COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Student v. Pittsfield Public Schools & Central Berkshire Regional School District
BSEA # 08-4603
DECISION
This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL ch. 71B), the state Administrative Procedure Act (MGL ch. 30A), and the regulations promulgated under these statutes.
The hearing was held on May 29, May 30, July 16 and July 17, 2008, at Catuogno Court Reporting, 446 Main St., Worcester, Massachusetts, before Hearing Officer Rosa I. Figueroa. Those present for all or part of the proceedings were:
Student’s Mother1
Student’s Father
Stephanie Case Special Education Director, Pittsfield Public Schools
Laurie J. Jordan CCR
Constance West Special Education Director, Central Berkshire Regional School District
Donna L. Porter, RN School Nurse, Pittsfield Public Schools
Catherine Heath, MCSW School Adjustment Counselor, Pittsfield Public Schools
Carol Scarpa Special Education Teacher, Pittsfield Public Schools
Kerin Tolin Psychologist
Karen Ingegni Fifth grade classroom teacher, Pittsfield Public Schools
Karen Mc Hugh Fifth grade classroom teacher, Pittsfield Public Schools
Karen Senus Egremont School Principal, Pittsfield Public Schools
Elizabeth Dunham Fourth grade classroom teacher, Pittsfield Public Schools
Jody Michalski Teacher, White Oak School
Claire Thompson, Esq. Attorney for Parents
Regina Williams-Tate, Esq. Attorney for Central Berkshire Regional School District
Fernand J. Dupere, Esq. Attorney for Pittsfield Public Schools
Stephanie Singer BSEA summer intern.
The official record of the hearing consists of documents submitted by Parents and marked as PE-1 through PE-39; Pittsfield Public Schools documents (Pittsfield) and marked as exhibits PFE-1 through PFE-17 and PFE-18 (except for pages 2, 3, 4 and part of 5), PFE-19 through 23, PFE-26; Central Berkshire Regional School District’s documents marked as exhibits CBE-1 through CBE-41 and CBE-43 to CBE-73 (CBE-42 was withdrawn); recorded oral testimony and oral closing argument. The record closed on August 26, 2008.
HEARING ISSUES:
1. Whether Pittsfield’s IEP effective May 11, 2007 to May 11, 2008 was reasonably calculated to provide Student with a free appropriate public education (FAPE) consistent with state and federal law?
2. Whether Parents were justified in unilaterally placing Student at White Oak School (White Oak), thereby entitling them to reimbursement for all tuition and transportation costs and expenses incurred to date for the White Oak placement;
3. Whether Central Berkshire is obligated to draft an IEP for Student’s placement at White Oak for the 2008-2009 school year?
POSITION OF THE PARTIES:
Parents’ Position:
Parents state that Student is currently entering her sixth grade at White Oak where she was unilaterally placed by them in February 2008. Student, who had been attending Pittsfield under school choice since kindergarten, was diagnosed with a language- based learning disability in the second grade. While Parents had accepted all of the IEPs promulgated by Pittsfield, they became concerned that Student was not making effective progress in her partial inclusion program starting in the fifth grade.
According to Parents, Student was falling further behind, was becoming stressed and anxious about school and school work, and began to display behavioral issues in the home. Parents state that a neuropsychological and psycho-diagnostic evaluation at McLean Hospital Learning Evaluation Clinic in July 2007, recommended that Student participate in a substantially separate language-based program. Parents allege that their concerns were shared with Pittsfield to no avail. According to Parents, after seeing further emotional and psychological deterioration in Student during the first semester of the 2007-2008 school year, in February 2008, they provided Pittsfield with the required ten-day notice and placed Student at White Oak. Parents assert that their challenge to the appropriateness of Pittsfield’s 2007-2008 IEP was consistent with the recommendations of the independent providers and evaluators. Parents state that they are entitled to reimbursement for Student’s unilateral placement at the private day school and further seek that Central Berkshire draft an IEP for Student at White Oak for the 2008-2009 school-year.
Pittsfield’s Position:
Pittsfield does not dispute that Student is eligible to receive special education services. Similarly, it does not dispute that Student presents with a language-based learning disability for which she requires an IEP.
It however, asserts that it offered Student an appropriate IEP for the 2007-2008 school year and states that Student was making documented progress in her full inclusion program, which is the least restrictive appropriate program for her. Her teachers implemented all of the accommodations in Student’s IEP. Pittsfield further states that it did not know that Student was stressed or anxious as Student was observed to be an active participant in the classroom and was making remarkable progress commensurate with her potential. According to Pittsfield, its teachers witnessed a well-adjusted social, cooperative, interested student who participated in the classroom and performed in the average range of her class.
Pittsfield disagrees with the recommendations made by D. West and Dr, White, Parents’ experts, regarding the type of educational program appropriate for Student and instead relies on the recommendations by Dr. Tobin, its clinical psychologist, who evaluated and observed Student in Pittsfield.
Pittsfield asserts that it was always responsive to Parents’ concerns when Parent raised them, for example, offering tutoring and counseling services to address Student’s alleged anxiety.
Lastly, it states that Parents’ decision to place Student at White Oak was unwarranted.
Central Berkshire’s Position:
Agreeing with Pittsfield, Central Berkshire states that Student’s IEP for the 2007-2008 school year, her fifth grade, struck an appropriate balance between educational benefit and least restrictive environment based on what Pittsfield knew about Student’s needs at the time it was developed. According to Central Berkshire, this IEP would have provided Student with a free, appropriate public education (FAPE) in the least restrictive environment. Central Berkshire states that Student was doing well academically and made effective progress in Pittsfield despite her difficulties. Pittsfield documented Student’s needs and the Team adjusted her IEP services and goals when appropriate in response to evaluative information, as well as ongoing daily observations. According to Central Berkshire, Parents cannot meet their burden of proof.
FINDINGS OF FACT:
1. The Student is an eleven-year-old girl with a language-based learning disability that has hampered her academic success. She resides in Central Berkshire School District and until early February 2008, attended Egremont Elementary School (Egremont) in Pittsfield through school choice. (Testimony of Parent) She is currently a student at White Oak School. ( Id. ).
2. Student has an average IQ but has particular areas of difficulty, including processing speed and working memory. Her average to low average reading scores do not necessarily capture the amount of work it takes Student to read—she finds it very effortful. Student is aware of her slow progress in comparison to her peers and experiences anxiety about school and homework, a concern to her parents as there is a history of bipolar disorder in her family. (PFE-8; CBE-28; PE-1).
3. Student has been diagnosed with Lyme’s Disease on three occasions starting in December 2006. (PE-1; Testimony of Parent) The symptoms cause Student to experience heightened joint and muscle pain which impacts her ability to fall and stay asleep, and makes her tired and uncomfortable to sit through the school day. ( Id. ) Symptoms of Lyme disease may include: headaches, fatigue, chills, fever, muscle pain and joint pain. (PFE-21).
4. On April 1, 2005, concerned with the Student’s progress in reading during second grade, Pittsfield Public Schools proposed an evaluation of the Student’s reading and cognitive skills. (PFE-1; CBE-3; Testimony of Parent). Parents consented to the evaluation also on April 1, 2005 but the consent appears to have been received on or about May 4, 2005. (PFE-1; CBE-4).
5. On May 25, 2005, Angel Squires, a special education teacher at Egremont, administered the Diagnostic Achievement Battery Revised DAB-3. Student scored in the 37 th percentile, which is within normal limits, in both the alphabet/word knowledge subtest and the reading comprehension subtest. She scored in the 21 st percentile in both phonological awareness and phonological memory, and in the 27 th percentile in rapid naming. Ms. Squires concluded that Student had problems with phonological awareness and phonological memory. (PFE-2; CBE-7).
6. On June 5, 2005, Student’s second grade teacher, Patricia Ricci, indicated that Student’s performance level was below that of her peers. Student’s May 2005 Dynamic Indicators of Basic Early Literacy Skills (DIBELS) placed her in the “at risk” range for oral reading fluency “well below the 90 words per minute benchmark.” (PFE-2; CBE-8). The teacher also indicated that at that time Student was receiving remedial reading instruction four to five times a week, and was given preferential seating in the classroom. Student received an 80% on her end-of-year reading assessment. (CBE-8). Ms. Ricci opined that Student would “benefit from a structured, sequential, reading program with much repetition in order to master her vowel sounds and use these skills to sound blend new words for increased fluency.” (PFE-2; CBE-8). In the second grade, Ms. Ricci found that Student’s Math skills were stronger than her reading skills. ( Id. ).
7. Pittsfield’s school psychologist, Amanda Ryan, conducted a psychological evaluation on June 3 and June 5, 2005, to determine whether a learning disability contributed to Student’s limited progress in reading. (CBE-15; PFE-3). Dr. Ryan conducted the Wechsler Intelligence Scale for Children – Fourth Edition (WISC-IV), Gray Oral Reading Test – Fourth Edition (GORT-IV) and Dynamic Indicators of Basic Early Literacy Skills (DIBELS). On the WISC-IV, Student’s Verbal Comprehension standard score was 89 (low average), Perceptual Reasoning 121 (superior), Working Memory 94 (average), Processing Speed 97 (Average), and a Full Scale IQ score of 101 (average is 90 – 109). On the GORT-IV, Student’s scores were below average for rate, accuracy, and fluency and average for comprehension. She was found to be in the 21 st percentile overall, which is considered below average. On the DIBELS, Student performed better on the first grade text than the second grade text. She produced 58 words per minute, above the benchmark of 50 words per minute. Dr. Ryan concluded that Student lacked fluency with phonics principles and reading text, and that as text becomes more difficult, Student will be less likely to compensate with her other skills in order to comprehend. Dr. Ryan recommended a comprehensive, sequential, teacher-directed program to build phonics skills and fluency. Dr. Ryan also recommended that Student be encouraged to read independently and listen to adults read aloud. (CBE-15; PFE-3).
8. As a result of these evaluations, Student was found to be eligible for special education on June 10, 2005 due to a specific learning and reading disability. (CBE-11).
9. In June 2005, Student’s Team proposed an IEP to be implemented in Student’s third grade. (PFE-3; CBE-12). The IEP provided resource reading direct services four times weekly for 45 minutes, and tutorial services twice a week for 60 minutes each. (PFE-3; CBE-13). Accommodations included a small-group setting, extended time, clarified directions, cues/prompts, providing copies of notes, graphic organizers, breaking longer presentations into shorter segments, reading materials aloud, and assisted editing. The IEP also indicated that Student requires a longer year; the school recommended tutoring over the summer to prevent regression. Parents accepted this IEP in full on June 10, 2005 (PFE-3; CBE-13).
