 3, 2005. On June 6, 2005, the School requested a postponement of these hearing dates, which request was granted. Between June and October, 2005, the parties attempted to resolve this matter informally. Several conference calls took place during during this period, to address the progress of settlement efforts as well as discovery and evidentiary issues. On October 5, 2005, the hearing was again rescheduled for November 17 and 18, 2005, but was subsequently postponed at the request of Parents to December 5 and 7, 2005. On November 28, 2005 the Parties jointly requested yet another postponement, on the grounds that they were in the process of “exploring and examining other programs for [Student’s] placement.” On December 9, 2005, an order was issued giving notice of a hearing on January 30 and February 1, 2006, with no further continuances absent exigent circumstances or mutual agreement of the Parties and approval of the Hearing Officer. Those dates were then postponed until May 23, 24, and 25, 2006, at the request of the parties, based on ongoing settlement negotiations. After multiple additional postponements granted at the request of both parties, the case was administratively transferred to this Hearing Officer and a hearing was ultimately held on June 28, June 29, July 12, 13, August 8, August 9, October 11, and October 12, 2006 at the offices of Catuogno Court Reporting Services, Worcester, MA. Both parties were represented by counsel. Each party presented documentary evidence and examined and cross-examined witnesses. After multiple requests by the parties for extensions of time to file their briefs, closing arguments were filed on February 28, 2007 and the record closed on that day.
Those present for all or part of the proceeding were:
Student’s father
Student’s mother
Kirsten A. Esposito Special education Director, Sutton Public Schools
Margo Austein Special education Director, Sutton Public Schools
Gina DeCaro Special education teacher, Sutton Public Schools
Jane Oleksyk Speech/language pathologist, Sutton Public Schools
Cynthia J. Beaudoin Occupational therapist, Sutton Public Schools
Elaine Valk Speech/language assistant, Sutton Public Schools
Tracy Kolofsky Sutton Public Schools
Shelley Velleman Speech/language pathologist
Jennifer Yovino Private tutor for Student
Jasmine Urquhart Private speech therapist, for Student, Children’s Speech & Language Services
Randi Loeb Children’s Speech & Language Services
[Illegible] Children’s Speech & Language Services
Kathy Carley Private occupational therapist for Student, Project CHILLD
Tara Reynolds Lindamood-Bell Center, Arlington
Naomi Chedd Educational Consultant
Daniel T. S. Heffernan, Esq. Attorney for Parents
Regina Williams Tate, Esq. Attorney for Sutton Public Schools
Carolyn Saad Law Clerk, Sutton Public Schools
Laurie Jordan Court Reporter
The official record of the hearing consists of Parents’ Exhibits 1 through 175, School’s Exhibits 1 through 133, the tape recordings of oral testimony and argument elicited at the hearing, and an eight (8) volume transcript of produced by the court reporter.
ISSUES PRESENTED
The issues presented for hearing are:
1. Whether the IEP and placement that proposed by Sutton in its IEPs issued on or about February 15, 2005 and June 22, 2005 were, at the time proposed, reasonably calculated to provide Student with a free, appropriate public education.
2. If not, whether the services obtained by the Parents from March 2005 forward are appropriate and provide Student with FAPE, such that Sutton should reimburse Parents for expenses incurred in providing these services, and fund such services prospectively.
3. Whether Sutton improperly disclosed student record information about Student and, as a subsidiary issue, whether the BSEA has jurisdiction over the issue of the alleged disclosure;
4. Whether Sutton discriminated against Student in violation of §504 of the Rehabilitation Act, the Americans with Disabilities Act, and the Massachusetts Constitution and as such is liable for damages to Student.
POSITION OF SCHOOL
At all relevant times, Sutton has provided Student with intensive, highly specialized programming and services that appropriately addressed his very complex needs. Moreover, Sutton has continually modified and refined Student’s program to incorporate evaluations and recommendations from experts retained by both the School and the Parents. Student has made significant progress in Sutton’s programs, particularly in light of the severity and complexity of his disabilities. The IEPs and placement proposed by Sutton in February and June 2005 reflect and incorporate elements of all pertinent evaluations and were reasonably calculated to provide Student with FAPE. Although Sutton asserts that its proposed program was appropriate, it was also willing to fund an out of district program—the Cottting School or South East Coastal Collaborative—in lieu of its in-house placement, at the Parents’ option.
Additionally, in March 2005, Sutton could only offer an IEP that reflected the information it had at that time. Obviously, even if Student subsequently made progress in Parents’ program, which he did not, Sutton cannot be liable for reimbursing Parents based on developments arising after that date. Moreover, Sutton cannot be required to reimburse Parents for instituting a placement that Sutton itself could not have implemented in March 2005, i.e., in an unapproved instructional program (Lindamood-Bell) that did and does not provide a full complement of educational services.
As the party challenging Sutton’s IEP, Parent bears the burden of persuasion in this case, and has not produced the requisite evidence to prove Sutton’s program to be inappropriate. Even if the Hearing Officer considers the Parents’ program, however, the Hearing Officer must find that Parents’ unilateral placement does not provide Student with FAPE. The program consists of a hodgepodge of therapies and supplemental services, with little or no coordination or consistency among providers, no reliable measures of Student’s progress, little or no exposure to the general curriculum, and isolation from peers. Sutton maintains that Student has not made meaningful progress in Parents’ program, and has even regressed in some areas; therefore, Sutton cannot be compelled to fund the Parents’ program.
Finally, Parents’ are precluded from receiving reimbursement because of their failure to timely notify Sutton that they were seeking public funding for the services they were obtaining privately.
POSITION OF PARENTS
Student has a highly unusual profile, with complex, interrelated, neurologically based disabilities. He requires a unique program that consists primarily of repetitive, intensive, one-on-one instruction in order to make effective progress. At the time Parents removed Student from Sutton, he had not been making effective progress. He was not making measurable gains within the school setting, was not learning to generalize his skills, and so was not receiving a FAPE. Moreover, the program that Sutton proposed for Student is inappropriate. The program is not sufficiently intense in terms of level of intensity and methodology. The program provides neither the one-on-one instruction that Student requires nor an appropriate peer group. Finally, the private programs proposed by Sutton were not appropriate for Student.
On the other hand, the program created by the Parents does provide Student with a FAPE because it provides the intensive, methodical, individual instruction that is required to meet Student’s needs. Student has made progress in the Parents’ program, but needs continue with this intensive, one-on-one instruction in order to continue progressing. Because of the severity of Student’s communication challenges, his social interactions within the academic context are not particularly meaningful. Student must have more functional communication before he can benefit from peer interaction within the context of academic instruction. In any event, Student does interact informally with peers at various times when he is not being directly instructed or receiving therapy. Additionally, Parents have placed Student in a social/sports program at Beverly School for the Deaf to enable him to enjoy recreational activities with peers.
Parents’ position is supported not only by his current providers, but also by expert evaluators who emphasize that Student currently must be taught individually, and experience social interaction separately from academic instruction.
FINDINGS OF FACT
Profile of Student
1. Student is a now-10.5 year old child who lives in Sutton with Parents. Student has many strengths. He is universally described as a delightful, friendly, polite, happy, endearing child. Despite his many challenges, which will be described below, Student enjoys relating to peers and adults, is a hardworking, cooperative learner, and maintains a positive, upbeat attitude. He is interested in learning, in activities, and in the world around him. Children want to be friends with Student, and adults thoroughly enjoy working with him.
2. At the age of 3.5 months, Student developed infantile spasms, a type of seizure disorder. Some months later he was diagnosed with a second type of seizure. Student received medical treatment, and has been seizure-free for several years; however, Student’s seizure disorders caused significant delays in all areas of his development, including gross motor, fine motor, self care, cognition, and language skills.
3. When he was approximately three years old, Student was diagnosed with verbal apraxia and dysarthria (among other conditions). Verbal apraxia is a disorder of motor speech planning and programming, in which the neurological signals between the brain and the speech-producing muscles are not transmitted effectively. As a result a child with apraxia has difficulty learning how to produce and sequence sounds; i.e., to put together the elements of speech and assemble them into syllables, words, and sentences. (Velleman, Oleksyk) Apraxia affects spontaneous and creative speech more than automatic speech. (Oleksyk)
4. If severe, childhood apraxia may have a pervasive impact on a child’s educational progress, affecting not only speech production but also linguistic skills such as grammar, syntax and literacy. It may affect fine motor abilities, math skills, social interactions, behavior, and general cognitive development. (Oleksyk, Velleman)
5. Apraxia may have a more severe and long-lasting impact on a child’s language development than some other language disorders. (Velleman) Apraxia of childhood is relatively uncommon, affecting approximately one to two children per thousand, and three to four per cent of children with speech disorders. (Velleman)
6. Dysarthria is a type of muscle weakness. Student has dysarthria associated with speech-producing muscles, which interferes with his ability to produce certain sounds. (Oleksyk)
7. Student has significant fine motor and sensory processing difficulties that are believed to be related to his apraxia and dysarthria. (P-89, S-131, Beaudin). He also has had much difficulty with attention and concentration, although this has improved over the years. As of the date of hearing, he is distractible, but with help can maintain his focus on a task for at least thirty minutes in a one-on-one setting.
