COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Sudbury Public Schools
BSEA # 10-0704
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 c. 71B), the state Administrative Procedure Act (MGL c. 30A), and the regulations promulgated under these statutes.
A hearing was held in Malden, MA on February 10, 2010 and, by joint request of the parties, in Sudbury, MA on February 12 and March 9, 2010 before William Crane, Hearing Officer. Those present for all or part of the proceedings were:
Student’s Mother
Family Friend
Gerri Shubow Private Audiologist
Anita Pliner Private Neuropsychologist
Ann Helmus (by phone) Private Neuropsychologist
Erika Gold Language Teacher and Advisor, The Carroll School
Anne Lowell Language Tutor, The Carroll School
Terry Gregory Director of Education, The Carroll School
Larry Brown Middle School Head, The Carroll School
Barbara Ryan Social Studies Teacher, Sudbury Public Schools
Beth Deneen Math and Science Teacher, Sudbury Public Schools
Wendy Gilman Special Education Teacher, Sudbury Public Schools
Janice Milley Special Education Teacher Assistant, Sudbury Public Schools
Renee Kramer Speech-Language Pathologist, Sudbury Public Schools
Ellen Donahue Speech-Language Pathologist, Sudbury Public Schools
Melissa Angland School Psychologist, Sudbury Public Schools
Luan Dean Out-of-District Coordinator, Sudbury Public Schools
Kelly Diette Team Chairperson and School Psychologist, Sudbury PS
Deborah Dixson Administrator of Special Education, Sudbury Public Schools
Regina Williams Tate Attorney for Sudbury Public Schools
Brenda Genisi Court Reporter
Jessica De Santis Court Reporter
The official record of the hearing consists of documents submitted by Mother (hereinafter, Parent) and marked as exhibits P-1 through P-73, except that the legal article that is part of exhibit P-69 and all of exhibit P-72 (the first page of two BSEA decisions) were excluded; documents submitted by the Sudbury Public Schools (hereinafter, Sudbury) and marked as exhibits S-1 through S-60; and approximately two and one-half days of recorded oral testimony and argument. As agreed by the parties, written closing arguments were due on March 26, 2010, and the record closed on that date.
ISSUES
The issues to be decided in this case are the following:
1. It is not disputed that Sudbury did not provide Student with an individualized education program (hereinafter, IEP) for Student’s 5 th grade (2008-2009 school year). Was Sudbury responsible for providing an IEP for 5 th grade?
2. If so, did Parent’s unilateral placement at The Carroll School provide Student with a free appropriate public education in the least restrictive environment?
3. If so, is Parent entitled to reimbursement for part or all of her out-of-pocket expenses for The Carroll School for 5 th grade?
4. Is the IEP most recently proposed by Sudbury for 6 th grade (2009-2010 school year) reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment?
5. If not, did Parent’s unilateral placement at The Carroll School satisfy this standard?
6. If so, is Parent entitled to reimbursement for part or all of her out-of-pocket expenses for The Carroll School for 6 th grade?1
EDUCATIONAL PROFILE AND HISTORY
Student’s Educational Profile
Student, who lives with his Parents in Sudbury, MA, attends the 6 th grade at The Carroll School (hereinafter, Carroll School or Carroll) in Lincoln, MA. Student has attended Carroll since 3 rd grade, entirely at private expense. Sudbury has proposed that Student attend its Language Learning Disabilities (hereinafter LLD) program within which he would be in small group, pull-out classes for English language arts and math as well as remedial educational services, and he would be placed within general education for science and social studies, where he would receive support services. Exhibits S-1, S-59.2
Student, who has average intelligence, is curious and interested in learning. He also has language-based deficits in both spoken and written language skills, with the result that he has difficulty expressing his ideas and conveying his knowledge verbally and in writing. More specifically, Student’s deficits manifest themselves in difficulties with math calculations, spelling, reading fluency, written language, and verbal communication. Student has relative strengths in reading comprehension and conceptual understanding of math. Testimony of Diette, Helmus, Pliner; exhibits S-4, S-11, P-61.
Student’s academic skills are significantly below average. In addition, Student has emotional deficits, which are secondary to his learning deficits, so that when he struggles in the classroom (for example, when he does not understand what is happening), he has a tendency to shut down or become oppositional. Student has also struggled with self-confidence. He frequently has conflicts with adults who are in positions of authority, with the result that he has a tendency to refuse help from an adult if he is being singled out for assistance at school. Testimony of Diette, Gold, Gregory, Brown, Helmus, Pliner; exhibits S-7, S-11.
Student also has auditory processing deficits, which include difficulty with mishearing, background noise, integration, rate of processing, temporal processing (for example, pitch differentiation, thus making it difficult to hear where there is emphasis in speech). He is at risk of inaccurately perceiving auditory information, particularly when information is presented in a noisy background, involves multiple parts, is presented quickly or contains unfamiliar language concepts. Student’s auditory deficits make it difficult for him to learn in a relatively large classroom (e.g., 20 or more students). Testimony of Shubow; exhibits S-3, S-18.
2004-2005 school year (1 st grade)
During 2004-2005 school year, Student was repeating the 1 st grade at a parochial school (St. Paul X, located in West Harwich) at private expense . In May and June 2005, there was a neuropsychological evaluation of Student by Joseph Moldover, PhD (the evaluation was also reviewed and signed by Ann Helmus, PhD). The evaluation was conducted in order to obtain a better understanding of Student’s learning needs and to make educational recommendations. The evaluation found that Student had a significant learning disability and was “at high risk from both an academic and emotional perspective.” Exhibit S-30 (page 16).
In August of 2005, Student underwent a multidisciplinary evaluation at Franciscan Hospital for Children. The evaluation included neurology, audiology, speech-language, occupational therapy and physical therapy assessments. Exhibits S-26, S-27, S-28, S-29.
Student and Parents lived in South Yarmouth, MA, during this school year. Testimony of Parent.
2005-2006 school year (2 nd grade)
In October 2005, South Yarmouth Public Schools reviewed the above-referenced multidisciplinary evaluation and neuropsychological evaluation, determined Student to be eligible to receive special education services, and proposed an initial IEP for Student for the period 10/4/05 to 10/04/06. (In 2003 and 2004, Dennis Yarmouth had determined Student to be ineligible for special education services.) The IEP called for 40 minutes of specialized instruction each day within the regular education classroom for each of the following two areas: language arts and math. In addition, the IEP proposed 40 minutes, twice per week of speech-language services. No pull-out services were proposed. The IEP does not indicate that it was accepted or rejected by Parents. Exhibit S-31.
In May 2006, a neuropsychological re-evaluation was conducted by Dr. Moldover at Parents’ request in order to monitor Student’s progress since Dr. Moldover’s prior neuropsychological assessment and to make educational recommendations. At the time of this re-evaluation, Student was continuing to attend St Paul X, with support from a private tutor and in-class aide. The evaluation continued to support the prior diagnosis of Language Based Learning Disability. Exhibit S-24 (page 5).
The neuropsychological report stated, in part, that Dr. Moldover “strongly support[s] [Parents’] decision to place [Student] in a self-contained, language-based program for the 3 rd grade. In the absence of this level of intensive support, I would view him as a child who is at high risk not only for lack of academic progress but also for growing emotional distress.… [Student’s] academic instruction should take place in a setting in which all academic subjects are taught by special education teachers implementing a coordinated, consistent educational program designed to meet [Student’s] cognitive profile. [Student] should be in a classroom with six to eight other children matched to his level of development ….” Exhibit S-24 (page 5).