10. Progress reports during third grade indicated that Student was working hard toward her goal, and showing steady gains, but she did not reach her annual goal of reading 92 words per minute (WPM) with no more than two errors. By June 2006, Student was reading 66 WPM with two errors. (CBE-16).
11. On May 11, 2006, Pittsfield proposed an IEP for fourth grade, for the period from May 11, 2006 through May 10, 2007. (CBE-18; PFE-5). The IEP offered Student participation in full inclusion program with pull-outs as described below. (PFE-5; CBE-18). Accommodations in this IEP included preferential seating, small groups, seating near a positive role model, extended time, clarified directions, cues/prompts, providing copies of notes, graphic organizers, breaking longer presentations into shorter segments, reading materials aloud, pairing students to check work, peer tutoring, doing pre-writing tasks, visual models, providing written outlines, and assisted editing. The service delivery grid included tutorial services for 60 minutes twice a week in the general education classroom, and under direct services in other settings: 45 minutes four times a week for resource reading; and 30 minutes four times a week for resource writing. The IEP noted that Student was below grade expectations in reading (PFE-5; CBE-18). It recommended participation in an extended school year in the form of tutoring to prevent regression. On May 11, 2006, Parents accepted the IEP as developed. (PFE-5; CBE-18).
12. Student’s Language Arts Progress reports for the 2006 – 2007 school year indicated that Student made steady progress but did not reach her annual goals in this area. By the end of the year, she was reading 81 WMP, short of her goal of 97 WPM. (CBE-19).
13. During the spring 2007, while Student was in the fourth grade, she participated in MCAS for English Language Arts and Mathematics. She scored on the border of warning and needs improvement in the English Language Arts section and in the low needs improvement range for Mathematics. (CBE-20).
14. During the 2006 – 2007 school year, Student went to the nurse’s office 45 times. Her visits took place on the following dates: 9/21/06 (sore throat), 9/28/06 (small scrape unsure as to how it occurred), 9/29/06 (had a band aid on and wanted mother to remove it), 10/5/06 (left ear hurt), 10/6/06 (epistaxis/nosebleed), 10/10/06 (stomach ache), 10/11/06 (no notation for this visit), 10/16/06 (left ear hurt, she was picked up by her father), 10/19/06 (two visits in the mid-morning for a stomach ache after breakfast and in the afternoon epistaxis/nosebleed), 10/24/06 (headache), 10/30/06 (epistaxis/nosebleed), 10/31/06 (epistaxis/nosebleed), 11/2/06 (complained that her left side was hurting in the morning), 11/3/06 (headache and her side hurts, father picked her up), 11/7/06 (epistaxis/nosebleed), 11/9/06 (two visits in mid morning and in mid afternoon epistaxis/nosebleed), 11/13/06 (arm pain), 11/14/06 (headache and soreness in the right wrist), 11/16/06 (dry skin in her right arm), 11/20/06 (epistaxis/nosebleed), 11/24/06 (epistaxis/ nosebleed), 12/6/06 (Student began treatment for Lyme disease), 12/8/06 (pain on sides), 12/14/06 (two visits in the afternoon right index finger cut and left lower back sore), 1/2/07 (epistaxis/nosebleed), 1/7/07 (indigestion in the mid morning discomfort during PE), 1/14/07 (small cut in the left middle finger), 1/24/07(right and left shoulder pain), 2/5/07 (ankle pain injury), 3/?/07 (stomach ache), 3/21/07 (indigestion), 3/22/07 (sore throat), 4/17/07 (lower left tooth is sore), 5/8/07 (epistaxis/nosebleed), 5/9/07 (stomachache, afebrile), 5/22/07 (small cut on the right thumb), 5/29/07 (dizziness), 6/7/07 (right pinky toe pain), 6/11/07 (cold, afebrile), and 6/14/07 (two visits, stomach ache, afebrile in early afternoon and epistaxis/nosebleed an hour and forty five minutes later). (PFE-19).
15. On March 16, 2007, Pittsfield proposed to proceed with Student’s three-year re-evaluation because Student was not progressing as rapidly as was expected in reading. (PFE-4; CBE-23). Parents consented to this evaluation on March 15, 2007. (CBE-23).
16. On April 11, 2007, as part of the three-year re-evaluation, Student was observed in her classroom by Catherine Heath, School Adjustment Counselor. (CBE-54; CBE-25). Ms. Heath also observed Student in the resource room setting. (Testimony of Ms. Heath) Ms. Heath found that Student did well in math but required support for reading and writing. She noted that Student had been diagnosed with Lyme disease and that she often expressed feeling ill. Ms. Heath noted that the classroom teacher stated that she was unable to tell whether Student’s illness was contributing to her not feeling well or if she did not feel well when stressed by the academic work. (CBE-25). Ms. Heath observed Student in her classroom during math. She noted that Student was attentive and worked well with her classmates. In the resource room during reading, Student was an active participant and appeared very comfortable. Overall, Ms. Heath found Student to appear comfortable in her classroom and the resource room. She recommended identifying an area of competence and allowing Student to share this area with peers in order to enhance her self-esteem and self-confidence. Ms. Heath did not seem convinced that Student had problems with anxiety but made recommendations in case such anxiety occurred. “If there remains a concern about whether or not [Student] becomes anxious with some academics, this should be discussed with [Student].” Ms. Heath recommended devising a system in which Student can discreetly indicate to her teacher her need to go to the nurse. (CBE-25). According to Parent, Student felt comfortable with the school’s nurse and used her office as a “safe heaven” when feeling stressed. (Testimony of Parent).
17. As part of the three-year reevaluation, Student was referred to Dr. Kevin Tobin for a psychological assessment. (CBE-55; CBE-25; PFE-10). Dr. Tobin, who holds a doctorate degree in clinical psychology, conducted the Woodcock Johnson Tests of Cognitive Abilities Third Edition (WJ-III). This test, which measures verbal comprehension, general knowledge, long-term retrieval, visual-spatial thinking, auditory processing, fluid reasoning, processing speed, and short-term memory, indicated that Student was within the average range with significant variability among her subtest scores. Verbal comprehension and numbers reversed were mildly impaired, concept formation was advanced, and the other subtests were within normal limits. Student was at the 37 th percentile compared to students her age. Dr. Tobin noted a significant discrepancy between Student’s fluid reasoning skills and her verbal ability. (CBE-26; PFE-10). He also administered the Wechsler Individual Achievement Test – Second Edition (WIAT-II). Student earned a reading composite score of 86 +/- 3, a math composite score of 86 +/- 7, and a writing composite score of 86 +/- 7. Her scores indicate that she is below average in basic reading, math, and spelling and has average reading comprehension and written expression. Based on these scores, Dr. Tobin diagnosed a specific learning disability for basic reading and spelling and impaired reading fluency. (CBE-26; PFE-10). Dr. Tobin conducted curriculum-based measurement, which indicated that her reading comprehension was average, at the 50 th percentile compared to national norms. In sum, Dr. Tobin noted that Student has below average verbal comprehension but average fluid reasoning ability. She has average concept formation and inductive reasoning ability. She has average processing speed. She has impaired academic skills in basic reading and reading fluency but has average reading comprehension and written expression. (CBE-26; PFE-10). She has average auditory working memory. She is weak in word recognition and reading fluency under some conditions. (CBE-26; PFE-10).
18. As a result of this evaluation, Dr. Tobin recommended that oral directions be brief and lectures be supported with demonstrations, charts, and pictures. As Student gets older, study guides and/or lecture notes should be provided to her. He further recommended that she be engaged in instruction that involves activities with problem solving and experiential learning and that she learn strategies to improve deductive skills. He specifically recommended Skills for School Success as a learning study strategy and Spelling Through Morphographs for her spelling skills. According to Dr. Tobin, Student required effective instruction to develop her vocabulary so as to facilitate reading and knowledge acquisition. He recommended systematic structured instruction in vocabulary and knowledge and continued resource room support. He also recommended extended time on tests or alternative testing and modified assignments. (CBE-26; PFE-10).
19. Student’s fourth grade teacher, Ms. Brunell-Dunham, completed an Educational Assessment (PE-18, PE-26). She indicated that Student was not making progress in the general education curriculum. She stated that Student was scoring below grade level in reading fluency and showed gaps in math according to Dr. Tobin’s assessment. Ms. Brunell-Dunham noted that Student’s low reading fluency was affecting all areas of study. She did not note any attention difficulties and indicated that Student participated appropriately in classroom activities and displayed age-appropriate communication skills and interpersonal skills. (PE-18; PE-26).
20. The results of Student’s three-year reevaluation indicated that she remained eligible for special education due to a specific learning disability in reading and math. (CBE-27).
21. Student’s Team drafted an IEP for the remainder of Student’s fourth and fifth grades, covering the period from May 11, 2007 through May 10, 2008. (PFE-4, CBE-24). This IEP indicated that Student’s educational strengths were hands-on activities, reading comprehension, verbal vocabulary, and an eagerness to learn reading. The IEP noted that Student’s accomplishments included adjusting well to the general education environment and maintaining a high motivation to learn. The IEP noted that Student has good potential to succeed in the classroom but was currently below fourth grade expectations in reading and math. It included the same accommodations as the previous year’s IEPs and added assisted editing, use of a calculator, and organizational assists. (PFE-4, CBE-24). Goals were included for Mathematics and English Language Arts. The Service Delivery grid provided tutorial services at a rate of 120 minutes twice weekly as direct services in the general education classroom, (Grid B), and resource reading for 45 minutes, four times weekly, and resource math for 45 minutes, four times weekly as direct services in other settings. The IEP, which offered Student participation in a full inclusion program with pull out services for reading and math, was accepted by Parents as developed on May 11, 2007. (PFE-4; CBE-24).
22. During fifth grade, Student visited the nurse’s office 20 times. (PFE-20) She was seen on 9/20/07 (given medication for Lyme disease and a second visit for a epistaxis/nosebleed), 9/21/07 (nosebleed), 9/24/07 (nosebleed), 9/28/07 (nosebleed, left hand three small pin point dots/dog bite), 10/1/07 (pain in the left knee related to riding a bicycle the previous day and said words were blurry when she was reading), 10/5/07 (right ankle scab off), 12/4/07 (right pinky small scrape), 12/18/07 (sore throat/ afebrile), 1/3/07 (stomach ache and afebrile), 1/8/08, (lost a lose tooth) ?/ ?/082 (stomach ache), 1/11/08 (heart beating fast in physical education), 1/15/08 (Mother called the nurse because Student was anxious about coming to school; Student came into the nurse’s office in the early afternoon with a stomach ache and her eyes hurt), 1/17/08 (nurse spoke with Student who stated she had a cold), 1/25/08 (two visits in the morning felt like heart was pounding when she came out of physical education and in the afternoon for a stomach ache and headache), 1/28/08 (ringing in the ears and headache), 1/29/08 (stomach ache), 2/4/08 (stomach ache), and 2/6/08 (stomach ache, headache, right forearm appears red rash like, sore to touch). (PFE-20).