8. Student’s baseline cognitive abilities are the subject of debate and have been difficult to assess because of his communication disorders and difficulty with attention. He shows persistent delays in various cognitive skills and adaptive functioning, and some evaluators have suggested that at least at the time of their evaluations he met the criteria for mental retardation. On the other hand, other evaluators indicate that he should be considered as a child with average potential, whose neurological and communication deficits impede his access to his underlying abilities. (Chaskelson, Velleman)
9. There is no dispute that Student has made developmental and educational progress over the years, although the parties disagree on whether that progress has been “effective.” and whether and to what extent Sutton’s or the Parents’ services have contributed to it.
History of evaluations and services
10. Student received Early Intervention (EI) services from the ages of approximately four months until he transitioned into the Sutton Public Schools at age 3, to address delays in the areas of gross and fine motor skills, cognition, and receptive and expressive communication. EI services consisted primarily of physical therapy, speech-language therapy, a parent-child group and a toddler group. (S-1 – 6)
11. Student made steady progress during the time he was enrolled in EI. However, he continued to have significant developmental delays as he approached his third birthday. (S-6) At age 29 months, EI rated Student’s developmental levels as follows: perceptual fine motor: 12 months (“generalized hypotonia and decreased upper body strength”); gross motor: 15 months; cognition: 13 months; communication: 15 months receptive language, 8 months expressive language. Social and emotional development was an area of strength, with no problems or delays identified. (S-6)
12. In late March 1999, when Student was approximately 31 months old, the EI providers referred him to the Sutton Public Schools for a special education evaluation.
13. At about the same time, Parents had Student evaluated at the Boston Children’s Hospital Developmental Consult Program by Leonard Rappaport, M.D. This evaluator also found significant developmental delays, particular in the areas of cognitive, communication and play skills, and recommended, among other things, a “small structured, language-based preschool special education setting that is specifically designed…for children with significant cognitive, motor, and language delays,” as well as speech, behavior, and “motor therapies.” (S-8)
14. Dr. Rappaport’s report was forwarded to Sutton in August 1999.
15. In September 1999, Student began a diagnostic placement in the Early Learning Center, an integrated preschool program operated by Sutton. In November 1999, at the end of the diagnostic period, Sutton recommended continued attendance in preschool to address developmental delays and issued an IEP to this effect. (S-14, 15) At this time, when Student was about 3 years, 3 months old, his cognitive skills were assessed at the 12 to 18 month range. He could follow some simple one-part directions, and was beginning to imitate some sounds, but was non-verbal, and had difficulty physically producing sounds that he wanted to make. He could respond to his name, look at his classmates when their names were called, imitate some actions in songs and games, use ordinary objects appropriately. Student had difficulty pointing to body parts, picking out an object from a group, and matching or sorting objects. His fine motor skills were at the 1 to 1.5 year level. Gross motor, social, and self-help skills were also delayed. (S-13, 14)
16. According to Sutton’s progress reports for the 1999-2000 school year, Student made steady progress in all areas, including identifying body parts, matching and sorting, imitation, reciprocal play, fine and gross motor skills, and self-care. He increased the sounds he could imitate, but still did not speak. Sutton developed a “conversation book” using pictures to help facilitate Student’s communication, and Student began learning how to point to the pictures. (S-14, 15) Student met most of his IEP goals by the end of the school year. However, Student remained essentially non-verbal, and the record does not reflect what augmentative or alternative communication methods (such as signing, assistive technology, PECS, etc.) were explored or implemented during that year. (S-14, 15)
17. During the summer of 2000, Student attended a six-week program at the Mercy Center in Worcester, where he received intensive, daily individual speech/language therapy, as well as exposure to sign language, sensory integration therapy, augmentative communication, OT and PT services. According to Parents and Student’s pediatrician, Student made significant progress in expressive language, saying “mama” for the first time (at age 4). (P-1, 2)
18. Based on Student’s success at the Mercy Center, Parents sought to increase and intensify various aspects of Student’s program in Sutton, particularly in the area of language and communication. Between August and November 2000, Parents obtained several evaluations and letters in support of increased services as follows:
· a letter dated August 18, 2000 from Student’s neurologist, Gregory L. Holmes, M.D. stating that he felt it “essential that [Student] be placed in an educational program…that provides a very intensive language training both with sign language and oral language. He should be in a small classroom with a teacher skilled in language-based disorders. It is very important that he have a full day of intensive therapy. [Student] has considerable potential…his lack of expressive language and inability to communicate is severely limiting his potential.” (S-17)
· a private speech/language evaluation that revealed Student’s auditory comprehension to be at the 2-year level (at age 3.11), expressive language at the 1 year 4 month level, and total language score at the 1 year 8 month level, and recommending that Student “continue with a preschool program similar to the summer one he is currently attending,” [Mercy Center] with small class size, a total communication approach using simultaneous speech and sign, and an augmentative system to help Student develop expressive skills and communicate while working on speech skills. (S-18)
· a note from David Urion, M.D., a neurologist from the Boston Children’s Hospital who had evaluated Student previously, stating: [Student] was in an aggressive, total communication program over the course of the summer, which was associated with significant benefit for him. [Student] has returned to his regular school program since that time, and he has experienced some regression with respect to language skills. He has lost several of the signs which he had learned, his length of utterance has actually diminished, and he also has fewer words available than he did over the…summer…[He needs] a more aggressive language placement than he has…[which] should include elements of American sign language, technology based augmentative communication, talking books, and significant, daily, intensive speech and language therapy….” (P-3)
19. The record does not contain a copy of Sutton’s IEP for 2000-2001. Other documents in the record indicate, however, that Student continued in Sutton’s integrated preschool program, but that additional evaluations were conducted and services added during that school year. For example, speech therapy was increased from two individual, 30-minute sessions weekly to three individual and two small group sessions per week. Sensory integration techniques were incorporated into his OT sessions, and Student was provided with a 1:1 aide. Finally, Sutton began to formally incorporate sign language and PECS into Student’s communication system. (S-21—S-25, S-30).
20. During 2000-2001, Student made slow but measurable progress in all areas: fine and gross motor skills, play and social skills, academics, and communication. As of the final quarter of the academic year (June 2001), Student had met his IEP goals for social, fine motor, gross motor, and self-care skills. He had improved his ability to manipulate learning materials appropriately. He could follow a daily picture schedule. He was initiating play interactions with peers and joining peers to play. It appears that he only partially met his pre-academic goals, but that progress was difficult to assess.
21. Regarding communication, by June 2001, Student was described both as a visual communicator and as a true “total communicator,” who rarely used his voice alone, but got his message across primarily with signs, gestures, and PECS, accompanied by his voice. Student was also “beginning to use speech1 in a more timely appropriate manner for learned tasks” in that he could respond to a question about a familiar task and respond with a word paired with a sign. Student could produce 10 consonant sounds in isolation and some word approximations. He was increasing the spontaneous use of his voice. His word approximations were more intelligible in context than when doing table-top tasks in speech therapy. Receptively, Student was able to follow most two to three step directions in speech sessions (with familiar vocabulary), and respond to “wh” questions (with signs, PECS, gestures, pointing, word approximations, etc.) Both his receptive and sign vocabularies had increased, but motor difficulties were interfering with his sign production, and so Sutton staff worked to increase the use of PECS. (S-28)
22. At the start of the 2001-2002 school year, Student continued in the Sutton Early Learning Center. He attended 6.5 hours per day, 5 days per week. There were 14 children in his class, 1 teacher, and 1 paraprofessional, and Student had a 1:1 aide. On a weekly basis, Student was receiving 3 individual and 2 group speech/language sessions, 2 sessions of OT and one session of PT. He also was receiving 1 or 2 hours per week of outside speech therapy at Worcester State College, funded by Parents. (S-34)
23. In November and December, 2001, Lori A Buxton of the Speech, Language, & Learning Center in Spencer, MA conducted an augmentative communication evaluation to assess whether Student was a good candidate for an augmentative communication system. Previous evaluators had suggested such an evaluation, (S-29, 30, 35).