2006-2007 school year (3 rd grade)
Parent moved from South Yarmouth to Sudbury, MA and placed her son at Carroll School in Lincoln, MA as a 3 rd grader for the 2006-2007 school year. Testimony of Parent.
After moving to Sudbury and placing Student at Carroll, Parent met with the Sudbury out-of-district coordinator (Luan Dean) on November 3, 2006. Parent explained to Ms. Dean that her son had been placed at Carroll. Parent testified that she met with Ms. Dean for the purpose of seeking funding for her son’s placement at Carroll. But, she also testified that another purpose in meeting with Ms. Dean was her wanting to determine whether Sudbury had an appropriate public schools program for her son in 3 rd grade. Ms. Dean, on the other hand, testified that during the meeting, Parent made clear that she was not seeking public school services. Apparently, the November 3, 2006 meeting was the first time that Sudbury learned that Student was residing in Sudbury and may be in need of special education and related services. Testimony of Parent, Dean.
During the November 3, 2006 meeting at Sudbury, Parent gave to Ms. Dean the IEP developed by Dennis-Yarmouth for Student for the period 10/4/05 to 10/04/06 (discussed above), which Parent said she had not accepted. Parent also gave Ms. Dean copies of other evaluations, including the above-referenced May 2006 neuropsychological evaluation by Dr. Moldover and the above-referenced evaluations by Franciscan Children’s Hospital. During the meeting, Parent also requested that Sudbury evaluate her son, with Parent making it clear to Ms. Dean that Parent would like Sudbury to fund her son’s placement at Carroll. In response to Parent’s request for evaluation, Sudbury proposed and Parent agreed to a number of further evaluations of Student, as described below. The form used by Sudbury for this purpose indicated in multiple places that Parent was consenting to a “reevaluation” (rather than an initial evaluation) of Student; and in her testimony, Ms. Dean described this process as a “reevaluation” of Student. Testimony of Dean; exhibit S-23.
In December 2006, a Sudbury occupational therapist (Catherine McNeil, MS, OTR/L) conducted an occupational therapy evaluation that recommended that occupational therapy serviced were not indicated at that time. The evaluation’s recommendations included the following statement: “Small group learning experiences are recommended whenever possible.” Exhibit S-22.
On December 22, 2006, a Sudbury speech-language pathologist (Mary Kate Gentile, MS, CCC-SLP) conducted a speech-language evaluation that made no recommendations regarding the need for speech-language services. Exhibit S-21.
On January 8, 2007, Sudbury conducted a home assessment. Exhibit S-19.
In January 2007, Sudbury staff persons (Alan Catrina and Mary Ellen Coyne-Gordon) conducted an educational assessment that concluded that Student continued to need systematic reading instruction to address weaknesses in basic reading and encoding skills. Testimony of Dean; exhibit S-20.
On January 27, 2007, Gerri Shubow, MS, CCC-A, conducted an audiological evaluation of Student at Parent’s request. Ms. Shubow concluded that Student had auditory processing deficits in the areas of auditory decoding and mishearing, auditory integration, rate of processing, and temporal patterning. Exhibit S-18.
On January 31, 2007, a school psychologist (Bette Rothman, EdD) conducted an interview of Student at the request of Parent and Luan Dean. The report of interview concluded, in part, as follows:
This interviewer concurs with Dr. Moldover’s concern that [Student’s] academic struggles have affected his self-confidence and sense of competence. [Student] is a likeable and sensitive child whose feelings of vulnerability are exacerbated by worries about his mother’s health and what appears to be some discomfort managing affect in an adaptive manner. In addition, the weaknesses in organization, meta-cognitive skills, and flexible thinking identified by Dr. Moldover may impact social functioning as well as academic performance.
Ms. Rothman did not conduct standardized testing because of the proximity of Dr. Helmus’ neuropsychological evaluation in May 2006. Testimony of Dean; exhibit S-17.
On March 5, 2007, the Sudbury IEP Team met, found Student eligible for special education based upon a specific learning disability, and proposed an IEP for Student for the period 3/19/07 to 3/18/08. The proposed IEP would provide Student with daily special education instruction for one hour per week to address decoding; an hour per day of special education instruction to address math; 45 minutes, three times per week of specialized instruction in written expression; and a half hour per week of social/emotional services with a counselor. In addition, he would receive 45 minutes per day of support from a special education teacher or assistant in regular education classes. Testimony of Dean; exhibits S-2, S-14, S-15, S-16.
Ms. Dean (who was the Team chairperson) made written notes from the meeting. These notes and Ms. Dean’s testimony indicated that these special education services would be provided within Sudbury’s language-based program, which would include substantially-separate classes for math, reading and English language arts, and regular education classes, with special education support, for social studies and science, all as described within Sudbury’s description of its LLD program. The Team meeting notes prepared by Ms. Dean and Ms. Dean’s testimony further reflect that Parent was unwilling to move her son from the Carroll School into Sudbury’s proposed placement. Ms. Dean’s meeting notes state that “Sudbury will not support Carroll School for the remainder of the 06-07 year [emphasis in original].” Testimony of Dean; exhibits S-2, S-14, S-15, S-16.
Ms. Dean testified that Student’s educational profile (including his intellectual capability and many strengths) would have made him a “prime candidate” to take advantage of the program, including its exposure to regular education peers and classes. She also noted that in March 2007, there were students in the LLD program with a profile similar to Student’s (including one student with a central auditory processing deficit). In Ms. Dean’s opinion, the LLD program would have been an appropriate placement for Student for the period of the IEP from 3/19/07 to 3/18/08. Testimony of Dean.
Parent was offered the opportunity to observe the LLD program. Parent did not observe the program herself, but she had her advocate (Elaine Lord) observe the program in May 2007. Testimony of Dean.
Parent did not respond to the IEP for the period 3/19/07 to 3/18/08, and therefore did not explicitly accept or reject it. Parent testified that she did not respond to the IEP because she chose to have her son stay at Carroll, rather than attend Sudbury Public Schools. In her testimony, Parent made clear that she never intended that her son not be eligible for special education services at Sudbury. She explained that she has always sought an appropriate IEP from Sudbury and that, at any time, she would accept an IEP that she considered appropriate for her son. Testimony of Parent, Dean.
Parent testified that, from her perspective, an appropriate IEP would propose a cohesive, scientifically-based program with language-based instruction taught consistently throughout the curriculum, that her son would need to be placed with students with an educational profile similar to his, and that this placement could be within the Sudbury Public Schools (rather than at Carroll or another private placement). She testified that if Sudbury had proposed such a program for 3 rd grade (or for any subsequent grade), she would have accepted the IEP and would have had her son attend such a program. Testimony of Parent.
2007-2008 school year (4 th grade)
Sudbury’s out-of-district coordinator (Ms. Dean) had no communication with Parents during the 2007-2008 school year.