23. In July 2007, Parents arranged for Student to be evaluated by McLean Hospital. They sought to gain a better understanding of Student’s learning difficulties especially since, in their view, , school had become so stressful for Student that she had regular crying spells when attempting to complete her homework. (PFE-8; CBE-28; PE-1; Testimony of Parent). Parent also indicated that Student was having difficulty falling asleep on Sunday nights because of her concerns about the upcoming school week. Both Student’s mother and the fourth grade teacher were concerned that Student was escaping classroom demands by emphasizing the uncomfortable physical symptoms she experienced in relation to Lyme disease. Parent also reported difficulties in math particularly with fractions and multiplication. She had not yet memorized her multiplication tables. (PE-1).
24. Prior to conducting the assessments at McLean, Parents and two teachers were asked to complete forms that sought to gain their perspective regarding specific information about Student. (PE-38; PE-39).
25. McLean Hospital requested that Student’s teachers complete an elementary school form prior to the evaluation. (PE-37). The form completed by Ms. Brunell-Dunham, Student’s fourth grade teacher, indicated that
[Student] is starting to show signs of stress during class time, probably due to a growing understanding of her abilities versus others. How can we help her overcome this stress[?] (Behavioral plan?). (PE-37).
Ms. Heath testified that she never had a discussion with Ms. Brunell-Dunham regarding the latter’s concerns or the statement above. (Testimony of Ms. Heath) The form also requested an explanation regarding how Student’s disability was impacting her ability to do math, reading and writing. (PE-37) Ms. Brunell-Dunham checked off that Student was easily frustrated in efforts but noted that this does not show in the school setting. She did not note any concerns with Student’s mood except that Student is “just a little” worried about many things. She noted no inappropriate behavior or social skills. Ms. Brunell-Dunham indicated that Student’s low fluency rate was affecting Student’s comprehension and her achievement in content areas. (PE-37) In her opinion, Student’s reading comprehension, oral reading and reading rate were delayed by more than a year, while reading word analysis skills was delayed less than one year. In writing, she estimated that content, spelling, grammar and creative writing were delayed less than one year, while
punctuation and capitalization were age appropriate. Overall, Ms. Brunell-Dunham estimated Student’s reading to fall within the third grade level. Mrs. Brunell-Dunham did not testify.
26. Angel Squires, Student’s special education teacher in Pittsfield, also filled out an elementary school form for McLean Hospital. (PE-38). Ms. Squires did not have any questions regarding Student’s performance or emotional/behavioral functioning. She checked off that Student had some difficulty learning, was easily distracted, daydreams, failed to finish things, and was easily frustrated. She indicated that Student sometimes had trouble finding the right words. She did not indicate any concerns with Student’s behavior. Ms. Squires indicated that Student was “just a little” worried about many things and put herself down. (PE-38).
27. In the Parent Questionnaire, Parent indicated that her biggest concern was reading followed by math. (PE-39). Parent also felt that Student had short-term memory issues and great difficulty in learning. Parent indicated that Student was constantly frustrated. Student’s inability to keep up in school was creating stress, which was starting to manifest itself physically. She indicated that Student rarely completed her homework; after six hours at school “the last thing she wants to do is come home and feel inferior.” Parent reported that Student cried almost nightly about her homework. (PE-39).
28. The Mc Lean Hospital evaluation was conducted by Dr. Boaz Levy, Ph.D. staff neuropsychologist, and Dr. James Chok, post doctoral fellow, under the supervision of Dr. Jenifer White, Mc Lean Hospital Learning Evaluation Clinic Director, and the educational portion of the evaluation was performed by Courtney Standish, Psy.D. (PE-1) This evaluation included neuropsychological, educational, emotional and psychological assessments. (PFE-8; CBE-28; PE-1; Testimony of Dr. White) By Parental report, family history is relevant for bipolar disorder. ( Id. ; Testimony of Parent)
A. As part of the neuropsychological assessment, the evaluators administered the Wechsler Intelligence Scale for Children – Fourth Edition (WISC-IV), on which Student achieved a Full Scale IQ score of 91, which is in the 27 th percentile, placing her in the average range of intellectual functioning. Student was in the lower half of the average range on verbal comprehension. Her performance on verbal abstract reasoning tasks improved dramatically in comparison to her performance on the same subtest in 2005. On the perceptual reasoning index, Student achieved an overall score of 100, which is in the 50 th percentile. She had difficulty with visual-spatial integration. Student scored in the low end of the average range (25 th percentile) for verbal attention, in the average range but with some struggles in nonverbal attention, from the low to the superior range on processing speed, and from low to average on working memory. Her verbal working memory was found to be more impaired than her nonverbal working memory.3
B. Executive functioning tasks suggested that Student could do well but had difficulties switching approaches, incorporating feedback, and progressing in a more flexible manner. She performed well on the Stroop Color test, indicating an adequate ability to inhibit her responses and block out distractions.
C. Student’s performance on the California Verbal Learning Test – Children’s Version (CVLT-C) indicates that she is able to learn at a rate consistent with other children her age. She had more success learning and recalling short passages than long ones, indicating a possible retrieval difficulty.
D. The Rey-Osterrieth Complex Figure – Developmental Scoring System (ROCFT) demonstrated that Student has significant organizational difficulties and poor motor planning.
E. The educational assessment conducted by Courtney Standish reflected that on rapid naming measures, Student was in the 16 th percentile for digits and 25 th percentile for letters, a 3.0 and 3.4 grade equivalent respectively. On a task of parsing words into their component sounds, Student fell in the below average ability in the 9 th percentile (2.4 grade equivalent). Her decoding skills for nonsense works were in the 26 th percentile, 2.5 grade equivalent. Her decoding skills for single words were in the 13 th percentile, a second grade equivalent. Her oral reading skills were average: 16 th percentile for oral reading rate, 37 th percentile for reading accuracy, 25 th percentile for oral reading fluency, and 50 th percentile for reading comprehension. She scored in the 24 th percentile for a separate reading comprehension task. Ms. Standish’s summary indicated that Student’s scores are all below average to average, but the numbers do not necessarily capture the amount of work it takes her to read.
F. Student had below average verbal fluency and average naming ability. She has an average receptive vocabulary (68 th percentile). Her spelling skills were below average and indicated a lowered understanding of sound-letter relationships and spelling rules. Her writing skills are less developed than other children her age.
G. Student showed below average math skills. Overall, she was in the 23 rd percentile, a third grade skill level. Her fluency with basic math facts was in the 9 th percentile, 2.9 grade equivalent.
H. Drs. Chok and Levy also conducted an emotional assessment. They noted Student’s high energy level. She often spoke too quickly for the evaluators to keep up. When asked to repeat what she said, she added new information rather than referencing her earlier comments. Student’s protocol suggested that she often experiences anxiety and distress. She reported that she sometimes has nightmares. Many of her responses on the Rorschach included scary images. When emotionally triggered, Student’s thinking became less coherent.
I. Student reported that she disliked school because “it is so hard.” She does not feel like the supports she received were helping her improve. She felt like she had too much homework. Given Parent’s reports and Student’s statements, the evaluators concluded that “school was stressful and distressing for [Student].”
J. The McLean evaluators expressed doubt about Student’s ability to negotiate the growing workload of middle school. She was unable to keep up with the demands of fourth grade, and it was unlikely that her then current supports would suffice to compensate for her multiple impairments. Given that she was already experiencing school-related stress, the evaluators indicated that Student needed a much more supportive setting where she could complete most of her homework in school under the supervision of a special education teacher. They recommended that she participate in a language-based program or specialized school with small group language-based classroom. They recommend taking most classes in one classroom. They suggested immediate assistance and feedback from a teacher or aide when she experienced difficulties. Student required a curriculum she could access, where she felt that she was learning, experiencing success, and suffering little school-related stress.
K. The evaluators made a number of specific recommendations for Student’s academic program, including: presenting information slowly and repeatedly; providing oral instructions in written form, broken down into a list or step-by-step process; strategies to help Student write down brief summary statements as instructions are given; verifying correct encoding of information by asking open-ended question; and keeping instructions brief. Due to Student’s pressured, action-oriented style and difficulty shifting and organizing her thoughts, the evaluators recommended that she be encouraged to take her time and be praised for correct responses; that she be regularly prompted to review her work; that she be encouraged to create outlines; and that she receive explicit instruction to help her slow down and plan her work. Because Student has trouble accessing her thoughts and outputting her ideas accurately and fluidly, she would benefit from cognitive exercising and help redirecting her thoughts. Due to her deficit in processing symbols, she would benefit from a multi-sensory instruction style that supplemented visual information with verbal prompts and tactile inputs. She needed ongoing remedial instruction in reading, writing and math. Due to her stress level, assignments should be modified in length and complexity; she would benefit from supportive instruction that allowed her to complete most of her homework at school; and she may require shorter learning periods with breaks. The evaluators noted that Student tended not to express her negative emotions and would benefit from assistance in expressing such emotions. Any behavior indicative of internal distress should be taken seriously. The evaluators recommended that Student’s parents monitor her mood and behavior, seek the support of a professional familiar with bipolar disorder, monitor her sleeping, and help develop strategies to manage emotions as “stress increase[d] her risk for the development of a psychiatric disorder, particularly when considering her genetic risk for bipolar disorder.” (PFE-8; CBE-28; PE-1).
Projective testing was used as a means to access what was in Student’s mind by presenting abstract ambiguous images and allowing her to suggest what it meant. It allows the student to share of him/herself without becoming defensive. It is helpful to understand what is going through a child’s mind from a psychological standpoint. (Testimony of Dr. White).
29. Student began her fifth grade in the full inclusion classroom in Pittsfield. (Testimony of Parent) According to Parent, the difficulties continued and worsened, with Student protesting more regularly that she did not want to go to school, crying and complaining of physical maladies. Student pushed papers onto the floor when working with Parent. She stated that she was afraid to go to school without her homework done. Sunday evenings became the most difficult with Student protesting that she did not want to go to school and did not like it because it was “so hard”, and requesting to cuddle with Parent on the couch for long periods of time until she fell asleep, something Parent interpreted as a sign of regression. While some of the aforementioned behaviors began to be displayed in the fourth grade, they continued and worsened during the fifth grade. Student’s somatic symptoms escalated to vomiting in the morning to avoid being sent to school, but feeling better a while later. ( Id. ).