24. Ms. Buxton found Student could produce about 12 word approximations consistently, used about 25 signs expressively, could nod or shake his head to indicate yes or no, effectively use facial expressions to show emotions, and use a PECS system to label and make choices. He could not yet use PECS to request, gain attention, to express feelings or interests, or comment on unseen items. She found that while signing was helpful as a bridge to other types of communication and for receptive language, it was not viable as a primary means of expressive communication because many signs were modified or mildly distorted. Rather, signs should be combined with word approximations or speech. (S-35)
25. Ms. Buxton concluded that Student was an “excellent candidate” for a sophisticated augmentative communication device such as the DynaMyte 3100. This device has screens that can be touched to access various messages, symbols, etc., and voice output. The purpose of the device would be to enhance Student’s independence by increasing his ability to communicate his needs. Ms. Buxton made numerous additional recommendations for increasing Student’s language services before he received the device, so that he would have a better understanding of various linguistic concepts as they relate to picture symbols, as well as for helping Student use the PEC system more effectively.
26. In January 2002, after considering Ms. Buxton’s evaluation, Sutton issued an IEP amendment that included a trial of the DynaMyte 3100 in March 2002, and retention of Ms. Buxton as a consultant until April 2002 to help prepare Student and staff for using the device. (S-37) In fact, Sutton continued to retain Ms. Buxton through August of 2002 and beyond.
27. The parties do not dispute that Student made progress on all IEP goals during the remainder of the 2001-2002 school year. Progress reports referred to the voice output device, indicating that at least at school, Student was not able to use it successfully for some tasks. (S-40—43).
28. Sutton issued another IEP amendment in or about May 2002, covering the period from May to November 2002. (P-14) It appears from correspondence in the record that Parents partially rejected this amendment over issues such as the amount of time allotted for PT, OT and speech services. Among other things, Parents asked Sutton to provide speech therapy focused on apraxia and speech production as well as on functional language. They further requested additional accommodations and services such as instruction by a certified ASL teacher, staff instruction in sign language, retention of Ms. Buxton as a consultant, and certain compensatory services. (P-14) The parties apparently reached agreement on some of these issues.
29. During the summer of 2002, Student received speech, OT, and PT services as well as parentally-funded speech-language therapy at Worcester State College. (S-44, 45)
30. Student entered full-day kindergarten in August 2002. Mornings were spent with specialized services in a distraction free-environment: academics from his 1:1 aide, OT, PT, and speech/language therapy. Accompanied by his aide, he joined the regular education class for lunch, recess, rest time, and center times. (S-50, 54). Student used augmentative or assistive techniques to communicate in school, including sign, a picture schedule board, and a picture communication book.
31. Over time, as a result of meetings among providers and Parents, staff began gathering data to assess Student’s progress towards achieving IEP benchmarks and goals. (Valk)
32. Beginning in Kindergarten, pursuant to the parties’ discussions referred to above, Student began to receive two types of individual speech/language services: therapy specifically focusing on verbal apraxia and dysarthria with Ms. Jane Oleksyk, and therapy focusing on overall communication skills with Elaine Valk. He received five, thirty-minute sessions per week of each type of therapy for a total of 5 hours per week of individual speech/language services. (S-54)
33. Ms. Oleksyk is a certified speech/language pathologist who has worked in that capacity in Sutton since 1978. Ms. Oleksyk has participated in professional development workshops in childhood apraxia of speech in 1999 and 2005, as well as in autistic spectrum disorders.2 (Oleksyk, S-119) Ms. Valk, also a certified speech/language pathologist, has worked in Sutton since 1999. (Valk) Both Ms. Oleksyk and Ms. Valk served continuously as Student’s speech/language therapists until he left Sutton in 2005.
34. During the fall and winter of the 2002-03 school year, Sutton conducted a 3-year re-evaluation of Student consisting of neuropsychological, physical therapy, OT, speech-language and PT assessments. (The 2001-2002 IEP, including Ms. Buxton’s consultation services, was extended until January 2003).
35. Sutton had retained an outside consultant, Miriam E. Sexton, Ph.D., to conduct the neuropsychological evaluation, which consisted of observation, formal testing, and parent rating scales. At the time of testing Student, then aged 6 years, one month, showed developmental skills ranging from the 2 year, 3 month level, to the 3 year, four month level, with receptive language skills somewhat higher, indicating global developmental delays in addition to his language impairments. Student clearly did not have PDD or any other autism spectrum disorder.3 (S-48)
36. Dr. Sexton made no recommendations for additional or different educational services for Student, “as his current services are so comprehensive,” and “[Student’s] IEP is among the most comprehensive that [she had] ever seen…” (S-48)
37. The educational assessment, conducted between December 2002 and January 2003, revealed that Student’s attention had improved significantly since September 2002. He could now sustain his attention for 20 to 30 minutes, with an occasional break. As a result, he was making academic progress. For example, he had met objectives with matching and sorting various objects and pictures, and was beginning to develop skills in categorization. He had shown “excellent growth” in communication. Student was learning to pair signs, gestures, and words with pictures. He had learned to consistently identify (at least 4 of 5 trials) about 9 school objects, 6 capital letters, 3 sight words, one color, and one shape. He knew approximately 80 signs and used them across settings, mostly with models and assistance to connect them with concepts. Socially, Student appeared comfortable with his peers in the classroom, imitated play activities, played more appropriately with toys, and initiated contact with peers at recess. He still needed assistance with fine motor and self-help tasks. (S-50)
38. The OT evaluation, conducted by Cynthia Beaudin, showed “very good improvement” in Student’s fine motor, self-help, and visual perceptual motor skills, but ongoing significant delays in these areas. (He was now functioning in the 25-33 month age level on visual perceptual motor skills and 30 to 34 months on self-help skills, and was not toilet trained.) He also had persistent low muscle tone. The evaluation recommended continued individual OT sessions, as well as home activities to continue skill development.
39. Ms. Oleksyk conducted the speech language assessment over several sessions in December 2002 and January 2003. In general, the evaluation revealed severly impaired speech and language skills in all areas of language development, consistent with Student’s diagnoses of verbal apraxia and dysarthria, and an overall language age equivalency of approximately 2.0 to 3.6 years. (S-54) The components of the evaluation (formal and informal assessment, observation, and interviews with Parents, teacher, aide, and specialists) are summarized as follows (S-54)
· Sensory: Easily distracted by extraneous auditory or visual stimuli.
· Attention: Ranged from 10 to 20 minutes for tasks; could be brought back on task with breaks, stickers, mild prompting, encouragement, etc.
· Receptive language-informal assessment: Comprehension was literal, concrete and simple with limited ability to conceptualize. Understood basic information about daily events or family; lacked wide knowledge of other topics. Able to follow one step directions, but not two step directions. Comprehended several body parts, primary colors and shapes, happy and sad faces, many nouns and verbs but not adjectives; answered simple yes-no questions and some “wh” questions. Understood concepts of “in,” “out,” and “on.” He comprehended about 80 signs.
· Receptive language—formal assessment: PPVT-III—age equivalent 5 yrs. 10 months. Test for Auditory Comprehension of Language-Revised (TACL-R)—Age equivalent of 3.0 to 3.7 years for understanding certain language relationships. Preschool Language Scale-3: Auditory comprehension—age equivalent of 1.9 years (did not master one-year concepts but did comprehend some items in 2 year range)
.
· Expressive language: Non-symbolic (eye gaze, facial expression, pointing, etc.); symbolic: (speech, sign, picture schedules and picture communication book.) Mean length of utterance—one word. Longest utterance: 2 words. Approximately 40 words heard in school, used approximately 60 signs spontaneously, emerging ability to combine signs. Preschool language scale: 2.1 age equivalent.
· Low oral muscle tone, but improvement shown, able to produce 9 consonants in isolation, and several vowel sounds.
· Observation during play—appropriately played with some toys, threw others in the air and laughed; imitated more appropriate use of toys, enjoyed playing blocks with peers, initiating tag game to have peers chase him.