Sudbury’s proposed IEP that began during 3 rd grade (discussed above) continued through March 18, 2008 (the spring of 4 th grade) when it expired. At the expiration of the time period for this IEP, Sudbury did not propose another IEP for the remainder of 4 th grade. No further evaluations were proposed or conducted by Sudbury during this school year. Student continued to attend Carroll School at private expense for 4 th grade.
2008-2009 school year (5 th grade)
No IEP was proposed by Sudbury for any part of 5 th grade (the 2008-2009 school year).
Parents’ next communication with Sudbury was a letter of September 22, 2008, in which Parent requested that Sudbury evaluate Student regarding math because she was concerned about her son’s math abilities. Parent met with Ms. Dean and explained that her son had had a difficult 4 th grade year at Carroll because his teacher was not a good match for him, and that she was also concerned about his progress in math. In response to Parent’s request and by notice dated September 29, 2008, Sudbury proposed a math assessment, educational assessments, and an observation. In several places, Sudbury’s forms for this purpose characterize this as Sudbury’s proposing a “reevaluation” (as compared to an initial evaluation) of Student regarding math. Carroll School agreed to conduct a math evaluation, and therefore Parent changed her mind and did not sign the consent form for Sudbury to conduct evaluations. Testimony of Parent, Dean; exhibit S-13.
In November 2008, Carroll School conducted a math evaluation of Student. The evaluation found that Student’s percentile rank in various areas was as follows:
Basic concepts – 21
Operations – 9
Applications – 23
Total test composite – 14
Exhibit S-12.
In December 2008 and January 2009, Ann Helmus, PhD, and Jennifer Green, PhD, conducted a neuropsychological re-evaluation of Student at Parent’s request in order to monitor Student’s progress and obtain updated educational recommendations. The evaluation found that Student continued to have a language-based learning disability that manifested in deficits in both spoken and written language skills. The report explained, in part, as follows:
“Overall, [Student] is a bright boy who is curious and interested in learning; however, his academic progress is significantly obstructed by a Language Based Learning Disability. Although [Student] is making cognitive and academic progress, his skills continue to be significantly below grade level.… In addition to academic needs related to his learning disability, [Student’s] temperament and challenges with authority figures make selection of a school environment particularly critical to his success.”
“We strongly recommend [Student’s] continued placement at The Carroll School. At this time, he would not be able to access grade level curriculum and make effective progress in a regular education class because of his learning disability and weak academic skills. Furthermore, he requires the intensity of the program at The Carroll School in order to learn how to compensate for his disability.”
Exhibit S-11 (page 10)
Parent provided Sudbury with the above-described neuropsychological re-evaluation, which Sudbury received on April 22, 2009. Within approximately ten days of receiving this evaluation, Ms. Dean and Ms. Diette met with Parent. As a result of meeting with Parent and Parent’s request for her son to be further evaluated by Sudbury, Sudbury proposed, by memo dated May 4, 2009, that it conduct a number of evaluations of Student and sought Parent’s consent for this purpose. Parent consented on May 4, 2009, and the evaluations occurred (as described below) near the end of Student’s 5 th grade year. The forms used by Sudbury and Ms. Dean’s testimony indicated that Sudbury intended this to be an “initial evaluation” of Student. Ms. Dean explained that this was considered to be an initial evaluation (as compared to a reevaluation) because Parent had never accepted or rejected Sudbury’s earlier IEP. Testimony of Dean; exhibit S-10.
Ms. Diette conducted a psychological evaluation in May and June 2009 and prepared a psychological report. Her evaluation consisted of a record review, Behavior Assessment System for Children 2 nd Edition Self-Report, Columbus Sentence Completion for Children, Student interview, and an observation of Student at the Carroll School. The summary and recommendations in the report included the need for Student to be placed in a language-based educational program that focuses on decoding/fluency/encoding, active reading comprehension strategies and a structured/systematic writing program. Ms. Diette also recommended that Student should learn “who he is as a learner” with respect to his strengths and weaknesses. Finally, it was recommended that Student meet with school-based counseling personnel as well as receive support from a school psychologist or counselor. Exhibit S-4.
In June 2009, Debbi Levesque conducted an academic achievement assessment utilizing the Woodcock Johnson III Tests of Achievement, Test of Written Language-3, and the Qualitative Reading Inventory-4. Student performed best when tasks were controlled and did not contain “a heavy language component.” The report recommended direct, specialized instruction in reading, writing, and math. Exhibit S-7.
In June 2009, Ellen Donahue, MS, CCC/SLP conducted a speech-language evaluation which concluded that no speech-language services were recommended at that time. Ms. Donahue did not recommend direct speech-language instruction because she found that Student’s receptive and expressive language skills were within the average range. Ms. Donahue testified that this was consistent with the results of previous speech-language evaluations that she had reviewed as part of her assessment. Testimony of Donahue; exhibit S-8.
In June 2009, Catherine McNeil conducted an occupational therapy consultation which concluded that occupational therapy services were not indicated at that time. Exhibit S-9.
On June 15, 2009 near the end of the school year, Dr. Helmus observed Sudbury’s 5 th grade Language Learning Differences Program (LLD program). (Sudbury’s LLD program, for 6 th grade, was soon thereafter proposed for Student. See discussion below.) For purposes of the observation, Dr. Helmus was present during English language arts and math classes and spoke briefly with Ms. Diette about the program. Dr. Helmus concluded that Sudbury’s “proposed educational program would not meet [Student’s] needs effectively, largely because of the inclusion component of the program” in social studies and science where Student would be supported in regular education classes. Dr. Helmus further opined that Student’s “learning disability and associated weak academic skills will make it extremely difficult for him to access the curriculum and make effective progress.” Exhibit S-6.
2009-2010 school year (6 th grade)
Sudbury convened an IEP Team meeting on June 18, 2009, which Sudbury considered to be an “initial evaluation meeting”. The above-described Sudbury evaluations were reviewed by the IEP Team, and Student was found to be eligible to receive special education services. The IEP developed as a result of this meeting covered 6 th grade from 7/1/09 to 6/17/10. Testimony of Dean; exhibit S-1.
Sudbury members of IEP Team proposed that Student be placed within the Sudbury LLD program at the Curtis Middle School. The IEP and placement would provide Student with small group, pull-out classes for English language arts and math. He would receive direct, specialized instruction in decoding, comprehension, written language, organizational skills, and math. Within the proposed IEP, this is reflected in daily special education instruction for 40 minutes in each of the following four areas: decoding, skills and strategies, English language arts, and math. He would also be placed within general education classes for science and social studies, where he would receive special education support services from the special education teacher or teaching assistant.3 Within the proposed IEP, the support services are reflected in 40 minutes, twice daily of support from a special education teacher or assistant in social studies and science. The IEP also called for extended year services because of a history of significant regression over the summer. Within the proposed IEP, this is reflected in one hour, three times per week from 7/7/09 to 8/6/09. Testimony of Dean; exhibit S-1.
Sudbury’s LLD program is for students for whom language is a primary impediment to learning. The students in this program have language disabilities that prevent them from accessing the regular curriculum without significant changes in the pace and design with which the curriculum is delivered. Most students in this program have low-average to average intelligence; they do not have behavior difficulties. Currently, there are 11 students in the LLP program, with nine students participating in the LLD English language arts class (Student would make the tenth student) and six students participating in the LLD math class (Student would make the seventh student). Testimony of Dean, Gilman, Milley; exhibit S-2.