30. On October 1, 2007, Pittsfield convened Student’s Team to review the McLean’s Hospital evaluation report. (PFE-4; CBE-29). Lee Steel, Supervisor of Special Education, was the Team leader. (CBE-31; PFE-6). According to the narrative description of school district proposal on the resulting IEP amendment, Pittsfield agreed to provide tutorial services to help ease Student’s stress and anxiety regarding her ability to keep pace with her school work. (CBE-31; PFE-6). Tutorial services were approved for one hour, from 3:15 pm to 4:15 pm, three times per week starting on October 9, 2007. (CBE-32) The narrative also indicated that the Team recommended that Parents visit the psycholinguistic classroom at Crosby Elementary School as a possible placement for Student. (CBE-31; PFE-6). It was later determined that Student was too old for the psycholinguistic classroom. (CBE-36; Testimony of Parent).
31. Lee Steel forwarded to Parents an Amendment to the IEP on October 2, 2007. (PFE-6; CBE-31). The amendment included additional tutorial services three times a week for an hour, because Student was having difficulty keeping pace with the grade 5th grade workload and was experiencing frustration and stress. ( Id .) On the tutor request form, Ms. Steel wrote that Student
Receive[d] two periods per day of academic support and she is still not making adequate progress. She is also experiencing a high level of anxiety. (PFE-6; CBE-31; PE-19).
Shortly thereafter, Pittsfield hired a tutor for Student (CBE-32). Ms. Steel did not testify at the hearing.
32. Catherine Heath, the school adjustment counselor who had earlier observed Student in her classroom, reported that on October 5, 2008, she met with Parent to discuss her availability for Student as part of regular education services. Parent talked about pursuing “something outside” so as not to add to Student’s anxiety or stress in school. (PFE-24; PFE-26; Testimony of Ms. Heath).
33. In October 2007, Pittsfield forwarded a Team Meeting Notice to Parents, notifying them that the team would meet on October 12, 2007. (CBE-33).
34. On November 3, 2007, Parents responded to the IEP amendment issued on October 2, 2007, rejecting the portions of the IEP and amendment that were inconsistent with the recommendations of the McLean Hospital evaluation. They also rejected the sufficiency of the services offered and the intensity of the program. Parents indicated that they would conduct expert and parent observations of Student’s current model of instruction. In the meantime, Parents accepted all special education services proposed. (PFE-4; PFE-6; CBE-36; PE-22).
35. On November 6, 2007, Parents’ attorney wrote to Pittsfield’s Director of Special Education requesting a referral for Student to the White Oak School. (Parents’ Hearing Request; PFE-6; CBE-38). Pittsfield responded that Student’s needs were being met in the Pittsfield placement. Central Berkshire responded that no out-of-district placement could be supported since Central Berkshire had not had the opportunity to participate in the decision-making process regarding Student who was in Pittsfield under school choice. (CBE-40).
36. Beginning on November 6, 2007, Parents arranged for Student to be seen by Carolyn K. West, Ph. D., to address Student’s increasing reticence to attend school, a reticence accompanied by a cluster of somatic complaints often associated with anxious responding. (PE-3; CBE-73; Testimony of Parent, Dr. West). Dr. West met with Student on November 14, 28, December 5 and 19, 2007 and January 9, 23, and February 6, 2008. (Testimony of Dr. West).
37. A report by Dr. West, written after seven sessions with Student, stated that Student had anxiety about schoolwork. (PE-3; PFE-9). Student reported to Dr. West that she always had trouble doing things and that she worried when she was at school. Student selected “very true for me” as a response to the following statements:
My teachers say things that are too hard to understand.
I have trouble remembering some things right after the teacher says them.
Memorizing is hard for me.
How I do in school is very important to me.
I have trouble with spelling.
I read too slowly.
I get confused when people give me several things to do in a row.
When I have a test, I finish after most of the other kids.
I have trouble getting started with my homework.
Teachers do not give me enough time to think.
I worry about school a lot.
Student also acknowledged as true her difficulties with reading, writing letters or numbers backwards, remembering or accessing information when she needed it, and felt that even when she studied she did badly on tests. (PE-3) Dr. West noted that Student’s responses were attuned with the McLean Hospital report; she knew her strengths and weaknesses. (PE-3). She tried strategies for reducing stress, but found that such strategies offered apart from an educational plan that provides respite from the source of anxiety appear insufficient. Dr. West found it “imperative” that Student be placed in an academic environment that not only provides appropriate instruction but also makes her feel emotionally safe. “Without this, she will not be able to engage fully in the learning process and her emotional well-being will be jeopardized.” (PE-3).
38. Dr. West opined that Student’s aversion to school was caused by the widening gap between grade expectations and achievement, along with a growing awareness that she is unable to keep up with others and meet expectations. Because of Student’s temperamental and psychological makeup, Dr. West was of the opinion that Student was vulnerable to anxiety and depression and that an appropriate placement and instruction was a critical consideration. (PE-3; PFE-9).
39. On November 8, 2007, Student visited the White Oak School. (CBE-61) Parent’s first telephonic inquiry to White Oak School was on March 15, 2007. White Oak School’s file notes entreys for March 26 and September 13, 2007, indicate receipt of additional information from Parents regarding Student. (CBE-61).
40. On November 15, 2008, Central Berkshire’s attorney wrote to Parents attorney advising her that Student was a resident of Central Berkshire and in Pittsfield under school choice. (CBE-40). As such, any out of district placement could occur only after a Team meeting where Central Berkshire was present. Since no such meeting had occurred, there was no basis for Parents request that referral packets were sent to out- of-district programs. Central Berkshire stated its belief that Student was already in an appropriate placement and denied Parents’ request to send referral packets. Central Berkshire found Parents request to be premature given that as the entity with financial responsibility for Student, it had not had an opportunity to participate in decision making regarding Student’s programming. (CBE-40).
41. Student’s transcript for the first and second quarters of her fifth grade show that she was tardy three times and absent six times in the first quarter, and was tardy 14 times and absent six times in the second quarter. (PFE-13) According to Parent, she was absent less than that and at least two of her absences in November 2007 were to meet with Dr. West and visit White Oak. (Testimony of Parent).
42. On January 3, 2008, Dr. Jennifer White, the clinical neuropsychologist at McLean Hospital who oversaw Student’s evaluation in 2007, observed Student in her fifth grade class in Pittsfield. (PFE-6; PE-2). She noted that Student participated in her Social Studies and Science classes. During the reading group pull-out, Dr. White noted that Student worked first in a group and then when the group left, she worked on her own; the teacher did not provide feedback or correct Student’s mistakes. During Student’s mainstream Language Arts class, she volunteered to read out loud from an overhead and did “a nice job.” Dr. White noted that the mainstream classes required students to use a lot of language-based skills, which she thought might place Student at a serious disadvantage. She stated that it was likely “enormously stressful” for Student to be required to rely on learning tools (reading, writing, retrieving information) that had not been adequately developed. She noted that because Student did not have any behavior problems, and was eager to please, it was easy to overlook any potential stress she might be experiencing. Dr. White found the reading support services limited and not well integrated with the mainstream program. Much of the information in Student’s mainstream classes was presented on an overhead projector. Dr. White opined that information delivered primarily in this manner would be hard for Student to take in because she would have to work so hard to process and copy it. Dr. White concluded that Student’s program did not match the recommendations of the McLean evaluation. She praised Student’s fifth grade teacher but indicated that she was limited in what her role as a teacher of a large class allowed her to do. As a result, Student was not getting the individualized attention she required in order to make appropriate gains. (PE-2; Testimony of Dr. White).
43. On January 25, 2008, Parents notified Pittsfield and Central Berkshire that they would be unilaterally enrolling Student at the White Oak School (White Oak) unless the parties could reach an agreement within 10 days. (PFE-6; CBE-44).
44. On January 28, 2008, Pittsfield responded by scheduling a Team meeting which took place on February 5, 2008. (CBE-45; CBE-46). At the team meeting Karen Ingegni, Student’s fifth-grade teacher, reported that Student did well on written assignments with support and guidance. (CBE-47). Ms. Ingegni is a certified regular education and reading teacher in Massachusetts. (CBE-56). Student received an 84 in math when directions were read and clarified for her. She received daily reading instruction in the classroom in addition to the resource room. Regarding Student’s progress it was noted that in the fall 2007, Student read 84 WPM with four errors on the DIBELS, the benchmark was 104 WPM with three or fewer errors. In the winter, Student read 95 WPM with two errors on the DIBELS, short of the benchmark of 115 WPM with three or fewer errors. On the GRADE diagnostic reading test, Student scored a four on comprehension, a five on vocabulary, and a five on listening comprehension (six is considered equivalent to a proficient score on the MCAS). Her standard score was a 94 with 100 as the average, which is a grade equivalent of 4.1. Student scored a Needs Improvement in the spring 2007 MCAS, got 75% of her questions right on the fall 2007 ELA MCAS practice, and got 78% correct on the winter 2007 ELA MCAS practice. Mrs. Ingegni indicated that Student’s success in the classroom is not reflected on standardized testing. (CBE-47).
45. Ms. Karen McHugh, grade five social studies teacher, indicated that Student participated in class discussions and activities. (CBE-57; CBE-47). Regarding Student’s accommodations, she had preferential seating, notes were provided, and tests were read to her. In that class, Student’s tests scores were 78, 80, and 92. (CBE-47).
46. Student’s IEP progress reports issued in November 2007 indicated that she was struggling in math, specifically with math facts and multiplication tables, and continued to need assistance in calculating her math examples. Her organizational skills needed to be monitored. (CBE-34). Student received a C+ on her report card for the first quarter of the 2007– 2008 school year. (PFE-22). In the second quarter, she received a B. (PFE-23). She received an “Needs Improvement High” proficiency score on a practice MCAS in January 2008, that is, she got a score of 78% on the multiple-choice questions and 25% on the open response questions, for a total of 62% correct. (PFE-25).
47. Student’s Team convened on February 5, 2008. (CBE-46). Representatives from Pittsfield and Central Berkshire were present at this meeting. Ms. Squires, Colleen Tragger, or Ms. Steel were present. (CBE-47; Testimony of Ms. Ingegni).
48. On February 7, 2008 following the February 5, 2008 Team meeting, Stephanie Case, Director of Special Education in Pittsfield (CBE-53), wrote to Parents stating that the Pittsfield staff did not observe the stress and anxiety in Student reported by Parents but Pittsfield was willing to provide counseling services. These services, while not a part of Student’s IEP, would be “wrap around services that included home-school communication, consultation and outreach services by the School Adjustment Counselor.” (CBE-48).