40. Ms. Oleksyk recommended continuation of his then-current speech/language services, as well a total communication approach in all settings, increased play activities with peers, use of various augmentative communication tools (picture boards, voice output device, all paired with printed words when possible) to enhance communications, and various other strategies. (S-54)
41. On or about February 26, 2003, Sutton issued an IEP covering the period from January 24, 2003 to January 24, 2004. The proposed IEP called for continued placement of half days in a regular classroom with support, and half days receiving 1:1 services (academics, OT, PT, speech/language therapy, and apraxia therapy) in a substantially separate setting. The IEP also called for numerous accommodations, modified curriculum, access to staff familiar with sign language, a total communication approach across settings, and systematic gathering of data to measure progress toward achievement of IEP objectives. Parents accepted this IEP on February 25, 2003. (S-53) Student continued to receive services from Sutton, as well as supplemental, weekly speech-language therapy from Worcester State College funded by Parents.
42. By agreement, Parents and Student’s providers met on a monthly basis during the period covered by the IEP to review the data reflecting Student’s progress. (S-57, Esposito)
43. Throughout 2002-2003, the School and Parents corresponded and met to discuss various aspects of Student’s program. (P-15, 17)
44. Student continued to make slow, steady progress towards meeting his IEP benchmarks during the remainder of the 2002-03 school year. For example, by June 2003, in the area of communication, Student had slowly improved his receptive vocabulary, his ability to answer yes/know and “wh” questions” and to follow simple 2-step directions. (Student used pointing, pictures, signs and actions to demonstrate his understanding). Expressively, in the therapy setting, Student was increasingly able to use simple 2-word (i.e., voiced word or word approximation and paired with a sign) combinations, and was beginning to use three-word combination with a model. (S-58). As for fine motor skills, Student was improving his ability to hold and use a marker, copy lines, cut with scissors, and similar fine motor tasks. Academically, he had improved his ability to identify numbers 1 through 5, count objects (with hand-over-hand prompting) and identify the corresponding numeral for the numbers 1 through 4, and identify a circle, square, triangle and rectangle. He was increasingly able to identify the letters in his name. Student was beginning to identify about eight sight words, pairing the word card with an object or picture with decreasing verbal or signed prompts from the teacher.
45. During the summer of 2003, Student received 108 hours (3 hours/day, 4 days/week for 9 weeks) of parentally-funded individual speech/language therapy from Amy C. Kulcsar, a certified speech/language therapist. Ms. Kulscar worked with Student on a variety of speech, language, and pre-literacy skills that appeared similar to those he had addressed in school. Ms. Kulcsar also assisted him with his DynaMyte 3100, the voice-output assistive communication device referred to above, that Student received at the beginning of the summer. Ms. Kulscar found that Student made some progress over the summer, and recommended continued speech/language services. (P-19)
46. Student continued in a Kindergarten placement for the 2003-2004 academic year. His class was co-taught by a special education teacher, Ms. Gina DeCaro, and a regular education teacher. Student continued to have the same configuration of services as during the prior year, except that Student received some of his academics in a small group within the classroom from Ms. DeCaro and his aide rather than outside of the classroom. Additionally, Sutton and the Parents were now working with Student to learn how to use his DynaMyte device to assist his communication. Ms. Buxton was continuing to provide consultation services regarding the DynaMyte. (DeCaro, P-30) The parties attempted to continue the monthly meetings to refine Student’s program that they had started during the prior academic year, although there were some scheduling difficulties. (P-26—P-29)
47. In January 2004, the TEAM convened for an annual review meeting to create an IEP for the remainder of the 2003-2004 school year and the start of the 2004-2005 school year. The TEAM considered data gathered during the prior quarters but did not conduct new evaluations. (S-70, Esposito) The resulting IEP reflected that Student was an active, happy, fun-loving, polite, and well-liked member of his kindergarten class who was always willing and eager to try an activity or assignment. Student was also still impulsive and distractible, needing assistance to perform activities and maintain focus, although he had progressed in this area. He needed much practice and repetition to learn skills, and his retention and performance could be inconsistent. He followed routines and one-step directions fairly consistently. Other children helped him participate in play situations.
48. The IEP indicates that Student presented as a visual learner who could follow classroom routines, imitate visual models, and follow instructions with visual support. Student communicated with a combination of signs, pointing, gesturing, and some words or approximations. He was able to express many emotions via total communication. According to the IEP, Student was able to identify all 26 capital letters if presented in certain ways and 24 lower case letters, could make or approximate the sounds of many letters, say most long vowel sounds, approximate many consonant sounds, could identify a few sight words, count by rote to 5 with prompts, identify a few other numbers and shapes. Students skills were somewhat inconsistent, and he required varying degrees of prompting or visual cues. (S-67)
49. The IEP issued in February 2004 called for a partial inclusion program with essentially the same services as provided in previous IEPs, i.e., a combination of academic support, speech/language, fine and gross motor services in the general classroom as well as pull out speech/language therapy, specific apraxia therapy, and occupational and physical therapy. Curriculum was to be modified. Listed accommodations included a multisensory approach, access to a distraction-free setting, 1:1 support to incorporate accommodations and modifications, various visual and auditory accommodations, and “an assistant who is familiar with AAC communication” and “willing to learn programming the device. (S-67)
50. Under “Methodology/Delivery of Instruction” the IEP provided for visual support for verbal instruction including visual aids, sign language, and picture symbols, access to staff familiar with use of sign language and a total communication approach across all settings. “Performance criteria” called for flow/data sheets reflecting IEP goals and objectives.
51. The IEP provided for a summer program and contemplated transition to first grade in the fall of 2004. (S-67)
52. From the start of the 2003-2004 academic year, Parents had been funding after school speech therapy services for Student from Amy Kulscar, who had also provided services since June 2002. In November 2003 and again on February 1, 2004, Parents requested Sutton to fund this additional speech therapy, relying on written endorsements of same from Student’s neurologist and Ms. Kulscar. (S-69)
53. Sutton denied Parents’ request in November 2003 (S-62), and did not include such services in the IEP of February 2004. (S-67)
54. Parents partially rejected the February 2004 IEP based on this denial (although they accepted the placement), and also requested an independent evaluation. (S-67) Ultimately, the parties reached an agreement addressing Student’s summer program for summer 2004, providing for Sutton’s payment for summer services from Ms. Kulscar, an independent speech/language evaluation, and a reconvening of the TEAM upon completion of the evaluation. (Esposito, S-75)
55. During the summer of 2004, Parents enrolled Student in the Lindamood-Bell Learning Center in Arlington, MA. Lindamood-Bell is a private vendor of language and literacy-related services. Lindamood-Bell’s founders have created several different programs and methodologies designed to help people with language-based learning disabilities acquire some of the cognitive-sensory building blocks of reading, such as phonemic awareness, symbol imagery, and concept imagery. (Reynolds)4 Lindamood-Bell centers provide intensive, one-to-one tutorial services that assess and target individual needs in these categories. Typically, students attend the Lindamood-Bell center for four hours per day, five day per week. Lindamood-Bell instructors need not hold degrees or certifications in any discipline such as education or speech/language pathology. A bachelors’ degree is preferred but not required. Instructors (called “clinicians”) receive in-house training, both initially and on an ongoing basis, along with supervision. On the other hand, the original authors of the Lindamood-Bell teaching programs are or were speech/language therapists. The Lindamood-Bell Centers are not schools per se , but sites for intensive instruction in various aspects of the pre-reading reading and writing process. Lindamood-Bell instruction and instructional materials do not and are not intended to teach curriculum content, but rather to teach skills to enable students to eventually have access to curriculum. (Reynolds)
56. The various Lindamood-Bell programs are highly-structured and sequential. Students are supposed to master one portion of the program, as measured by data, before they move on to the next. (Reynolds)
57. Student’s summer 2004 Lindamood-Bell program consisted of a 200 hour “exploratory treatment period” with the LiPS/Seeing Stars and Visualizing/Verbalizing programs. (P-41, Reynolds)5 Student did not complete the LiPS program, but did begin to learn to identify the number and order of sounds up to the three sound level. He started to spell and decode using tiles. (p-41) Student was more successful with the V/V program.