Each LLD class is headed by a certified special education teacher who works with a teaching assistant. The class is supported by a speech-language pathologist for a minimum of three periods per week. The speech-language pathologist provides group lessons and individual therapies as needed, and she co-teaches a writing class. There is a significant amount of coordination and communication between the special education teacher and teacher assistant, as well as between the special education staff and regular education teachers, and the special education staff teach “carry over” skills that can be applied within the regular education classroom. The LLD program also receives outside consultation from a reading specialist (Joan Axelrod). Testimony of Dean, Gilman, Milley, Donahue; exhibit S-2.
The current 6 th grade special education teacher (Ms. Gilman) and special education teacher assistant (Ms. Milley) testified as to some of the details of the LLD program, including some of the specific programs that are utilized to teach students with language-based learning disabilities—for example, Fundations, EmPOWER, Wilson reading program, Brain Frames, Read Naturally, Great Leaps, as well as some of the specific instruction. They also explained the “skills and strategies” block when specific skills on students’ IEPs, such as encoding, decoding and fluency, are explicitly taught . They also discussed the Get Organized (“GO”) block when students are checked to make certain that they have their homework assignments and materials necessary to complete their homework. Testimony of Gilman, Milley.
The Sudbury special education teacher, teacher assistant, and speech-language therapist for the 6 th grade LLD program, as well as Sudbury’s Special Education Administrator all testified that, in their opinion based on their understanding of Student, his educational needs and the LLD program, Student would be appropriately placed within this program. Testimony of Dixson, Gilman, Milley, Donahue.
Although Ms. Dean does not work with the middle school LLD program for 6 th grade, she is familiar with it because of its similarity to the LLD program for 4 th and 5 th grades. She opined that this program would be appropriate for Student for 6 th grade.
On June 20, 2009, Ms. Shubow conducted a second audiological evaluation of Student at Parent’s request. In her report, Ms. Shubow stated that Student had an auditory processing disorder which was characterized by difficulties with decoding and mishearing, auditory integration, and rate and temporal processing. She explained further that Student “is at risk of inaccurately perceiving auditory information. This is particularly true when information is presented in a noisy background, involves multiple parts, is presented quickly or contains unfamiliar language concepts.” She also emphasized that “ [t]he mishearing would affect all academic learning in the classroom and social communication situations, particularly in larger classrooms and noisy settings .… The mishearing difficulty should not be underestimated and can interfere greatly in a classroom setting .” Exhibit S-3 (bold in original).
On July 10, 2009, Parent rejected the IEP and placement and wrote, as part of her rejection, as follows: “We are looking for full reimbursement for [Student’s] incoming sixth grade placement at the Carroll School. I hope we can come to an agreement so that this does not have to cost the town of Sudbury, or ourselves of [sic] further legal involvement or fees.” Exhibit S-1. It is not disputed that Sudbury received Parent’s rejection in a timely manner. Sudbury’s written closing argument at 12.
On September 8, 2009, Ms. Diette wrote Parent stating that Sudbury would like to reconvene the IEP Team to review Ms. Shubow’s June 2009 assessment. Exhibit S-57.
Parent attended the IEP Team meeting, which occurred on September 10, 2009. As a result of the meeting, a new goal was added to the IEP regarding decoding and encoding, and a half hour, monthly consult with the speech-language pathologist was included. Also, added to the IEP’s narrative description of the proposed program (marked as page 24 of 24 of the IEP) is a statement that Student would meet “at least weekly with the school counselor to discuss frustrations with learning and transitions” and the narrative further stated that this can be increased if needed. This service does not appear within the service delivery grid of the IEP.
Parent rejected this IEP on October 30, 2009. Testimony of Parent, Gilman, Angland; exhibits S-7, S-58, S-59.
On November 20, 2009, Anita Pliner, PhD, JD, observed the LLD program that Student would have attended pursuant to Sudbury’s proposed IEP for 6 th grade. Dr. Pliner wrote a report of her observations, which report was not provided to Sudbury until documents were exchanged shortly before the beginning of the evidentiary hearing in the instant dispute. In her testimony and written report, Dr. Pliner concluded that the LLD program was not appropriate for Student, principally because of the inclusion classes in science and social studies. Testimony of Parent; exhibit P-60.
On January 8, 2010, Dr. Pliner conducted a written language evaluation of Student at Parent’s request. In her testimony and her evaluation report, Dr. Pliner concluded that Student demonstrated “major challenges in his written expression skills.” She opined that he required a great deal of structure, cuing and re-direction so that he could learn and use strategies that he was being taught. She explained that the smaller student-teacher ratio and the smaller the classroom, the more likely that he would receive more of what he needs. Dr. Pliner’s evaluation report was not provided to Sudbury until documents were exchanged shortly before the beginning of the evidentiary hearing in the instant dispute. Testimony of Pliner, Parent; exhibit P-61.
DISCUSSION
Legal Standards
It is not disputed that Student is an individual with a disability, falling within the purview of the federal Individuals with Disabilities Education Act (IDEA)4 and the Massachusetts special education statute.5 The IDEA was enacted “to ensure that all children with disabilities have available to them a free appropriate public education [FAPE] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.”6 FAPE must be provided in the least restrictive environment.7
FAPE is defined by the IDEA to include state educational standards, which may exceed the federal floor .8 The Massachusetts educational standards are found within state statute and state education regulations and include a FAPE requirement.9
FAPE does not require Sudbury to provide special education and related services that will maximize Student’s educational potential.10 Similarly, the educational services need not be “the only appropriate choice, or the choice of certain selected experts, or the child’s parents’ first choice, or even the best choice.”11
The Supreme Court has explained that for purposes of providing FAPE under the IDEA, “Congress sought primarily to make public education available to handicapped children and to make such access meaningful.”12 As explained in more detail below, this overarching principle of “meaningful” access to public education may be understood, more specifically, as requiring a school district to develop an individualized education program or IEP that allows the student the opportunity to make meaningful and effective progress commensurate with his educational potential.