49. On February 7, 2008, Parents informed Pittsfield that they were withdrawing Student from Pittsfield and enrolling her at White Oak, due to the inappropriateness of Pittsfield’s program to meet Student’s needs. (CBE-49). A copy of this letter was forwarded to Connie West, Interim Special Education Director at Central Berkshire and Parents’ Attorney. ( Id. )
50. On February 11, 2008, Student began attending White Oak School. (CBE-61; CBE-61).
51. White Oak provides a comprehensive, full-day program of language-based classes that are designed to serve the needs of students with specific learning disabilities. (PE-6). The program includes one-on-one service for all students without interrupting the regular school day. (PE-6). White Oak does not accept children with a clinical diagnosis of behavioral disorder. (Testimony of Mr. Drake).
52. At White Oak, Student has no more than seven other students in her classes. (CBE-66; CBE-67; CBE-68; CBE-69; CBE-70; CBE-71; CBE-72). In Student’s class, the other students’ grade levels range from fifth (like Student) to eighth. (CBE-65).
53. David Drake, White Oak’s Head Master, testified that the school is designed to assist language disabled children. It is a full day, private school, approved in Massachusetts by the Department of Elementary and Secondary Education. (Testimony of Mr. Drake). The school follows the Massachusetts Curriculum Frameworks. It services children with language learning disabilities between the ages of nine and eighteen. The teacher /student ratio is approximately one teacher to three students. (Testimony of Mr. Drake).
54. White Oak teachers participate in in-service training bi-weekly, receive supervision by the academic dean, and all are required to participate in the same thirty-five(35) to forty (40) hour in-house language training which include similar techniques to those used in Orton-Gillingham or Wilson programs. (CBE-62; CBE; 63; CBE; 64; CBE-65; Testimony of Mr. Drake). This training has prepared them to address the language-based needs of students such as Student. (CBE-62; CBE–63; CBE-64). All of the teachers provide one to one tutorial to students, as language is at the center of teaching across all settings and curriculum areas, thereby providing uniformity in their approach Teachers meet before and after classes and bi-weekly for one and a half hours to discuss students and participate in faculty workshops. (Testimony of Mr. Drake, Ms. Michalski)
55. Mr. Drake testified that he reviewed the Mc Lean Hospital report, obtained a history from Parents and reviewed other Pittsfield school documents provided by Parents. As part of the screening/admission process, Student was invited to spend a day at White Oak in November 2007. Mr. Drake opined that Student fell within the cluster of disabilities typical for language-based issues. School was very difficult for Student who as a result experienced great frustration and displayed avoidance of school.
56. White Oak School proposed a service plan, as required by the Department of Elementary and Secondary Education, covering the period from February 2008 to April 2008. (PE-7). (This service plan uses the same format as an IEP but an IEP per se is not drafted unless the student is placed by a school district.) (Testimony of Mr. Drake). Student was placed in a small, language-based class of no more than eight students who shared similar learning profiles and where instruction was delivered in a multi-sensory format. (PFE-7; PE-7) The plan included a one-to-one reading tutorial for 50 minutes, five days a week. Student would be provided with a calculator and word processor with spell-checker. Tests would be untimed and read aloud to her. Since Student was not placed at White Oak by a school district, the service plan did not include specific benchmarks or goals but rather referred to improvement in reading, math, written expression, and organizational skills. (PFE-7; PE-7; Testimony of Drake, Michalski) The plan set out Student’s schedule, which included 50 minutes five times a week of reading tutorial, language arts, math, science, social studies, and oral expression, as well as 50 minutes two to three times a week of expanded arts/computers and 50 minutes two to three times a week of physical education. (PFE-7; PE-7). All students participate in a tutorial which is one hundred percent (100%) individually paced. Social pragmatics is addressed daily. (Testimony of Mr. Drake) The period from February to April would be used to get to know Student and assess her needs. White Oak did not propose an extended school year. Parents accepted the plan in full on February 11, 2008. (PFE-7; PE-7).
57. White Oak then drafted a second service plan covering the period from April 2008 through April 2009. Parents also accepted this plan in full on April 14, 2008. (PFE-7; PE-8). The accommodations were the same as those of the February – April 2008 plan. The curriculum was to be modified to include more remediation skill development than is typically found in fifth grade, and the rate of instruction guided by Student’s skills. Benchmarks and objectives were developed for each of Student’s curriculum areas as well as time management, homework and organizational skills. Student’s schedule remained the same as the previous plan. (PE-8).
58. On February 13, 2008, Parents filed a hearing request with the BSEA against Pittsfield and Central Berkshire. (PFE-6, CBE-50). Pittsfield scheduled a Resolution Meeting for February 27, 2008, in accordance with IDEA 2004 which was waived by the Parties. (CBE-50; CBE-51).
59. White Oak progress reports issued in March 2008 indicated that Student might achieve her goals by the end of the IEP period in April but that she needed ongoing instruction, particularly in previously identified areas of need. (PE-10). Since Student started at White Oak, there have been no instances of tardiness or absence regardless of weather or the distance travelled by her to get there. She has integrated well socially and academically, seems happy, routinely completes her homework on time and has displayed no avoidance behaviors. Teachers report being pleased with her progress. (Testimony of Mr. Drake) According to Mr. Drake, all of the recommendations in Dr. Tobin’s and the Mc Lean Hospital reports are being implemented. Student’s biggest distraction is other classmates; in that regard, she is benefitting from participation in very small classrooms of five or so students. Her difficulties are addressed immediately, as the staff recognizes that one of the challenges in working with children with expressive language disabilities is that they do not always have the language available to express what their difficulty is. At White Oak, teachers do not rely on the student’s raising his/her hand seeking assistance, which in other types of settings may cause a stigma. As a result, students do not experience frustration because they cannot explain the problem. (Testimony of Mr. Drake)
CONCLUSIONS OF LAW :
The Parties do not dispute that Student is an individual with a disability falling within the purview of the Individuals with Disabilities Education Act4 (IDEA) and the state special education statute.5 As such, Student is entitled to a free appropriate public education (FAPE).6 The dispute among the Parties is whether the program offered by Pittsfield for the 2007-2008 school year was reasonably calculated to offer Student a FAPE, and if not, whether Parents are entitled to reimbursement for the unilateral placement of Student at White Oak. In rendering my decision, I rely on the facts recited in the Facts section of this decision and incorporate them by reference to avoid restating them except where necessary.
The IDEA and the Massachusetts special education law, as well as the regulations promulgated under those acts, mandate that school districts offer eligible students a FAPE. A FAPE requires that a student’s individualized education program (IEP) be tailored to address the student’s unique needs7 in a way reasonably calculated to enable the student to make meaningful8 and effective9 educational progress. Additionally, said program and services must be delivered in the least restrictive environment appropriate to meet the student’s needs.10 Under the aforementioned standards, public schools must offer eligible students a s pecial education program and services specifically designed for each student so as to develop that particular individual’s educational potential .11 Educational progress is then measured in relation to the potential of the particular student.12 School districts are responsible to offer students programs and services that will allow them to make meaningful, effective progress.13
In the case at bar, Student, an eleven-year-old resident of Windsor, Massachusetts is beginning her sixth grade at White Oak under Parents’ unilateral placement. She presents with a language-based learning disability, which impacts her written and verbal functioning, organizational skills and executive functioning. For approximately one and a half years prior to entering White Oak, she displayed increased school avoidance with physical manifestations such as stomachaches, headaches and vomiting, and frustration and stress over academic achievement. After initially accepting the IEP in May 2007, having had Student evaluated at McLean Hospital in July 2007, and dissatisfied with the services in Pittsfield, Parents rejected the IEP and unilaterally placed Student at White Oak in February 2008. Prior to her removal, Student received her education through participation in a full inclusion program with pull-out special education services in Pittsfield, through school choice.
I first turn to the question of the appropriateness of Pittsfield’s program and placement in light of the evaluations and information available regarding Student as well as her then current performance.
Pittsfield’s program and placement :
The McLean Hospital evaluation and Pittsfield’s evaluation agree on the types of services that would be appropriate for Student, but differ as to how significant they view Student’s disabilities to be. In July 2007, the McLean Hospital evaluation found that Student performed two or more years behind age-like peers across all basic skills including reading comprehension, oral reading and reading rate, writing and math with “profound impairment in the mechanics of reading.” (Testimony of Dr. White) Testing showed significant discrepancies in verbal comprehension, and processing speed was also lower. According to Dr. White, students with specific disabilities in academic areas who are inefficient in pencil to paper tasks are likely to experience increased stress. ( Id. )
Relying on Dr. Tobin’s report, Pittsfield found that Student’s delays were equivalent to not more than one year. Dr. Tobin is a clinical psychologist and did not conduct language-based testing.
During the Team meeting in late January 2008, Karen Ingegni, Student’s fifth-grade teacher, reported that Student did well on written assignments with support and guidance. (CBE-47). In math, Student received an 84 when directions were read and clarified for her. Daily reading instruction was provided in the classroom in addition to the resource room. Ms. Ingegni noted that in the fall 2007, Student read 84 WPM with four errors on the DIBELS, the benchmark was 104 WPM with three or fewer errors. In the winter, Student read 95 WPM with two errors on the DIBELS, short of the benchmark of 115 WPM with three or fewer errors. ( Id. ) By February 2008, she was not yet at the level expected of a fifth grader for reading fluency when accessing grade level material.
On October 9, 2007, Student had been administered the GRADE diagnostic reading test. She scored a four on comprehension, a five on vocabulary, and a five on listening comprehension (six is considered equivalent to a proficient score on the MCAS). Her standard score was a 94 with 100 as the average, which is a grade equivalent of 4.1. At the time Student was in the first semester of her fifth grade (5.2). In the spring 2007 MCAS, Student scored a Needs Improvement for English Language Arts and math. She got 75% of her questions right on the fall 2007 ELA MCAS practice, and got 78% correct on the winter 2007 ELA MCAS practice. Mrs. Ingegni indicated that Student’s success in the classroom was not reflected in standardized testing and suggested that Student continue reading independently to improve oral fluency and decoding skills. (CBE-47). At hearing Ms. Ingegni was of the opinion that Student would meet her benchmarks by the end of the year, however, the evidence does not support such conclusion, as all of the aforementioned testing showed that she remained at least one year behind, consistent with her performance during fourth grade.
As academic demands and level of difficulty increase, it is likely that the gap between Student and her peers will widen without proper intervention. The above-noted test results show that Student made progress, but the question is whether this student, with average intelligence, made effective progress within the context of the IDEA and commensurate with her potential.