58. Because Student’s apraxia interfered with his ability to fully utilize LiPs/Seeing Stars and V/v, Lindamood-Bell staff began to have him work with “Talkies,” a newly-developed program for children with more severely compromised language. Student made some very slow progress during the summer. (Reynolds)
59. Student entered first grade in Sutton in August or September 2004. He spent increased time in the regular first grade class with continued pull out and pull-aside services, because he had appeared to enjoy and benefit from being with other students. For example, Student seemed motivated by other students, and watched them for indications of how to behave (e.g., raising his hand). (DeCaro). He continued to be served by Ms. Oleksyk and Ms. Valk for speech/language therapy, and Ms. Beaudin for OT. Ms. DeCaro worked with Student’s paraprofessional, classroom teacher, and speech therapists to modify curriculum or methodologies. For example, Ms. DeCaro and Ms. Oleksyk developed story boards using stories the class was reading and Student’s then-current vocabulary to enable him to participate. Student was not involved in any one reading program, but in the same pre-reading activities as the other students in his class, with modifications. (DeCaro)
60. In addition to his IEP services, Student continued to receive private, after-school speech/language therapy from Amy Kulcsar.
61. In August and October, 2004, pursuant to the agreement referred to above and subsequent discussions by the parties, Sutton retained an outside speech/language therapist, Dr. Theresa Dooley-Smith to conduct an independent speech/language evaluation and program assessment. (Esposito, S-98) Because formal testing had been completed recently, Dr. Dooley -Smith conducted a more general, qualitative assessment of Student’s then-current needs and services. The evaluation process consisted of observations of Student within multiple settings (evaluator’s office, classroom, speech/language and OT sessions, home), parent and provider interviews, review of school, evaluation, and alternative service records, and completion of parent/provider social pragmatic scale. In summary, Dr. Dooley-Smith reached the following conclusions:
· In general, Student could function in the general classroom, but might need more visual and language supports to reduce his dependence on adults.
· Staff should begin ongoing data collection to get an accurate picture of Student’s cognitive levels as these go hand-in-hand with linguistic skills, reach agreement on current cognitive levels (which are not necessarily static), for the purpose of assigning an appropriate difficulty level to his schoolwork;
· Staff should consider some discrete trial teaching to generate data on specific cognitive strengths and weaknesses.
· Data should be gathered on Student’s reaction to early reading activities;
· Student’s paraprofessional was doing excellent work and should be provided additional support and training regarding use of augmentative
devices, social integration, and the like;
· Student’s most successful mode of communication was sign language. He struggled with the DynaMyte, which was not particularly accessible to him or to listeners;
· The team should continue its focus on total communication; there were many specific recommendations regarding vocabulary building, voice quality, use of visual supports, modification of signing instruction;
· The TEAM should investigate other, simpler augmentative communication devices and/or strategies than the DynaMyte;
· Student would benefit from more explicit support and instruction for spontaneous interaction with peers and expressing emotions, as he enjoyed being with them but did not converse or interact easily without adult intervention;
· The school should consider a sequential, data driven “Multisensory Structured Language Program” such as Lindamood-Bell for speech sound and reading acquisition;
· The current focus on speech acquisition should be expanded to a focus on “social access and integration of augmentative and assistive technology supports and not speech per se.”
· Consistent with the above, the TEAM should increase Student’s opportunities for meaningful peer interactions through participation in small groups for instruction, lunch, and socialization. Under Student’s then-current plan, he was either in a 1:1 setting with an adult, or in a large group where he required much adult help to participate, all of which reduced his opportunities for natural peer interaction, and made him overly dependent on adult cues and overly focused on what he needed to do.
62. After receiving Dooley-Smith’s report,6 Sutton convened three TEAM meetings, on January 4, 24, and February 10, 2005. (S-130) At the initial meeting, held some time in November 2004, the parties had discussed the potential advantages of having Student attend an existing language-based classroom within Sutton. (Esposito) These included a language-based approach entailing much repetition and review, systematic, structured teaching of language throughout the day, and a small group setting, all of which would benefit Student. (De Caro) Subsequently, Dr. Dooley-Smith observed the proposed program and reported that she found it appropriate. At further TEAM meetings, the parties worked to define and enhance the proposed placement. (Esposito)
63. Following these meetings, on February 10, 2005, Sutton issued the IEP that is the subject of this hearing.
64. This IEP reported Student’s current performance levels and formulated goals, as follows: (S-103)
· Communication: Student had made recent gains in verbalizing, used one-word phrases consistently, some 2-4 word phrases with cues; continued to use sign and his Dynamyte; followed one step directions, struggled with two-step directions, improved ability to answer “wh” questions, increased his mean length of utterance to 3-4 words, increased spontaneous verbalization in therapy but could not interact independently with peers. Annual Goal: become more independent in ability to interact, i.e., build vocabulary, improve listening skills, participate in discussions, increase verbalization, interact with peers.
· Apraxia: Student could imitate all long and short vowels in isolation, some CV and VC combinations, 14 consonants plus “ch,” had a repertoire of 117 words of which he used 27 regularly in spontaneous speech, had emerging use of two-word phrases, some three or four word phrases with prompting. Annual Goal: improve automaticity, fluidity and flexibility of verbal communication; develop phonological awareness, vocabulary/concepts, increase length of utterance, social pragmatics, prosody, intensity of speech.
· Fine motor: Could grasp marker for several minutes, was progressing with toileting but needed help and could still not indicate the need for the toilet; still needed help with buttoning and snapping clothing, could copy circle, vertical, horizontal lines with verbal cues; could add facial features to circle with models and verbal cues; cutting was progressing; could trace letters and numbers with help. Annual goal: improve sensory processing and aspects of motor control.
· English Language Arts: Consistently able to identify the letter in his name in multiple but not all contexts; could identify 26 capital letters by pointing; could name, sign, or give sound for 26 capital letters; maintained ability to identify colors, some increased accuracy; could say, sign or approximate 7 high frequency sight words upon seeing card; can point to others in array of 2 to 4 with prompting; inconsistent comprehension and attention; can participate in class when asked “yes/no” questions; less distracted by other students. /annual goal: Use total communication to increase receptive identification and vocalization, and develop pre-reading skills.
· Mathematics: can identify numbers 0 – 15 inconsistently. Some understanding of double digit numbers, rote count by ones to 15, with hand over hand to point to each number, some shape identification. Annual goal: same as for English Language Arts.
· Social/emotional: Reliant on aide during social situations; can answer simple yes/no questions but not always correctly; communicates wants or needs via total communication; parallel plays with peers but does not engage; can choose activities but relies heavily on adults; joins activities initiated by others; uses DynaMyte more independently for conversation and academics; can follow verbal directions in class; distractible in most settings but this is not a major hinderance. Annual goal: increase social skills and independence with peers and in choice making, become less adult-dependent.
· Gross motor: Has made significant progress with strength and skills. Annual goal: improve consistency and control with activities such as throwing, catching kicking, running, etc, (S-130)
65. The service delivery grid in the February, 2005 IEP called for several hours per cycle of consultation (the IEP was unclear as to the type or personnel); 1×30 minutes per week of PT in a general classroom (presumably during gym class), and 10 x 45 minutes per week of “social” in the general classroom. (apparently circle time, homeroom, etc. (Esposito)). On the C grid were listed the services to be provided in the language based classroom and/or therapy rooms: speech/language: 1×30 and 3×30; speech/apraxia: 4 x 30 and 3 x 30; OT: 2 x 30, 1 x 30; language arts: 5 x 90, math: 5 x 75, and PT: 1 x 30. (S-130)
66. The “Language Based Resource Program,” (hereafter, “LB Program”) was designed for students “who benefit from a smaller group, high language support, integrated therapy consultation, and curriculum modified and aligned to the Curriculum Frameworks.” Instruction was “aligned with learning standards and grade level curriculum” and delivered in small groups of up to 6:1 or in 1:1 sessions with a certified special education teacher or instructional aide. (S-126) The teacher’s specialization was in reading development, phonetic development, “literacy associations,” reading fluency and comprehension, and development of math and writing skills. The program included ongoing collaboration with classroom teachers, consultation with speech and occupational therapists, and small group work integrated throughout the day. (S-126)
67. The LB Program used a variety of instructional programs including Open Court for reading, writing and comprehension; Wilson Reading, Project Read/Framing Your Thoughts for phonetic and writing skills, Soar to Success (a literature based reading program), and Everyday Math. (S-126) Other types of pre-reading and reading programs could be implemented if needed. (Esposito)
68. Student’s proposed class would consist of 6 to 8 students, taught by one certified special education teacher and an instructional aide. (Esposito)
69. The other students with whom Student would likely be placed were diagnosed with varying combinations of developmental delays, language-based learning disabilities and neurological disabilities. Most appeared to be functioning on a higher level than Student with respect to language and academics, but all needed varying amount of interventions and service in this area (Esposito; DeCaro; P-126—P-130)
70. The proposed IEP was not implemented. Rather, on or about March 1, 2005, Parents withdrew Student from the Sutton Public Schools, and unilaterally placed Student first in in the Lindamood-Bell program in Arlington. Later, as will be discussed below, Parents added additional programs.