Student’s right to FAPE, including compliance with both state and federal standards, is assured through the development and implementation of the individualized education program or IEP.13 Each IEP must be “custom tailored to address the handicapped child’s unique needs in a way reasonably calculated to enable the child to receive educational benefits.”14
An IEP must be developed which is “reasonably calculated to enable the child to receive educational benefits.”15 And, “meaningful progress … is the hallmark of educational benefit under the [federal] statute.”16 The IDEA further requires that special education and related services be designed to result in progress that is “effective”.17
Massachusetts special education regulations similarly provide that specially designed instruction and related services described within the IEP must be sufficient “to enable the student to progress effectively in the content areas of the general curriculum.”18 And, Sudbury’s proposed IEPs for Student are framed in terms of his receiving specially designed instruction and accommodations “necessary for the student to make effective progress.” Exhibits S-1, S-14, S-59. Massachusetts also requires that the special education services be designed to develop a student’s educational potential.19
The Supreme Court has further clarified that the “determination of when handicapped children are receiving sufficient educational benefits to satisfy the requirements of the [IDEA] presents a more difficult problem” than a simple recitation of the applicable legal standards.20 This is because “[ i]t is clear that the benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end, with infinite variations in between .”21 Thus, “levels of progress must be judged with respect to the potential of the particular child.”22
In considering the appropriateness of an IEP, the actions of a school district are not to be
judged exclusively in hindsight. An IEP is a snapshot, not a retrospective. In striving for appropriateness, an IEP must take into account what was, and was not, objectively reasonable when the snapshot was taken, that is, at the time the IEP was promulgated.23
“ [T]he critical inquiry in a case of this genre is whether a proposed IEP is adequate and appropriate for a particular child at a given point in time.”24 This standard does not preclude the admission of evidence acquired after the creation of the IEP, but this evidence should only be used to evaluate the reasonableness of a school district’s decisions at the time they were made.25 This evidence may include, for example, a student’s subsequent educational progress.26
If a school district fails in its obligation to provide FAPE to a student with a disability, parents may enroll their child in a private school and seek retroactive reimbursement for the cost of the private school.27 Reimbursement is a matter of equitable relief, with the decision-maker having the responsibility to consider, among other things, the reasonableness of the parties’ positions.28
In the instant dispute, Parent has the burden of persuasion that Sudbury’s proposed IEPs for 6 th grade were not appropriate, that Sudbury should have proposed an IEP for 5 th grade, and that that the private school in which Student has been enrolled (Carroll School) is appropriate.29
5 th grade – Failure to Provide an IEP
It is not disputed that no IEP was proposed by Sudbury for any part of 5 th grade (the 2008-2009 school year). It is also not disputed that Student had been previously found eligible for special education services by Sudbury, and prior to Sudbury’s determination of eligibility, Dennis-Yarmouth School District had determined Student to be eligible for special education services.
As a general rule, the failure of a school district to propose an IEP is fatal to any claim that it complied with its responsibilities under the IDEA to provide FAPE to an eligible special education student because the development and implementation of an adequate IEP is fundamental to a school district’s compliance with both state and federal special education requirements.30 If a school district fails in its obligation to provide an IEP that is reasonably calculated to offer FAPE, parents may enroll their son or daughter in a private school and seek retroactive reimbursement for the cost of the private school, as Parent has done in the instant dispute .31 And, as the Supreme Court has noted, “failure to propose an IEP of any kind is at least as serious a violation of its responsibilities under the IDEA as a failure to provide an adequate IEP.”32
Sudbury does not dispute these general rules, but rather takes the position that it had no legal obligation to offer Student an IEP for 5 th grade. Sudbury correctly points out that because Parent has yet to agree to any special education or related services, Sudbury is precluded from providing any special education or related services to Student. Sudbury argues that, under these circumstances, it would “seem ridiculous and contradictory” to conclude that Sudbury should be responsible for “retroactive or prospective funding” of Student’s placement at Carroll. Sudbury’s closing argument at pp. 16-17. In support of its position, Sudbury relies upon federal and state special education regulations and upon judicial and BSEA decisions that hold that no IEP need be developed in the instant dispute, under the circumstances presented for 5 th grade.
I begin with consideration of federal special education regulations that include the following language:
(1) A public agency that is responsible for making FAPE available to a child with a disability must obtain informed consent from the parent of the child before the initial provision of special education and related services to the child.
(2) The public agency must make reasonable efforts to obtain informed consent from the parent for the initial provision of special education and related services to the child.
(3) If the parent of a child fails to respond to a request for, or refuses to consent to, the initial provision of special education and related services, the public agency —
(i) May not use the procedures in subpart E of this part (including the mediation procedures under§ 300.506 or the due process procedures under§§ 300.507 through 300.516) in order to obtain agreement or a ruling that the services may be provided to the child;
(ii) Will not be considered to be in violation of the requirement to make FAPE available to the child because of the failure to provide the child with the special education and related services for which the parent refuses to or fails to provide consent ; and
(iii) Is not required to convene an IEP Team meeting or develop an IEP under§§ 300.320 and 300.324 for the child .33
It is not disputed that neither Sudbury nor any other school district has provided special education or related services to Student. In commentary to proposed regulations, the US Department of Education made clear its understanding that “initial” provision of special education services and related services (as that word is used in the italicized language in the above-quoted regulations) is when a student with a disability “receives special education and related services for the first time.”34 This is the case in the present dispute. I therefore agree with Sudbury that the above regulatory provision applies to the instant dispute in that Parents failed to respond to a request for initial provision of special education and related services following the issuance of the IEP for period of March 2007 to March 2008.
The bolded and underlined language in the above-quoted regulatory provision holds Sudbury harmless from convening an IEP Team meeting, developing an IEP, or providing special education or related services. However, the question remains how long , pursuant to this regulatory language, Sudbury need not propose an IEP for Student.
The bolded language in clause 34 CFR 300.300(b)(3)(ii), quoted above, makes clear that, a school district is held harmless only with respect to the special education and related services “for which the parent … fails to provide consent.” In the instant dispute, the special education and related services that need not be provided are those set forth within the proposed March 2007 to March 2008 IEP. Parent did not “fail[] to provide consent” to any other services because none were offered until Sudbury’s next IEP that was issued in June 2009 for 6 th grade. Exhibit S-1.
I read clause 34 CFR 300.300(b)(3)(iii), quoted and underlined above, as inter-related with 34 CFR 300.300(b)(3)(ii), quoted and bolded above—that is, so long as there is no responsibility to provide FAPE, no IEP need be developed. Conversely, once a school district has a responsibility to provide FAPE, it necessarily follows that an IEP must be developed. The opposite conclusion (that a school district could have a responsibility to provide FAPE but no responsibility to convene an IEP Team meeting or develop an IEP) makes no sense within the context of the IDEA since the IEP is the only vehicle within the IDEA for implementation of a school district’s responsibility to provide FAPE.35 In other words, as soon as Sudbury had a responsibility to provide Student with FAPE, it had a responsibility to propose an IEP.
This conclusion is further supported by a review of the analogous statutory language within the IDEA. The underlined clauses (below), which limit the hold-harmless language to the special education and related services for which the parent did not consent, are identical for purposes of both the FAPE and IEP responsibilities of a school district. The relevant statutory language reads as follows:
Effect on agency obligations. If the parent of such child refuses to consent to the receipt of special education and related services, or the parent fails to respond to a request to provide such consent–
(aa) the local educational agency shall not be considered to be in violation of the requirement to make available a free appropriate public education to the child for the failure to provide such child with the special education and related services for which the local educational agency requests such consent ; and
(bb) the local educational agency shall not be required to convene an IEP meeting or develop an IEP under this section for the child for the special education and related services for which the local educational agency requests such consent .36
For these reasons, I read the federal regulations relied upon by Sudbury to have relevance only to the IEP (and the time period of this IEP) to which Parents did not respond, and therefore they have no relevance to Sudbury’s responsibility to provide FAPE and issue an IEP for the subsequent 5 th grade year.