Pittsfield and Central Berkshire argued that Student was of average to low average intelligence; that given this profile and her disabilities, she had made good progress; and that her disability was not of such magnitude as to require an out of district placement.
Both Dr. Tobin and McLean Hospital evaluations made similar recommendations regarding the types of interventions appropriate to address Student’s language learning disabilities. These interventions focus on the importance of information being broken down, presented at a slower pace with an experiential teaching approach. The immediacy of feedback when Student makes mistakes is also an essential component. Ms. Ingegni and Ms. McHugh testified that Student receives preferential seating and that despite the approximately twenty students in their classrooms, they are able to implement all of the recommendations made by Dr. Tobin. Dr. White’s observation raises concerns regarding the pace of the classroom, consistency in the implementation, level of facilitation of language, and immediacy of feedback required by Student.
During Dr. White’s observation of Student in January 2008, she remarked that in the pull-out session after Student was observed working on her own for a period of time, the teacher did not provide feedback or correct Student’s mistakes even though Student’s work product was replete with them. (PE-2; Testimony of Dr. White) Only one mistake was brought to Student’s attention. In her mainstream Language Arts class, Student volunteered to read out loud from an overhead and did “a nice job.” However, Dr. White remarked that the mainstream classes required students to use many language-based skills, which might place Student at a serious disadvantage and likely were “enormously stressful” for Student, as she would be required to rely on learning tools (reading, writing, retrieving information) that she had not yet adequately developed. Dr. White found the reading support services limited and not well integrated with the mainstream program. During her observation, much of the information in those classes was presented on an overhead projector. According to Dr. White, information delivered primarily in this manner would be hard for Student to take in because she would have to work very hard to process and copy it.
Dr. White testified that in her opinion, Student’s program in Pittsfield did not meet the recommendations of the McLean Hospital evaluation. While she praised Ms. Ingegni, Student’s fifth grade teacher, Dr. White indicated that said teacher was limited in what she could do in a classroom with twenty students and there was not enough built into the class to provide Student with the immediate feedback Student required when she made mistakes and not enough questions presented to facilitate learning. (PE-2; Testimony of Dr. White) Dr. White stated that teachers have to teach Student to learn how to learn and needed constant support on how to do this so that it “sinks in.” As a result, Dr. White opined that Student was not getting the individualized attention she required in order to make gains consistent with her potential. (PE-2). During cross-examination, Ms. Ingegni agreed that Student’s IEP lacked objectives for vocabulary development, spelling, study strategies, executive functioning, organizational skills and other skills which were a part of Dr. Tobin’s report. (Testimony of Ms. Ingegni).
While Student’s regular education fifth grade teachers and Dr. Tobin asserted that Student was making effective progress, other Pittsfield service providers and teachers painted a different picture of Student and the situation. Following the Team meeting in October 2007, and relying upon the Mc Lean’s Hospital report, Dr. Tobin’s report and teacher reports by Ms. Squires and Ms. Ingegni, Pittsfield presented Parents with an amendment to the IEP. It offered Student additional support with access to a tutor one hour per day three times per week and offered to have Student meet with Ms. Heath as part of regular education services. The tutorial services were intended to ease Student’s stress and anxiety regarding her ability to keep pace with her school work. (CBE-31; PFE-6). The narrative portion of the amendment promulgated by Pittsfield and prepared by Ms. Steel indicated that Parents should visit the psycholinguistic classroom, a substantially-separate program, at Crosby Elementary School as a possible placement for Student. (CBE-31; PFE-6). The Team further rejected reduction of Student’s time in the Resource Room. ( Id .). Parent later learned that Student was too old for the psycholinguistic classroom. (Testimony of Parent).
Central Berkshire and Pittsfield are correct that a weakness in Parents’ case is the fact that the independent evaluators did not speak with teachers and in district service providers before or after the evaluations. As a result, Central Berkshire argued that Parents’ experts lacked a whole picture of Student and her functioning in Pittsfield. Given the specific facts in this case, these arguments are not persuasive. Dr. White observed Student’s program in January 2008 and her testimony was candid and credible. She found that even though Ms. Ingegni impressed her as a good teacher, Student was not receiving and could not receive the level of intervention she required in her class. (Testimony of Ms. White).
Ms. Ingegni and Ms. McHugh seemed nervous and over-prepared for hearing, providing similar answers which lacked candor and made it difficult to assess how genuine their answers were. They could not provide much information as to what occurred outside their classrooms, and on occasion speculated, providing explanations which, while plausible, significantly differed from Parents’ and written statements in the record made by other Pittsfield staff. Their responses were measured and short as though they were so concerned about saying the “right thing” that spontaneity was lost. While I believed that they attempted to be truthful, they were not forthcoming, making it very difficult to rely on their responses and thus compromising their credibility.
Ms. Brunnell-Dunham, Ms. Steel and Ms. Squires did not testify and Pittsfield offered no explanation regarding the fact that they did not appear. These individuals had direct contact with Student and Parent and had raised concerns regarding Student’s difficulties and functioning. (PE-37). They raised questions regarding Student’s progress, difficulties and stress in school at the very time Parents were seeing escalation of Student’s school avoidance and difficulty with homework in the home. (PE-37; Testimony of Parent).
Pittsfield and Central Berkshire also argued that Student’s health complaints were likely the result of her Lyme disease and not school avoidance or stress. This however, is not supported by the evidence.
The record shows that during the 2006 – 2007 school year, Student visited the nurse’s office on forty five (45) occasions. (PFE-19). Her complaints included two sore throats, four small scrapes or cuts, two earaches, 13 nosebleeds, five stomach aches, three headaches, pain in her side on two occasions, pain in her arm, wrist, or shoulder on five occasions, a backache, indigestion on two occasions, a toothache, dizziness, pain in her toe, a cold, and treatment for Lyme disease. The nurse’s notes indicate that Student was sent home on three occasions. Student’s treatment for Lyme disease was first noted on 12/6/06. (PFE-19). According to Parent, Student felt comfortable with the school’s nurse and used her office as a “safe heaven” when feeling stressed. (Testimony of Parent)
During fifth grade, September 2007 – February 6, 2008, Student visited the nurse’s office on nineteen (20) occasions. She was seen on 9/20/07, 9/21/07, 9/24/08, 9/28/07, 10/1/07, 10/5/07, 12/4/07, 12/18/07, 1/3/07, 1/8/08, ?/?/0814 , 1/11/08, 1/15/08, 1/17/08, 1/25/08 (two visits), 1/28/08, 1/29/08, 2/4/08, and 2/6/08. She was given medication for Lyme disease and treated for a nosebleed, an alleged dog bite on her hand, swelling on her knee from a bicycle accident, a cut, a scrape, a sore throat, seven stomach aches, losing a tooth, a fast heartbeat during PE on two occasions, a cold, two headaches, dizziness, and ringing in her ears. The nurse also spoke with Student’s mother on two occasions. (PFE-20) On 1/15/08, Parent expressed concerns that Student was anxious about coming to school; later that day, Student came to the nurse with a stomach ache. According to nurse Porter, many students come to her office. She testified that she did not observe stress in Student even on the five or so occasion when she met her in the mornings. She agreed that she had a good relationship with Student, something easy to understand as nurse Porter comes across as a very caring, soft-spoken, gentle individual. Nurse Porter explained that nosebleeds could occur as a result of stress, pressure in the area, children picking their nose or an increase in blood pressure. (Testimony of Ms. Porter) Whether Student’s nosebleeds were spontaneous, the result of pressure in the area, or her picking her nose to the point of bleeding, these are also indications of how Student deals with stress. Also, Student’s report of rapid heart beating was concerning enough that her father was called and she was dismissed home early. (Testimony of Ms. Porter, Mother)
Pittsfield teachers and service providers denied knowledge of Student’s feeling stressed in the classroom. They also never connected Student’s requests to leave the classroom and go to the infirmary as academic avoidance or her feeling overwhelmed. These statements are especially troubling since staff met informally on a regular basis to discuss students including Student. Ms. Ingegni and Ms. McHugh had no knowledge of Student feeling stressed and did not recall Parent raising this concern at the Team meeting on October 1, 2007. Both were Student’s teachers in the regular education setting. They also were unaware of the suggestions made by Ms. Heath pursuant to the SAC Observation of April 2007, discussed at the Team of May 11, 2007. (Testimony of Ms. Heath, Ms. McHugh, Ms. Ingegni). Ms. Heath’s recommendations, which Parent endorsed, included identifying an area of competence for Student and allowing her to share it with others to boost her self-confidence, to provide her with recognition. Ms. Heath further suggested that if the concern that Student became anxious with academics lingered, it should be discussed with her and a system whereby she could discreetly communicate to her teacher that she needed to go to the nurse’s office due to illness or to academic stress should be devised. It is unclear why this information was not shared with the rest of Student’s fifth grade teachers. Interestingly, Ms. Heath’s specific description of Student’s attempt to avoid a task in the classroom or relieve academic stress was that Student required “teacher assistance because the academic task [was] difficult.” (CBE-25).
In the report prepared by Ms. Heath after her observation of Student on April 1 and 24, 2007, she noted that the classroom teacher stated that she was unable to tell whether Student’s illness was contributing to her not feeling well or if she did not feel well when stressed by the academic work. (CBE-25) While Ms. Heath observed no difficulties in math, Student’s Team supported a specific learning disability in reading and math as evidenced by her Special Education Eligibility/Initial and Reevaluation Determination flowchart. (CBE-27).
Ms. Ingegni’s, Ms. McHugh’s and to some extent Ms. Heath’s testimony is inconsistent with the IEP amendment promulgated by Pittsfield on October 2, 2007, and the tutor request form completed by Ms. Steel (Pittsfield’s Supervisor of Special Education) dated the same date, in which she wrote that Student, who was already receiving two periods per day of academic support, was still not making adequate progress and was experiencing a high level of anxiety.15 (PFE-6; CBE-31). In attendance at that meeting were: Lee Steel, Karen Senus, Administrator/LEA Rep. (CBE-59), Dr. Kevin Tobin, Karen Ingegni, Angel Squires and Parent. Neither Ms. Steel nor Ms. Squires was called to testify. If communication between the special education teacher and the regular education teacher was frequent and effective, and given that Ms. Ingegni was present during the meeting in October 2007, hers and Ms. McHugh’s lack of knowledge is troubling.
Student’s stress over academic demands may not have manifested through overt behaviors. Everyone agreed that she worked hard and attempted to blend in with the rest of her classmates. Student was described by everyone as a respectful, polite, cooperative, motivated child who is very eager to learn and please others. She is socially well-adjusted and friendly. Parent described her as a highly active, energetic child who is optimistic and possesses an extraverted attitude. (Testimony of Parent) From an interpersonal standpoint, Student saw herself as a likeable, socially well-adjusted individual who loved herself, felt she was smart and whom others liked. (PE-3) However, how Student saw herself does not negate the fact that she was experiencing anxiety over academic demands, serious enough to make herself physically ill.