71. Meanwhile, later in March 2005, after Student had been withdrawn, Sutton received an outside neuropsychological evaluation conducted by Amy Morgan, Ph.D. from Massachusetts General Hospital. (S-105) Dr. Morgan reviewed records and administered a variety of standardized instruments. In sum, Dr. Morgan concluded that Student presented with a moderate developmental delay, functioning cognitively at the 2 to 3 year old level, together with a significant language impairment and attentional difficulties. Student had very important strengths, including an outgoing, happy personality, relative strengths in non-verbal reasoning, and committed parents. Dr. Morgan opined Student needed to develop alternative neural pathways to compensate for those affected by his prior seizure disorder via a carefully structured educational program. She recommended a small, highly structured classroom setting with a 1:1 aide, daily tutorials, and structured inclusion activities. (S-105)
72. Dr. Morgan recommended that the tutorials be “highly systematic, multi-sensory, sequential, individual” tutorials using applied behavioral analysis in order to teach and maintain skills. (S-106)
73. Dr. Morgan further recommended speech/language, OT and PT or adaptive physical education. (S-106)
74. Dr. Morgan conducted a follow-up evaluation in June 2005, after Student had been out of school and enrolled in Lindamood-Bell for about three months. Dr. Morgan observed that Student was noticeably better able to focus and maintain attention to tasks. She also mentioned a “lack of measurable progress over the past 3 years, since Student’s neuropsychological evaluation of 2002,” but did not state the basis for concluding that there had been no progress or the areas where there was no progress. (S-106)
75. The school members of the TEAM considered Dr. Morgan’s report during the spring of 2005 and issued a second IEP in June (S-131); however, that IEP is essentially the same as the one issued in March 2005, as Sutton did not believe any changes were warranted as a result of Dr. Morgan’s report. (Esposito)
76. A subsequent TEAM meeting was held in or around May 2006, after the evaluations of Drs. Velleman and Chaskelson, discussed below, but no changes to the IEP were proposed. (Esposito)
77. Student has not returned to Sutton since his removal in March 2005. (Esposito)
Parents’ proposed program and unilateral placement
78. As stated above, Parents first enrolled Student in the Lindamood-Bell program during the summer of 2004. Upon withdrawing Student from Sutton, Parents re-enrolled Student in Lindamood-Bell, to receive instruction for approximately 4 hours per day, 5 days per week. (Reynolds) This level of service continued from that point until the dates of hearing. In March 2005, when he first returned to Lindamood Bell, Student’s day was split evenly between LiPS and Visualizing/Verbalizing (subsequently replaced by Talkies). At some point another program, Seeing Stars, was added. Because of the severity of Student’s language disability, Student’s instructors initially consulted with regional and national Lindamood-Bell staff and also with the Lindamood-Bell founders. (Reynolds) Staff made modifications and adjustments to Student’s Lindamood-Bell instruction on an ongoing basis, to accommodate his needs. (Reynolds)
79. Student received 1:1 instruction from Lindamood-Bell clinicians. He was able to socialize with other students during break times. Reynolds)
80. According to L-B staff, between March 2005 and January 2006, Student made progress in terms of his ability to answer questions and spontaneously vocalize, as well as to understand sound-symbol correspondence and decode. On the other hand, the rate of progress was very slow, no standardized testing was conducted, and data to measure progress was largely qualitiative. (Reynolds)
81. In June 2005, Parents retained a speech-language therapist, Jasmine Urquhart to provide services to Student for two, and then three hours per week. Ms. Urquhart is a licensed, master’s-level speech-language pathologist employed by a small private practice in Lexington. (Urquhart, P-155) In her practice, Ms. Urquhart works with chidren diagnosed with a variety of language disabilities, including apraxia or related disorders, autism, nonverbal learning disabilities, and other language difficulties. (Id.)
82. When Ms. Urquhart first began working with Student, he spoke primarily in single words, with occasional 2-word phrases. He did use signs. He did not provide much spontaneous speech. She worked with him on a variety of skills including making comments, asking questions, and using more spontaneous language. Between June 2005 and the time of hearing, Ms. Urquhart observed that Student increased the complexity of words he could say, up to 5 syllables. He became less distractible. He spontaneously used two word utterances more frequently. Generally, she noted progress in the areas of grammar, pragmatics, language concepts, comprehension and speech. (Urquhart)
83. Other individual services added by Parents during the summer of 2005 were occupational therapy with Kathy Carley and three sessions per week of individual academic tutoring with Jennifer Yovino, a certified special education teacher. Ms. Yovino has worked with Student on academics, modified to be accessible to Student, and incorporating elements of the Curriculum Frameworks. (Carley, Yovino) Student also attended a social/recreational program at the Beverly School for the Deaf.7 (P-175)
84. Between June and September 2005, Student received 20 hours of Lindamood-Bell, three hours of OT, and two hours of speech/language therapy per week. From September 2005 to February 2006, approximately 4.5 hours of tutoring and one hour of recreation at Beverly School for the Deaf (BSD) were added to that schedule. In February 2006, an hour per week of sign language instruction at BSD was added. This schedule remained approximately the same up to the time of hearing. (P-175)
85. All providers felt that Student made progress with the services they provided. (Carley, Urquhart, Yovino)
86. Most service coordination was done by Mother, who kept each provider apprised of what the other was doing. Additionally, Ms. Urquhart has observed Student at L-B and has also consulted with Ms. Yovino, and Ms. Yovino has consulted with L-B. (Urquhart, Yovino)
87. None of Student’s private providers (except, perhaps, Beverly School for the Deaf) used total communication or any of its elements (sign, augmentative communication, PECS) with Student on a systematic basis. (Urquhart, Carley, Reynolds)
88. Student underwent two formal evaluations between March 2005 and the hearing dates. The first was with Dr. Shelly Velleman, who evaluated Student in November 2005. Dr. Velleman has a master’s degree in communication disorders, a Ph.D. in linguistics and is a licensed and certified speech/language pathologist. Dr. Velleman is an associate professor at the University of Massachusetts and also conducts evaluations. Dr. Velleman focuses much of her research and teaching on phonology and phonological disorders including apraxia. (Velleman)
89. Dr. Velleman assessed various aspects of Student’s language production and concluded that Student had a good prognosis for developing oral speech. She recommended 1:1 training for Student, apart from other children, for all academic activities, because of his distractibility and need for highly focused instruction administered in tiny increments. She futher recommended daily speech-language therapy, structured socialization in a small group, and a literacy approach such as Lindamood-Bell. Dr. Velleman recommended oral speech as the primary mode of communication for Student. (Velleman, P-74)
90. The second evaluation was from Marsha Chaskelson, Ph.D., a neuropsychologist who evaluated Student over four sessions in December 2005 and January 2006. Dr. Chaskelson reviewed records of prior evaluations, consulted with Parents and his private providers, and conducted further standardized testing. She concluded that Student should be considered to have normal intellectual ability, as testing that indicated otherwise could not be consider valid because it was incomplete, non-standard, or did not properly correct for language deficits. (Chaskelson, P-81) She further concluded that Student appeared to be benefiting from his current therapies. She recommended that Student receive highly structured, 1:1 instruction because his nervous system is not sufficiently intact to tolerate the sensory input or demands of even a small, quiet classroom. She also opined that academics and socialization should be separate for Student for the next months or years, until he develops functional language; at that time he may be “ready” for introduction into a classroom. (Chaskelson, P-81)
91. None of Student’s private providers or evaluators had observed Student in Sutton, spoken or met with his providers from Sutton, or observed the proposed language-based classroom. (Reynolds, Urquhart, Carley, Yovino, Velleman, Chaskelson) Dr. Velleman reviewed the most recent IEP as well as redacted IEPs of proposed peers. She concluded that the proposed placement would be inappropriate because the pace of instruction would be too fast, and the peers generally functioned at a much higher level than Student. (Velleman)
92. In December 2005, Sutton arranged an observation of Student at Lindamood-Bell by Ellen Honeyman, an outside speech/language consultant whom Sutton had retained to advise Sutton on possible out of district placements. In January 2006, Dr, Esposito, Ms. Oleksyk, and Ms. DeCaro observed Student at Lindamood-Bell. Bell. All of the Sutton staff that the placement was inappropriate, basically because they saw Student as isolated, doing the same drills over and over that were unconnected to any particular content. None saw progress, and Ms. Oleksyk thought Student had regressed in some areas. (Esposito, Oleksyk, DeCaro) Sutton staff members have not observed Student’s academic tutoring, individual speech/language or OT sessions.