Any argument that Sudbury is indefinitely held harmless from proposing an IEP (so long as Parent does not request at least some services) also runs counter to the US Department of Education’s position regarding child find. Within the context of the above-quoted regulations and statute, DOE has determined that “child find” requirements continue in effect during the time period that a parent declines to consent to initial services.37 Child find requirements apply where parents unilaterally place their son or daughter into a private school.38 Under child find, a school district is not permitted simply to ignore indefinitely a student within the district who has special education needs.39
Sudbury also relies upon several judicial and BSEA decisions for support of its position that because Parents did not consent to any special education or related services and because Parents privately placed Student at Carroll School, it had no responsibility to propose an IEP for 5 th grade. Sudbury’s principal support for this position is Amann v. Stow School System , a 1992 First Circuit decision resolving a Massachusetts special education dispute where parents had unilaterally placed their son at the Carroll School. The Court held that although there is a general requirement under the IDEA to review IEPs at least annually,
federal regulations promulgated under the IDEA also say that public officials need “develop[ ] and implement[ ]” an IEP for a child in private school only if the child was “placed in or referred to [the] private school or facility by a public agency. ”34 C.F.R. § 300.341(b). [Emphasis in original.]40
For this reason, the Court held that Stow had not “ignored its statutory duty” to prepare an IEP for student because he had been unilaterally placed at a private school.41
Similar to the IDEA regulations relied upon in the Amann decision in 1992, current IDEA regulations make clear that federal due process protections, including the entitlement to an IEP, do not extend to private school students.42
However, in contrast to the federal regulations, Massachusetts regulations provide that a “school district shall provide or arrange for the provision of evaluation services and an IEP for any eligible private school student whose parent resides in the jurisdiction of the school district.”43 A Massachusetts Department of Elementary and Secondary Education advisory addressing a Massachusetts’ school district’s responsibility to parentally-placed private school students explains the difference between state and federal regulations in this regard: “In contrast to state law that requires all eligible students to have an IEP, federal law requires school districts to expend only a proportionate share of the federal money districts receive under Part B of IDEA to provide services to parentally-placed private school students.”44
I find that Amann has no relevance to the instant dispute because Massachusetts special education regulations (which extend beyond the federal requirements pertaining to privately-placed students) require a school district to provide an IEP to all eligible, parentally-placed, private school students . Sudbury must implement the more protective state regulations, and therefore cannot rely on the federal regulations that do not require an IEP in this situation.45 For the same reasons, other court decisions cited by Sudbury (which rely on Amann or its analysis) are not relevant to the instant dispute.46 And, the two BSEA decisions relied upon by Sudbury did not consider the above-referenced Massachusetts regulations and advisory requiring an IEP for all parentally-placed private school students who are eligible for special education services .47
Citing First Circuit case law, Sudbury further argues that Parent’s lack of cooperation in the IEP process precludes any responsibility that Sudbury might have to propose an IEP. The First Circuit has excused a school district’s failure to propose a new IEP on the basis of a parent’s actions, but only when a parent’s unreasonable actions substantially contributed to that failure.48 In the instant dispute, Parent’s only lack of cooperation was her not responding to the IEP proposed in March 2007, and this did not, in any way, interfere with Sudbury’s proposing a subsequent IEP for 5 th grade. Sudbury has pointed to no judicial or administrative decision that has exempted a school district from developing an IEP under these circumstances.
For these reasons, I find that Sudbury’s failure to propose an IEP for 5 th grade denied Student FAPE.49
6 th grade – Appropriateness of Sudbury’s proposed IEP
As discussed earlier in this Decision, Sudbury developed and proposed an IEP for Student’s 6 th grade year (2009-2010). I now consider the appropriateness of this IEP.
The educational program proposed for Student as reflected within his IEP is more fully described above in the discussion of the 2009-2010 school year (6 th grade) in the Educational Profile and History section of this Decision. Essentially, the proposed program would provide Student with small group, pull-out classes for English language arts and math. He would also be placed within general education classes for science and social studies, where he would receive special education support services from the special education teacher or teaching assistant. Within the proposed IEP, the support services are reflected in 40 minutes, twice daily of support from a special education teacher or assistant in social studies and science. There is a significant amount of coordination and communication between the special education teacher and teacher assistant, as well as between the special education staff and regular education teachers, the special education staff teach “carry over” skills that can be applied within the regular education classroom, and the special education staff preview and review lessons taught within the regular education classrooms and otherwise support the special education students with respect to their participation within the regular education classrooms. Testimony of Dean, Gilman, Milley, Donahue; exhibits S-1, S-2, S-59.
Sudbury’s witnesses provided credible testimony that the LLD program, as a whole, would be appropriate for Student. I found this evidence to be persuasive with respect to the appropriateness of the math and English language arts components of the curriculum, as well as the specialized instruction that Student would receive for purposes of remediating his language-based learning deficits.
Yet, for reasons explained below, I find Parent’s evidence to be more persuasive that with respect to science and social studies in particular, Student would not likely be able to access Sudbury’s curriculum in a meaningful manner and would be unlikely to progress effectively in the science and social studies content areas of the general curriculum as taught in Sudbury’s proposed program and as reflected in its proposed IEPs.
Parent relied upon three expert witnesses, each of whom has evaluated Student, and each of whom has extensive experience and expertise. These experts, individually and taken together as a group, provided persuasive testimony that because of Student’s particular combination of educational disabilities and weaknesses, he simply would not likely be able to learn effectively within the general education classrooms in which he would be placed, notwithstanding the excellent teachers and substantial supports built into the Sudbury LLD model. In addition, the Carroll School witnesses, who have taught or observed Student, supported the assessment of Parent’s experts that Student is an exceptionally fragile learner, who even with the program at Carroll where all of the classes are taught only to students with a profile similar to Student’s, is able to make only slow progress.
The relevant testimony and recommendations of Parents’ experts and the Carroll Center witnesses, upon which I rely, are summarized immediately below.
Anita Pliner, PhD, JD, who has been a licensed psychologist and pediatric neuropsychologist since 1995, observed Student at the Carroll School, observed the program at which he would be placed in Sudbury for 6 th grade (including social studies and science classes), reviewed various evaluations and reports regarding Student, and conducted a written language evaluation of Student on January 8, 2010. Testimony of Pliner; exhibits P-60, P-61.
On the basis of the pace of the instruction, complexity of language used, and the size of the class in the social studies classroom that she observed, Dr. Pliner testified that it would be “extremely difficult” for Student to follow what was happening and to contribute in the classroom regardless of the effectiveness of the teachers. She opined that Student would be “completely overwhelmed”, with the result that he would “tune out” and would be “not able to participate” in this educational environment. In short, the classroom experience would be “extremely overwhelming” for Student. Dr. Pliner reached the conclusion that this classroom is a “far cry” what is needed for Student, notwithstanding her view that Ms. Ryan, the regular education social studies teacher, is an “excellent” teacher. Ms. Ryan testified that on the day that Dr. Pliner observed, the pace and content of instruction was that of a typical day in her classroom. Testimony of Pliner, Ryan; exhibit P-60.
Dr. Pliner also observed the regular education science classroom in which Student would participate in Sudbury’s 6 th grade proposed program. Dr. Pliner found that the regular education teacher was “excellent” but again found that the pace and content of instruction would be “extremely overwhelming” for Student. She also noted that the classroom was extremely noisy; “not a functional place” for someone with Student’s auditory processing deficits. Testimony of Pliner; exhibit P-60.
Dr. Pliner noted in her report that “[b]oth teachers routinely used complex and lengthier language.” She concluded in her report that both social studies and science would be “far too hard for [Student] to follow or learn any content” even with teacher and aide to help. Exhibit P-60.