Student is not a child who has ever displayed maladjustive behaviors. She does not challenge authority or disrespect adults, nor does she have attentional issues. She does not seek attention negatively, and in this regard does not stand out. (PE-37; CBE-8; PFE-4). Dr. White described her as a sensitive and emotionally intense child. She noted that because Student did not have any behavior problems and was eager to please, it was easy to overlook any potential stress she might be experiencing. (Testimony of Dr. White). Student is precisely the type of child who could get lost because she is not difficult to deal with.
None of Pittsfield’s personnel who noted Student’s stress and difficulties in the academic setting, namely Ms. Brunell-Dunham, the fourth grade teacher, Ms. Squires and Ms. Steel, Pittsfield’s Supervisor of Special Education, was called to testify to explain their statements and recommendations16 , including the Supervisor of Special Education’s recommendation that Parent visit the only language-based program close to Student’s age group in Pittsfield, the psycholinguistic classroom at Crosby Elementary School; a program later determined not to be age appropriate for Student. (CBE-31; PFE-6; CBE-36; Testimony of Parent). These Pittsfield staff recognized Student’s difficulties and attempted to address them. Their statements corroborate Parent’s testimony and position in this regard. Pittsfield’s assertion that Student’s stress if any, was caused by Parents’ decision to remove Student from Pittsfield is not persuasive.17 While the uncertainty of what was to come may have contributed to Student’s stress at some point after November 2007, it fails to explain the fact that Student visited the nurses office 45 times during the 2006 – 2007 school year and five more times by October 5, 2007, and that the great majority of these visits clearly had nothing to do with symptoms that can be associated with Lyme disease and are significantly more suggestive of academic/school avoidance consistent with the testimony of Dr. White, Dr. West, Parent and Ms. Brunell-Dunham. (PE-37). Moreover, Parent testified that Student’s psychosomatic symptoms were increasing in intensity as she had episodes involving vomiting. Dr. Tobin testified that Parent raised the issue of Student’s anxiety at the Team meeting in October 2007. As a result, Pittsfield offered tutorial services for one hour three times per week to alleviate Student’s stress and frustration over homework, and Ms. Heath met with Parent to discuss counseling in school as a regular education service. Ms. Heath’s testimony was indicative of her disbelief that Student was experiencing any stress in school. (Testimony of Ms. Heath). By the time Pittsfield informally offered the services of Ms. Heath, as one of the regular education services offered all students in Pittsfield, and the tutorial services, Parents felt misled, had lost faith and mistrusted Pittsfield. They were not seeking additional services but rather a language-based program for Student consistent with the recommendations of the McLean evaluation. (Testimony of Parent) The evidence shows that Pittsfield staff was divided in its view of what Student required at the time, with at least two individuals who had experience working with Student, Ms. Steel and Ms. Brunnell-Dunham, recommending one thing and Dr. Tobin, Ms. Heath and the fifth grade regular education teachers recommending another.
The evidence shows that Student was beginning to see herself as different from other age-like peers due to her disability and this was manifesting itself as school avoidance and psychosomatic illnesses, where she was making herself sick to the point of vomiting. Given the information available to Pittsfield, it should have taken this more seriously and not just dismissed it as minimal. Dr. West, who provided Student psychological support between November 2007 and March 2008, testified that it is important for disabled students to confront and deal with the fact that they are different and to understand and accept their disabilities rather than run away, as Student was doing in Pittsfield. This is an area that Pittsfield ought to have addressed more seriously. Dr. West testified that at the time she met with Student again in 2008, Student was not displaying or expressing any school anxiety. Mr. Drake also testified that she had not been absent or tardy at White Oak, nor was she attempting to leave class as she did in Pittsfield by visiting the nurse’s office.
Dr. Tobin minimized the usefulness of projective testing such as the Rorschach to understand Student’s psychological state. Dr. White however, explained that it was a
useful tool to access what was in a child’s mind by presenting abstract ambiguous images and allowing them to project their thoughts and feelings onto the images. She explained that “… if you ask [a child] a direct question about their emotional states, they will either avoid answering those questions or have difficulty answering those questions, because they may not be knowledgeable about how to talk about their own internal emotions.” Evaluators then look for themes that emerge from their responses. (Testimony of Dr. White). This was a helpful tool that added one more piece of information regarding Student’s psychological makeup, presenting her as an emotionally activated, over-stimulated child suggesting feelings of anxiety and a tendency to get disorganized when emotionally triggered.18 (PE-1; Testimony of Dr. White). According to Dr. White, when emotionally triggered, Student’s thinking becomes less coherent. During the evaluation, Student reported not liking school because “it was so hard” and one of the characters in her story was described as being exhausted from all of the homework.” ( Id. ) Student also stated that she did not like to feel ill but that illness was a relief because she got to miss school. Dr. West opined that the trigger for Student was “discomfort around her perception of what she was being asked to do in school.” According to her, Student’s openness to instruction will depend on her emotional state. (PE-3; Testimony of Dr. West) When anxious, she will shut down and become unavailable to learn. ( Id. ) She supported the recommendations by the McLean Hospital team.
In light of Student’s learning disability and increasing academic stress, Dr. White and the McLean Hospital evaluation recommended placement in a small group, language-based program where Student received all of her academics in a setting capable of providing her immediate feedback, and close monitoring, and where language-based instruction was embedded throughout the curriculum. This would minimize the organizational, processing and working memory demands on Student thereby significantly reducing the level of stress she experiences as a result of her disabilities. (PE-1; Testimony of Dr. White) Student indicated feeling more comfortable in the smaller resource room setting than in the larger classroom. (PE-3; Testimony of Dr. West).
Dr Tobin testified that he had a bias for the inclusion model unless catastrophic gaps were found; that is, a student functioned two to three years behind grade level. Otherwise, according to him, it was not appropriate to sacrifice the inclusion model. (Testimony of Dr. Tobin) Dr. Tobin is correct that the least restrictive environment requirement of the IDEA is biased in favor of public school settings that allow the greatest amount of exposure possible to typically developing peers. However, nothing in the IDEA requires that alternate placements can only be appropriately triggered by catastrophic performance, as characterized by Dr. Tobin. Rather, IDEA requires that each student’s needs and abilities be assessed individually.
There is no dispute that Student is a very social child who did well in her peer relationships. Parent stated that Student had a high level of energy and that she usually required play with at least three children consecutively, to get tired. (Testimony of Parent) Her social skills are not at all impacted by her disabilities. ( Id .) From a socialization standpoint, Student is not someone who requires exposure to typically developing students in the sense a child with difficulties in the social pragmatics area would. She adapts with ease to new environments, groups of children and adults, and is an active participant in all classroom settings. (Testimony of Dr. White, Ms. McHugh, Ms. Ingegni, Ms. Michalski).
In order to be reimbursed for unilateral placement of Student at White Oak, Parents must first show that Pittsfield’s program was inappropriate for Student. School Comm. of Burlington v. Dept. of Ed ., 471 U.S. 359, 369 (1985); Amherst-Pelham School Comm. v. Dept. of Ed ., 376 Mass 480, 482- 483 (1978). In looking at the totality of the circumstances in this case, and based on my credibility assessment of Pittsfield witnesses, Parents’ decision to remove Student to White Oak was warranted, given the information available to them at the time they decided to remove Student from Pittsfield. At that point Student was performing approximately two years behind her peers pursuant to McLean Hospital evaluation reports, was not receiving the type of interventions she required to address her language learning disabilities, was having difficulties with homework, and was exhibiting signs of stress and school/task avoidance which were escalating in the home, as well as in school, in intensity and frequency. Therefore, I find that Pittsfield’s program was not reasonably calculated to provide Student a FAPE.
In order to be reimbursed for unilateral placement of Student at White Oak, Parents must also show that the placement selected by them was appropriate for Student. The U.S. Supreme Court explained in Florence County School District 4 v. Carter , 510 U.S. 7 (1993) that when parents decide to place their disabled child in a private school, without first seeking the consent of the public school district responsible for the child, they “do so at their own risk.” In order for Parents to be eligible to receive reimbursement they must show that the placement was warranted, appropriate, and the district must have received proper notice pursuant to the IDEA.19
School Comm. of Burlington v. Dept. of Ed ., 471 U.S. 359, 369 (1985); Amherst-Pelham School Comm. v. Dept. of Ed ., 376 Mass 480, 482- 483 (1978).
I turn to the question of whether White Oak is appropriate thereby warranting reimbursement for Student’s placement.
Appropriateness of White Oak :
White Oak is a private approved special education school in Massachusetts which offers language-based instruction to school-age children. (Facts 49 through 52). Teachers trained at White Oak facilitate student oral responses aimed at remediating and improving word retrieval, vocabulary and syntax and sentence formulation throughout the day and across all settings. Strategies such as note-taking and paragraph-writing are embedded across the curriculum. Instruction is broken down into discrete, understandable elements, customized to meet the needs of students. It also offers significant remediation, implemented through a five-part rubric which allows immediate feedback and modeling of language, in contrast to the limitations of mainstream classrooms. (Testimony of Mr. Drake) Teachers meet daily to discuss students, are supervised by the Director of Education and must participate in bi-weekly teacher training and faculty professional development.
Ms. Michalski, Student’s science teacher at White Oak, explained that all of Student’s classes are small, structured and language-based. Teachers modulate their voices and modify the rate of speech to allow students to process information. (Testimony of Ms. Michalski). The pace of instruction and presentation of material is student-oriented. Tasks are broken down into steps and explicit instructions are provided for each task. Students are provided significant time to process language and share their answers. In addition to content information, teachers provide continual spiraling of information and building of language skills across all subjects. ( Id. )
Ms. Michalski opined that Student had many skill deficits when she arrived at White Oak. In her science class, Ms. Michalski works with Student on note-taking, writing, lab, research, time management and organizational skills. Student participates well and understands the vocabulary, language and structure of the aforementioned skills, as well as a general understanding of the subject-matter content. Ms. Michalski testified that by the end of the school year, Student was very familiar with the two- column note taking format and was able to set up her computer to take notes from text and lectures. Her homework was always well done, completed on time and she observed an increase in Student’s written output of complete sentences as well as in the development of multi-paragraph writing. Additionally, Ms. Michalski worked with Student to help her develop strategies to read and understand expository text, identify the main idea and support details by using a “highlighted” approach and discussion. Reading development is also incorporated throughout all content areas. Student also participates in a fifty-minute, one-on-one language arts tutorial with Dina Rossi. (Testimony of Ms. Michalski).