93. Ms. Honeyman was also concerned that Student was not in an actual school program at Lindamood-Bell such that the work he was doing was not connected to curriculum. (Honeyman)
94. At some point, Sutton decided to offer Parents an outside placement for Student, in addition to its in-house program, and proposed the choices of the Cotting School in Lexington, and a language-based program at the South Coast Collaborative. Ms. Honeyman visited both programs, and deemed both appropriate for Student because both were capable of meeting his needs and providing an appropriate peer group. She felt that Cotting was a better option because of the larger size of its assistive technology center. (Honeyman, S-113) Parents have not accepted these options, considering them inappropriate. (Esposito)
95. From the time of his removal to the hearing dates, Student has not returned to Sutton.
CONCLUSION AND ORDER
Based on a careful review of the evidence, I conclude that the IEP and placement proposed by Sutton in February 2005 was reasonably calculated to provide Student with a free, appropriate public education (FAPE) Because the proposed program offered FAPE, Sutton is not liable for payment for the services obtained by Parents from March 2005 forward. On the other hand, Sutton has not established that Parents’ program has deprived Student of FAPE, and I decline to make a ruling to that effect. My reasoning follows.
Legal Framework
The FAPE Standard
There is no dispute that Student is a school-aged child with a disability who is eligible for special education and related services pursuant to the IDEA, 20 USC Section 1400, et seq ., and the Massachusetts special education statute, G.L. c. 71B (“Chapter 766”). Therefore, Student is entitled to a free appropriate public education (FAPE) as defined in federal and state law.
The IDEA defines FAPE as special education and related services that (A) are provided at public expense and under public control; (B) meet the standards of the state educational agency; (C) include an appropriate preschool, elementary, or secondary school education; and (D) are provided in conformity with an properly developed IEP. 20 USC Sec. 1401; 34 CFR Sec. 300.13. The corresponding state statute defines FAPE as special education and related services that conform to the IDEA and its regulations and also “meet the education standards established by statute or…by regulations promulgated by the Board of Education.” G.L. c. 71B, Sec.1.
In general, FAPE encompasses substantive appropriateness, placement in the least restrictive environment (LRE) consistent with providing an appropriate program, and conformity with the IDEA’s procedural requirements.8 Substantively, Federal courts have interpreted FAPE to mean an IEP and services that provide “significant learning” and confer “meaningful benefit” on the student via “personalized instruction with sufficient support services to permit the child to benefit educationally.” Hendrick Hudson Bd. of Education v. Rowley , 458 U.S. 176, 188-9, 203 (1992); see also Burlington v. Mass. Dept. of Education , 736 F.2d 773, 788 (1 st Cir. 1984). The IEP must be tailored to the unique needs of the disabled child, and must be “reasonably calculated to provide ‘effective results’ and ‘demonstrable improvement’ in the educational and personal skills identified as special needs.” 34 C.F.R. 300.300(3)(ii); Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993), citing Roland M. v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990), cert. denied , 499 U.S. 912 (1991) and Burlington , 736 F.2d at 788. Some federal courts have held that “effective results” and “demonstrable improvement” should be measured in light of the student’s individual potential. See , e.g ., Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000). On the other hand, the IDEA does not require districts to maximize a student’s potential, but rather to assure access to a public education and the opportunity for meaningful educational benefit. Lenn , 998 F.3d at 1091; G.D. v. Westmoreland School District , 930 F.2d 942 (1 st Cir. 1991).
In Massachusetts, the Department of Education (DOE) has issued a memorandum analyzing the effect of the Commonwealth’s adoption of the federal FAPE standard. See Massachusetts DOE Administrative Advisory SPED 2002-1: Guidance on the change…from “maximum possible development” to “free appropriate public education” (“FAPE”), Effective January 1, 2002 (November 20, 2001) (“DOE Advisory” ) In this memorandum, DOE has commented that “court decisions make clear that FAPE is not a minimal or trivial standard.” Id . Moreover, according to DOE, one of the Legislature’s intentions in amending Chapter 766, in addition to adopting the federal FAPE standard, was to bring students with disabilities within the scope of the Massachusetts Education Reform Act, which “underscores the Commonwealth’s commitment to assist all students to reach their full educational potential. Improving educational outcomes for students with disabilities is a goal of the state and federal special education laws, and improving educational outcomes for all students, including students with disabilities, is central to education reform” Id .
Finally, under both federal and state law, FAPE requires schools to educate eligible students in the least restrictive environment (LRE) consistent with meeting their educational needs; that is, together with, rather than segregated from, children without disabilities. 20 U.S.C. 1412(5)(A); Roland M ., supra. The law requires that students should be placed in more restrictive environments, such as private day or residential schools, only when the nature or severity of the child’s disability is such that the child cannot receive FAPE in a less restrictive setting. Id.
Burden of Proof
In Shaeffer v. Weast , 126 S. Ct. 528, 44 IDELR 150 (2005), the U.S. Supreme Court held that the “burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief.” Id . Thus, a parent challenging a school district’s IEP must demonstrate, by a preponderance of the evidence, that the IEP is inappropriate, that is, fails to provide FAPE. If the evidence that the parties present is in equipoise, the school must prevail.
In the instant case, the School filed the hearing request, seeking a determination that its March and June 2005 IEPs were appropriate, and, additionally, that Parents’ program deprived Student of FAPE. Under the Shaeffe r analysis, the School does not bear the burden of persuasion on the first claim because even though it was the technical moving party, the first claim does not challenge the status quo (i.e., the proposed IEP) but only seeks to maintain it, such that the parties are in the same posture with respect to the IEP and each other as if the Parents had been the first party to file a due process complaint. Thus, it is the Parents’ burden to demonstrate that the proposed IEP was inappropriate, and, if so, that their chosen (or, in this case, created) program was appropriate.
On the other hand, the School has also alleged that the Parents have deprived the Student of FAPE. This claim is clearly the School’s burden to prove under Shaeffer . While the School is not asking for any relief regarding this claim other than the ruling itself, it is seeking a change in the legal status quo. Specifically, Sutton is asking the BSEA to determine that the Parents have actively deprived Student of his educational rights. As such, the School is responsible for proving this claim.
Appropriateness of the School’s Proposed Program .
The parties agree, and the record amply demonstrates, that Student has a severe and complex communication disability, combined with delays and challenges in the areas of fine and gross motor skills, sensory integration, attention, and cognitive functioning that affect virtually all areas of his life both within and outside of the school setting. The parties also agree that the complexity of Student’s disability profile requires a sophisticated, highly individualized program that addresses all of his needs, and which is can be modified as those needs change or are better understood.
While the parties may disagree on specific methodologies, strategies or settings, there is no dispute as to the basic elements of an appropriate program in March 2005, when Parents removed Student from Sutton. At that time, Student needed intensive services to develop expressive and receptive language and functional communication skills (including spoken language and other means of communication), specific speech/language therapy targeting his apraxia of speech, occupational therapy, physical therapy, intensive instruction in foundational academic skills, and services to develop his social skills and independence. There is no dispute that language instruction in particular needed to be structured and sequential, and that data gathering was important for assessing his progress in this regard.
Most of all, Student needed to be in a setting where he could communicate with adults and peers. At the time he left Sutton, Student was a “total communicator” who used a combination of spoken words, sign, pictures, and, on occasion, a voice output device for this purpose. Among the accommodations he needed was access to adults who could use and understand sign, as well as use a communication book, PECS, voice output devices and the like.
The parties dispute whether the IEP that Sutton offered in February 2005 (as amended in June 2005) offered Student FAPE. The School offered a program that it believed complied with Dr. Dooley-Smith’s recommendations and would provide Student with a program that balanced his need for intense, language-focused instruction while allowing him to be with peers in a setting that would be more conducive to interaction than the larger inclusion classroom. Alternatively, the School proposed two out-of-district programs, South Coast Collaborative and the Cotting School, that it deemed appropriate for Student for a variety of reasons, including their ability to provide an intensive and flexible language focus, and, particularly with the Cotting School, expertise with assistive technology.