Parent’s second expert witness was Ann Helmus, PhD, who has been a pediatric neuropsychologist since 1991, evaluating children and consulting to parents as well as public schools (she testified that 3 or 4 times per year a public school engages her to consult to the school, typically regarding an individual child, and she has testified on behalf of a public school). Dr. Helmus has evaluated Student, observed Sudbury’s proposed educational program for 6 th grade, and briefly spoken with Sudbury staff. Of all the witnesses over the course of the three-day hearing, I found Dr. Helmus to be the most impressive in light of her sophistication, candor, knowledge of Student, and experience working for parents and public school districts alike. Her written reports and testimony reflected a comprehensive understanding of Student. Dr. Helmus also had the advantage of reviewing Student over the course of a period of years, as she signed off on Dr. Moldover’s neuropsychological evaluation in 2005, as well as conducting a more recent neuropsychological evaluation (with Dr. Green) in December 2008/January 2009. I note that she had the disadvantage of not observing the science and social studies classes being proposed for Student for 6 th grade. Testimony of Helmus; exhibits S-6, S-11, S-30.
After her June 15, 2009 observation of Sudbury’s proposed program, Dr. Helmus issued a report that made clear her concerns about the appropriateness of this program for Student.
She concluded that Sudbury’s “proposed educational program would not meet [Student’s] needs effectively, largely because of the inclusion component of the program” in social studies and science where Student would be supported in regular education classes. Student’s “learning disability and associated weak academic skills will make it extremely difficult for him to access the curriculum and make effective progress.” Her observation report then stated:
Placement in mainstream classes would not provide [Student] with the direct teaching that he requires to learn how to express himself effectively in written and spoken language. His weak expressive language skills would hamper his ability to participate in class discussions and demonstrate his knowledge verbally. Similarly, his poor spelling and written expression skills will undermine his ability to demonstrate his knowledge in writing. [Student’s] reading fluency is currently measured in the lowest 1 %ile of his age group, which would seriously impede him from being able to keep up with independent work demands, reading instructions, etc. in a mainstream setting.
Exhibit S-6.
In her testimony and report, Dr. Helmus further clarified the basis of this conclusion. She opined that in a regular education classroom, Student would not likely be able to access the curriculum or learn effectively because of his combination of (1) academic skills that are significantly weaker than any regular education students, (2) language processing deficits would get in the way of accessing the curriculum in a regular education class, and (3) emotional deficits, which are secondary to his learning deficits. Testimony of Helmus; exhibit S-11.
Dr. Helmus further explained the relevance of Student’s emotional deficits, when combined with his weak academic skills and language processing deficits. Dr. Helmus testified that even if a class is co-taught, the bulk of what Student would be exposed to in a regular education classroom would be too difficult for him. If he started to struggle in the classroom and felt that he was not understanding what was happening, he would likely shut down or becoming oppositional. This would likely trigger an emotional reaction, making Student very hard to reach. She also noted that Student has shame regarding his learning disability and can be resistant to authority figures. If he were aware that an adult was working with him individually in the classroom, he would not likely accept that situation. Testimony of Helmus; exhibit S-11.
The December 2008 and January 2009 neuropsychological evaluation by Dr. Helmus and Dr. Green explained this concern as follows:
In general, [Student] has struggled with self-confidence and frequently has conflict with adults who are in positions of authority. The concern with placing [Student] in a mainstream school is that, given his below grade-level academic skills, his self-confidence would drop further and conflict with authority figures would increase. As was observed in testing, [Student] is already difficult to direct when he is asked to engage in tasks that he dislikes.
Exhibit S-11.
Dr. Helmus testified that, for similar reasons, it would not be appropriate for Student to be in a class of 20 or more students, even if it were not a regular education classroom. She opined that he needs a student-teacher ratio 1:8 or 1:10 but not 2:20 because he needs more individualized attention and a smaller environment that would be less distracting. Testimony of Helmus; exhibit S-11.
Dr. Helmus’ testimony may be criticized because she assumed that Student would be using grade level curriculum in social studies and science and that this curriculum would require grade level reading ability. Sudbury witnesses made clear that curriculum is modified in these classes, and accommodations are made with respect to reading ability. Nevertheless, I do not view these criticisms of Dr. Helmus’ testimony as undercutting the persuasiveness of her essential concerns that the pace and complexity of instruction that occurs within the regular education classrooms at Sudbury would simply be beyond Student’s current academic level, learning ability, and emotional tolerance. Testimony of Helmus; exhibit S-11.
Dr. Helmus’ concerns regarding Student’s vulnerability as a learner were also reflected within the testimony of the Carroll School witnesses who have taught or observed Student in the classroom. All of the Carroll witnesses testified in a candid, balanced, and credible manner, and they evidenced a practical knowledge of Student and his learning needs. Their testimony alone would not be persuasive that Sudbury’s proposed program is inappropriate, but they strongly supported the recommendations and conclusions of Parent’s three experts.
Student’s 6 th grade language teacher at Carroll testified that Student has made progress regarding social and emotional issues by being able to face challenges without shutting down that he could not previously face; that he is making very slow progress in knowing that the teachers are there to support him and feeling comfortable in the classroom; but that Student has a continuing difficulty shutting down (or going down the road of shutting down by not following directions and not responding) when he becomes frustrated or finds a topic to be difficult. Testimony of Gold.
The Carroll School head of the middle school (Mr. Brown) testified that Student is a “fragile learner.” He explained that Student can shut down and disengage and stop participating if he is feeling that he cannot do something. Mr. Brown testified that this occurs predominantly when Student is unable to keep up with the language that is being used or when the language demands overload him. Mr. Brown opined that Student needs to be placed with students whose educational profiles are similar to Student’s, and that it would be difficult for Student if he were singled out for attention by a teacher or aide. Testimony of Brown. Similarly, a Carroll School language tutor (Ms. Lowell) testified that when language becomes too difficult or overwhelming for Student, he shuts down. Testimony of Lowell.
Carroll School witnesses also testified as to the necessity of teaching Student at a slow pace, using instruction that is not complex—for example, oral directions must be broken down, with specific steps laid out visually and sufficient time provided to process and complete each step before going on to the next step. The greater the number of children in the classroom, the more difficult it would be for Student—at Carroll, when two classes were put together (making a class size of 14 students), it is more difficult for Student. Testimony of Gold, Lowell.
The testimony of Parent’s third exert, Geri Shubow, who is a highly-experienced audiologist, supported the testimony of Dr. Helmus and Dr. Pliner, as well as the testimony of Carroll staff, that Student would likely have difficulty learning effectively within a classroom of approximately 20 students. Ms. Shubow testified that Student has difficulty with background noises, he has a slow rate of processing, and he will do better in a small classroom (both with respect to total number of children and with respect to student-teacher ratio) with minimum background distractions. On the basis of her testing Student twice, her observation, and her review of other reports (including the most recent neuropsychological evaluation), Ms. Shubow recommended a maximum of nine children with two teachers and opined that in a larger class room (of 20 or more students), it is much more difficult for Student to learn effectively because of his auditory and other learning deficits. Testimony of Shubow; exhibit S-3.
Shubow’s June 20, 2009 evaluation report includes the following support for her testimony:
Student had difficulty with the accuracy of what he heard when listening to speech presented in competing background noise and difficulty listening to degraded speech. These issues would be harder for him in a classroom setting. He misheard words within a complex auditory setting. The mishearing would affect all academic learning in the classroom and social communication situations, particularly in larger classrooms and noisy settings ….