According to Mr. Drake and Ms. Michalski, Student adapted well and was expected to meet the goals and objectives delineated in her service plan by the end of the school year. Mr. Drake reported no absences, tardiness, complaints of physical illness, or school avoidance issues. Student was involved in only one incident of a disagreement with another student which was immediately handled by the staff. (Testimony of Mr. Drake, Ms. Michalski). In the classroom, Student receives the immediate feedback, with demonstration and modeling, recommended by Dr. Tobin and McLean Hospital. Experiential learning is incorporated throughout Student’s instruction at White Oak. Mr. Drake reviewed all of Dr. Tobin’s recommendations at hearing and credibly testified that they are being implemented at White Oak.
Based on the aforementioned evidence, I find that White Oak is an appropriate program for Student.
As the party challenging the IEP, Parents carried the burden of persuasion pursuant to Schaeffer v . Weast , 126 S.Ct. 528 (2005)20 . The evidence supports a finding that Parents have met that burden with respect to the program offered by Pittsfield for the 2007-2008 school year. Pittsfield failed to offer Student a FAPE during the 2007-2008 school year warranting Parents’ unilateral placement in White Oak in February 2008. Since White Oak is deemed to be an appropriate placement, Parents are entitled to receive reimbursement for said placement inclusive of transportation costs.
Student was parentally removed from Pittsfield, which, as a resident of Central Berkshire she attended under school choice. Central Berkshire was notified of Parents’ intention to unilaterally place Student at White Oak. Programmatic and financial responsibility for Student falls back onto Central Berkshire.21 Central Berkshire participated in the Team meeting of February 2008, and in that regard, supported Pittsfield’s IEP and placement and did not propose a placement of its own. Given my finding as to the inappropriateness of Pittsfield IEP, Central Berkshire thus bears retroactive financial responsibility for Student’s White Oak placement.
The record lacks evidence regarding the programs currently available at Central Berkshire and if any would be appropriate to meet Student’s needs. Since it would be premature to conclude that the district lacks a program that can afford Student a FAPE for the 2008-2009 school year, Parents’ request for an order requiring Central Berkshire to draft an IEP for White Oak for this year is premature. As such, Central Berkshire shall convene Student’s Team to assess her current functioning, needs and make program and placement recommendations consistent with its findings. The Team shall include the relevant members of the staff at White Oak.
Lastly, there was some disagreement between the Parties regarding whether Student’s Team convened within the ten-day limit permitted under federal and state regulations following Pittsfield receipt of Parents’ independent evaluation at McLean Hospital. According to Parents, Pittsfield received the report on September 10, 2007 but did not convene the meeting until October 1, 2007. While Parents are correct that Pittsfield failed to act consistent with the regulations, this transgression is de mimimis and not outcome-determinative.
ORDERS:
1. Central Berkshire shall convene a Team and propose an IEP and placement appropriate to meet Student’s needs and afford her a FAPE in the least restrictive environment.
2. Parents are entitled to reimbursement from Central Berkshire for the unilateral placement of Student at White Oak beginning in February 2008 and until such time as Central Berkshire reconvenes the Team and drafts an appropriate IEP for Student.
By the Hearing Officer,
___________________________________________
Rosa I. Figueroa
Dated: October 3, 2008
____________________________________________________________
I extend my appreciation to Stephanie Singer, summer intern, who assisted me in this decision.
1
Throughout this decision, the term “Parent” is used in reference to Mother and “Parents” in reference to both Mother and Father.
2
The date on the exhibit is unreadable.
3
A comparison of test scores in 2007 and 2005 are as follow:
2007 2005
Summary Scales Standard score / % ile Standard score / % ile
Verbal Comprehension: 93 32 89 23
Perceptual Reasoning: 100 50 121 92
Working Memory: 99 47 94 34
Processing Speed: 80 9 97 42
Full Scale: 91 27 101 53
4
20 USC 1400 et seq .
5
MGL c. 71B.
6
MGL c. 71B, ss. 1 (definition of FAPE), 2, 3.
7
E.g., 20 USC 1400(d)(1)(A) (purpose of the federal law is to ensure that children with disabilities have FAPE that “emphasizes special education and related services designed to meet their unique needs . . . .”); 20 USC 1401(29) (“special education” defined to mean “specially designed instruction . . . to meet the unique needs of a child with a disability . . .”); Honig v. DOE , 484 U.S. 305, 311 (1988) (FAPE must be tailored “to each child’s unique needs”).
8
Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 192 (1982) (goal of Congress in passing IDEA was to make access to education “meaningful”); Deal v. Hamilton County Board of Education, 104 LRP 59544 (6 th Cir. 2004); (“ IDEA requires an IEP to confer a ‘meaningful educational benefit’ gauged in relation to the potential of the child at issue”); G. by R.G. and A.G. v. Fort Bragg Dependent Schs , 40 IDELR 4 (4th Cir. 2003) (issue is whether the IEP was reasonably calculated to provide student meaningful educational benefit); Weixel v. Board of Education of the City of New York , 287 F.3d 138 (2 nd Cir. 2002) (placement must be “‘reasonably calculated’ to ensure that [student] received a meaningful educational benefit”); Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) (educational benefit must be “meaningful”); Ridgewood Board of Education v. NE for ME , 172 F.3d 238 (3 rd Cir. 1999) (IDEA requires IEP to provide “significant learning” and confer “meaningful benefit”).
9
Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993) (program must be “reasonably calculated to provide ‘effective results’ and ‘demonstrable improvement’ in the various ‘educational and personal skills identified as special needs’”); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990) (“Congress indubitably desired ‘effective results’ and ‘demonstrable improvement’ for the Act’s beneficiaries”); Burlington v. Department of Education , 736 F.2d 773, 788 (1 st Cir. 1984) (“objective of the federal floor, then, is the achievement of effective results–demonstrable improvement in the educational and personal skills identified as special needs–as a consequence of implementing the proposed IEP”); 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) (“ Progress effectively in the general education program shall mean to make documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to chronological age and developmental expectations, the individual educational potential of the child, and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district.”).
10
See generally In re: Arlington , 37 IDELR 119, 8 MSER 187, 193-195 (SEA MA 2002) (collecting cases and other authorities).
11
MGL c. 69, s. 1 (“paramount goal of the commonwealth to provide a public education system of sufficient quality to extend to all children the opportunity to reach their full potential… ”); MGL c. 71B, s. 1 (“special education” defined to mean “…educational programs and assignments . . . designed to develop the educational potential of children with disabilities . . . .”); 603 CMR 28.01(3) (identifying the purpose of the state special education regulations as “to ensure that eligible Massachusetts students receive special education services designed to develop the student’s individual educational potential…”). See also Mass. Department of Education’s Administrative Advisory SPED 2002-1: Guidance on the change in special education standard of service from “maximum possible development” to “free appropriate public education” (“FAPE”), effective January 1, 2002, 7 MSER Quarterly Reports 1 (2001) (appearing at www.doe.mass.edu/sped) (Massachusetts Education Reform Act “underscores the Commonwealth’s commitment to assist all students to reach their full educational potential”).
12
Hendrick Hudson Dist. Bd. of Educ. v. Rowley , 458 U.S. 176, 199, 202 ( court declined to set out a bright-line rule for what satisfies a FAPE, noting that children have different abilities and are therefore capable of different achievements; court adopted an approach that takes into account the potential of the disabled student ); Deal v. Hamilton County Board of Education, 104 LRP 59544 (6 th Cir. 2004); (“ IDEA requires an IEP to confer a ‘meaningful educational benefit’ gauged in relation to the potential of the child at issue”); HW and JW v. Highland Park Board of Education , 104 LRP 40799 (3 rd Cir. 2004) (“benefit must be gauged in relation to the child’s potential”); Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) (progress should be measured with respect to the individual student, not with respect to others); T.R. ex rel. N.R. v. Kingwood Twp. Bd. of Educ., 205 F.3d 572, 578 (3d Cir. 2000) (appropriate education assessed in light of “individual needs and potential”); Ridgewood Board of Education v. NE , 172 F.3d 238 (3 rd Cir. 1999) (“quantum of educational benefit necessary to satisfy IDEA . . .requires a court to consider the potential of the particular disabled student”); Mrs. B. v. Milford Board of Ed. , 103 F.3d 1114, 1122 (2d Cir. 1997) (“child’s academic progress must be viewed in light of the limitations imposed by the child’s disability”); MC v. Central Regional School District , 81 F.3d 389 (3 rd Cir. 1996), cert. denied 519 US 866 (1996) (child’s untapped potential was appropriate basis for residential placement); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990) (“academic potential is one factor to be considered”); Kevin T. v. Elmhurst , 36 IDELR 153 (N.D. Ill. 2002) (“ Court must assess [student’s] intellectual potential, given his disability, and then determine the academic progress [student] made under the IEPs designed and implemented by the District ”).
13
E.g. Lt. T.B. ex re.l N.B. v. Warwick Sch. Com ., 361 F. 3d 80, 83 (1 st Cir. 2004)(“IDEA does not require a public school to provide what is best for a special needs child, only that it provide an IEP that is ‘reasonably calculated’ to provide an ‘appropriate’ education as defined in federal and state law.”)
14
Unreadable date.
15
Ms. Ingegni testified that she never saw this document prior to hearing.
16
In its closing brief, Central Berkshire suggested that the reason for not calling Ms. Squires to testify was that neither her qualifications nor the quality of her services were in dispute; and Ms. Brunell-Dunham because she was no longer Student’s teacher. No explanation was offered regarding Ms. Steel. These explanations are not persuasive in light of the totality of the evidence.
17
According to Ms. Ingegni, on or about November 2007 Student informed her classmates that she would be leaving Pittsfield; classmates brought her goodbye gifts. (Testimony of Ms. Ingegni).
18
Dr. White also testified that Student was vulnerable to the development of bipolar disorder consistent with psychiatric family history. (Testimony of Dr. White).
19
I note that the notice requirement of IDEA has been met by Parents.
20
Schaeffer v . Weast , 126 S.Ct. 528 (2005) places the burden of proof in an administrative hearing on the party seeking relief.
21
See 603 CMR 28.10(6)(b), “for schools attended pursuant to M.G.L. c. 76, §12B (school choice), such schools may bill and receive payment from the school district where the student resides for he costs of out-of-district placements made by the program school. The program school shall invite the school district where the student resides to participate as a member of the student’s Team and shall provide notice of the Team meeting at least five school days prior to the meeting, provided that such participation shall not limit the student’s right to a timely evaluation and placement in accordance with 603 CMR 28.00.”