Parents, on the other hand, contend that the School’s proposed in-house program did not provide the intense, individualized, instruction that Student needed for virtually all academics and therapies, and did not provide a data-based, sequential language acquisition program such as Lindamood-Bell, but, rather, used elements of the Wilson Reading Program, which was completely inappropriate for Student. Parents found the peer group in the language-based classroom to be completely inappropriate, as none of Student’s proposed classmates had language disabilities that were anywhere near as severe as Student’s. The Parents deemed the Cotting School inappropriate because Student’s peers would be medically compromised or otherwise more impaired than he is. Parents also deemed the South Coast Collaborative to be inappropriate.
Underlying the dispute over placement is a fundamental disagreement over whether Student in fact made progress in Sutton’s program prior to March 2005, and if Student either had not progressed or his progress had stopped at some point, whether the IEPs at issue were reasonably calculated to enable progress to take place or resume.
There is ample evidence on the record that from the time Student entered the Sutton Public Schools in1999 until he was removed in 2005 that he made slow but measurable progress in all identified areas of need, generally meeting most or all of his IEP goals. For example, over this period, Student learned to follow a classroom routine and picture schedule. His gross and fine motor skills improved considerably. His ability to attend to tasks increased from 5 to 10 minutes to 25 to30 minutes. During the winter of 2001-2002, Lori Buxton found that Student used about 25 signs and 12 word approximations on a consistent basis. About one year later, Student was using about 80 signs and increased word approximations. Student’s skill levels slowly increased up until his removal from Sutton, albeit slowly and not always consistently. Moreover, Parents, for the most part, agreed that Student was progressing, and accepted the services and placement offered. On the one occasion that they partially rejected Sutton’s proposed IEP doing so only because they sought additional speech/language services as part of an extended school day, not because they felt Student would not progress in Sutton’s program.
The record demonstrates that Student was making steady progress during 2004-2005, his final academic year in Sutton, slowly increasing his ability to function in the classroom, communicate, and make academic progress, but Dr. Dooley-Smith’s report was persuasive that Student should be placed in a smaller, specialized classroom to enable him to do more group learning.
Student’s progress was meaningful. Despite enormous challenges, Student developed from a child who did not speak at all and only had access to a few signs to a child who could communicate many of his wants and means via sign, spoken words, and emerging use of augmentative communication, who was developing pre-reading skills, whose physical skills had improved enormously. There is no reason to believe that Student would not have made continued, and likely more rapid progress in the newly-proposed program.
To sum up, since Student turned 3, Sutton has provided him with comprehensive, detailed IEP and proposed placements in partial inclusion programs. Moreover, the IEP at issue here would have provided Student with classroom placement that was small and structured enough to increase Student’s actual participation as a classroom member while also continuing to provide individualized instruction and therapies. The proposal followed from the evaluation of Dr. Dooley-Smith, and incorporated most of her salient recommendations.
I note further that Parents fully participated in and provide tremendous input into developing and implementing Sutton’s programs and services, up to and including the final IEP. Moreover, Sutton was consistently willing to adjust service delivery to Student’s evolving needs.
In reaching the foregoing conclusion, I relied on the testimony of the teachers and therapists from Sutton who had worked with Student for several years, some since he was three years old. I found their testimony to be candid and persuasive. I relied also on reports that documented progress that was not always consistent, and services that often had to be adjusted, but that overall painted a picture of a child with slowly but steadily improving ability to communicate and function both within and outside of the classroom.
On the other hand, I was not persuaded by the conclusions of Drs. Velleman and Chaskelson, that Student must be educated on an exclusively 1:1 basis until he acquires functional verbal language, at which time he can socialize with others in a meaningful way. Neither of these experts had ever observed Student in his class in Sutton, or had observed the proposed program. Moreover, the recommendations did not account for two important factors. The first is Student’s strength in the social-emotional domains, his ability and desire to relate to peers, his history of being motivated by peers, and his growing ability to ignore distractions in the academic setting. The second is the consistent recommendations for a total communication approach for Student, coupled with Student’s skill as a “total communicator.” Both of these experts seemed to discount Student’s ability to sign, albeit imperfectly, use pictures, and otherwise communicate without total reliance on speech, and did not adequately explain their departure from the unanimous past recommendations for total communication, in favor of even heavier concentration on speech development.
Finally, I find that the alternatives proposed by Sutton, either the Cotting School or South Coast Collaborative, also to be appropriate based on the evidence in the record. Both are settings that appear to have the structure and resources to address Student’s needs. Dr. Esposito testified that Cotting, in particular, has a well-developed assistive technology center.
Because I have found that Sutton had proposed an appropriate program in March 2005, I must find that Parents are not entitled to reimbursement for their unilateral placement, nor to prospective placement, and need not examine the appropriateness of that placement for that purpose.
However, the School has alleged that Parents’ placement has deprived Student of FAPE; therefore, there must be some discussion of Student’s progress in the Parents’ program to determine if the School has met its burden. A review of the testimony and documentary record indicates Student received regular, intensive, services, by licensed professionals or by a program (Lindamood-Bell) that is well established for providing certain literacy-related services. Moreover, while Student’s progress is uneven and difficult to measure accurately regardless of the settings he is in, there is evidence on the record that Student in fact derived educational benefit from his Lindamood-Bell instruction, with his speech therapist, tutor, and occupational therapist. If the record shows anything, it is that there is no one methodology or approach that is the sole approach capable of providing Student with FAPE, to the exclusion of all others, because Student’s needs are so complex. Sutton need not pay for Parents’ placement, but it has not proved that Parents’ placement denies Student FAPE.
This decision addresses only the appropriateness of the IEPs issued in March and June 2005. Obviously, Sutton has the obligation, to offer to evaluate Student and develop a new IEP based on current information, including Student’s need for, and response to, data-driven, sequential pre-reading and reading programs, and the appropriate use of assistive technology, sign language, and the like.
Finally, Parents did not present evidence or argument in support of their allegation of violations of Section 504, or of their claim regarding Student records (including jurisdictional arguments as to the latter); therefore, I deem those claims waived. The claim violations of the Massachusetts Constitution and the Americans with Disabilities Act, these claims are dismissed because the BSEA lacks jurisdiction to consider them.
CONCLUSION AND ORDER
Sutton’s proposed IEPs from March and June 2005 for the 2005-2006 school year were appropriate. Sutton is not obligated to fund Parents’ unilateral placement and services, nor to place Student in Parents’ program prospectively on the basis of the evidence now on the record. On the other hand, Parents did not violate Student’s right to a FAPE via their unilateral placement.
Sutton shall immediately notify the Parents of their rights to evaluation and a new IEP based on current information per federal and state statutes and regulations, and shall proceed with same upon receipt of parental consent.
By the Hearing Officer:
____________________ _____________________________
Sara Berman
1
Presumably word approximations and sounds.
2
There is no dispute that Student does not have any form of autism; however, Ms. Oleksyk testified that childhood apraxia of speech sometimes co-exists with autism. Thus communication techniques that she learned for use with children with autism, such as signing, might also be effective with Student. (Oleksyk)
3
Parents strenuously disagreed with much or all of Dr. Sexton’s evaluation. They felt that Dr. Sexton did not appropriately account for or accommodate Student’s severe communication disorder, did not observe Student in a natural setting, and spent an inadequate amount of time with Student, among other things, such that the test results underestimated Student’s actual capabilities. (S-74)
4
According to Tara Reynolds, Regional Director of Clinics for the Lindamood-Bell organization, phonemic awareness is the ability to perceive the order and identity of sounds in words. Symbol imagery is the ability to visualize letters and letter patterns. Concept imagery is the ability to visualize a concept when presented with a word. All three are necessary components of accurate reading. (Reynolds)
5
According to Lindamood-Bell literature, LiPS is designed to increase phonemic awareness by making students aware of how the sounds of language—letters, letter combinations, etc.–feel in their mouths (“articulatory feedback”), and then, step by step, applying this information to reading and spelling of syllables, and words. (P-41) Seeing Stars addresses symbol imagery. (P-42) Visualizing/Verbalizing (V/v) addresses comprehension.
6
Sutton also discussed a private OT evaluation and occupational therapist’s notes.
7
At various times, Student has received other therapies such as “neurofeedback;” however, Parents are not seeking public funding for these services.
8
The IDEA’s procedural requirements, among other things, are designed to ensure that IEPs are written by duly constituted TEAMs, with meaningful parental participation, and that services are delivered in a timely manner. Roland M. , 910 F.2d at 994 (citations omitted); Murphy v. Timberlane Regional Sch. Dist. , 22 F.3d 1186, 1196 (1 st Cir. 1994). The Parents do not allege any procedural errors in this matter.