He is at risk of inaccurately perceiving auditory information. This is particularly true when information is presented in a noisy background, involves multiple parts, is presented quickly or contains unfamiliar language concepts….
Smaller more structured classrooms would be most appropriate for [Student]….
The mishearing difficulty should not be underestimated and can interfere greatly in a classroom setting .
Exhibit S-3 (bold in original).50
Sudbury disputed this evidence. The Sudbury special education teacher, teacher assistant, and speech-language therapist for the 6 th grade LLD program, as well as Sudbury’s Special Education Administrator all testified that, in their opinion based on their understanding of Student, his educational needs and the LLD program, Student would be appropriately placed within this program. Although Ms. Dean does not work with the middle school LLD program for 6 th grade, she is familiar with it because of its similarity to the LLD program for 4 th and 5 th grades. She opined that this program would be appropriate for Student for 6 th grade. In addition, the regular education social studies teacher and the regular education science teacher each testified that Student would be appropriately placed within their classroom. Testimony of Dixson, Gilman, Milley, Donahue, Dean, Ryan, Deneen.
The testimony of these Sudbury witnesses was similar in that they are all are familiar with Sudbury’s LLD program, which is for students for whom language is a primary impediment to learning. They noted that just as the other students in this program have language disabilities that prevent them from accessing the regular curriculum without significant changes in the pace and design with which the curriculum is delivered, so too Student has similar needs. In addition, most students in this program have low-average to average intelligence, and they do not have behavior difficulties; and Student also fits this profile. A number of the witnesses also noted that in the past the LLD program has successfully worked with students who not only have language based learning disabilities but also have an auditory processing deficit, and the program should be able to work successfully for Student with respect to his disabilities and deficits in these areas. None of these witnesses appeared to have any doubt that this program would be a good fit for Student and that he would likely be successful. Testimony of Dean, Gilman, Milley, Ryan, Deneen; exhibit S-2.
Sudbury staff provided credible testimony. I do not doubt that the LLD program provides an excellent education for many special needs students who have a learning profile that includes language-based learning disabilities and, perhaps, for some students with a language-based learning disability together with auditory processing deficits.
However, I find that the Sudbury staff were not persuasive that they sufficiently understood the implications of Student’s multiple deficits or that the LLD program could be sufficiently tailored to meet Student’s unique educational needs—particularly, with respect to the regular education classes in science and social studies where Student would likely have extreme difficulty keeping up with the pace and content of the classroom instruction. I also was not persuaded that Sudbury staff fully appreciated the likely negative implications to Student’s learning (for example, becoming disengaged) if he met with substantial difficulties understanding what was being taught in science and social studies.
As compared to Sudbury’s witnesses, Parents’ three experts (together with the Carroll School witnesses) persuaded me that they have a more complete, more detailed, and more informed understanding of Student, his educational needs and how those needs can be appropriately met in order for him to access the curriculum and make meaningful or effective progress. Their testimony and reports, as summarized above, were persuasive, and I so find, that the LLD program is not sufficiently tailored to Student’s unique educational profile to allow him to access (and make meaningful or effective progress in) the science and social studies curricula. While several Sudbury staff had evaluated Student, their evaluations were not as comprehensive or as informing as the evaluations by Parents’ experts. Finally, I note that although the Sudbury witnesses had the opportunity to listen to and then testify subsequent to Parent’s experts, the Sudbury witnesses did not respond persuasively to (or otherwise rebut) Parent’s experts’ concerns that Sudbury’s proposed program was not sufficiently tailored to address Student’s unique educational needs.51
Sudbury further argues that, on the basis of information reasonably available to the IEP Team when it prepared this IEP, its IEP was appropriate. See discussion at footnotes 23-26 and accompanying text, above, regarding the legal necessity of considering the Team’s decision from the perspective of what was known or reasonably should have been known at the time the IEP was developed. In particular, Sudbury points out, correctly, that when the 6 th grade IEP was developed, the Team was not in possession of Dr. Pliner’s evaluation, Dr. Pliner’s report of observation, and Dr. Helmus’ report of observation. Nevertheless, the IEP Team was in possession of Dr. Moldover’s 2005 neuropsychological evaluation, Dr. Helmus’ 2008/2009 neuropsychological evaluation and, during the second IEP Team meeting (September 2009), was in possession of Ms. Shubow’s second audiological evaluation. These evaluations provided ample evidence of the overwhelming difficulty of Student’s accessing successfully the science and social studies classes.
For these reasons, I am persuaded that Sudbury’s proposed IEP for 6 th grade was not reasonably calculated to provide Student with FAPE.
Reimbursement
As discussed within the Issues section, above, this Decision does not address any rights that Parents may have regarding Student’s placement at the Carroll School subsequent to the date of the instant Decision.52 The only relief to be considered pertains to Parents’ claims for reimbursement as a consequence of Sudbury’s not proposing appropriate IEPs for 5 th and 6 th grades and Parents’ unilateral placement of Student at Carroll. Reimbursement may be available only for Parents’ out-of-pocket expenses that have been incurred and paid as of the date of the instant Decision.53
Student has attended the Carroll School at private expense from the 3 rd grade (2006-2007 school year) through the present. Parent seeks reimbursement for 5 th and 6 th grades, which claims I will now consider.
If a school district fails in its obligation to provide FAPE to a student with a disability, parents may enroll their son or daughter in a private school and seek retroactive reimbursement for the cost of the private school. A BSEA Hearing Officer may require the school district to reimburse the parents for the cost of that enrollment only if the Hearing Officer finds both that (1) the school district had not made FAPE available to the student in a timely manner prior to that enrollment and (2) the private school placement was appropriate. In such circumstances, the school system will be responsible for the reasonable out-of-pocket costs incident to that private placement, including tuition and transportation.54
Within the reimbursement context, not all of the statutory requirements of FAPE apply to consideration of the appropriateness of the private educational services.55 Even so, Parents will not be entitled to reimbursement for the privately obtained services unless they offered Student “an education otherwise proper under [the] IDEA.”56 When a public school system has defaulted on its obligations under the Act, a private school placement is “proper under the Act” if the education provided by the private school is “reasonably calculated to enable the child to receive educational benefits”.57
In Mr. I. v. Maine School Administrative District No. 55, the First Circuit further clarified the necessary elements for reimbursement of a private placement. The Court explained:
In Burlington, the Supreme Court reasoned that because parents who disagree with the proposed IEP are faced with a choice: go along with the IEP to the detriment of their child if it turns out to be appropriate or pay for what they consider to be the appropriate placement, they are entitled to reimbursement of the expenses of that placement if it turns out they were right in choosing it. Implicit in this reasoning is the notion that parents rightfully decide on a private placement when it addresses, at least in part, their child’s special educational requirements, while the IEP does not. . . .
As we have recognized, a private placement need provide only some element of the special education services missing from the public alternative in order to qualify as reasonably calculated to enable the child to receive educational benefit. Nor must the placement meet every last one of the child’s special education needs. But the reasonableness of the private placement necessarily depends on the nexus between the special education required and the special education provided.58
When considering the appropriateness of the private school, the First Circuit does not necessarily consider evidence of educational progress to be persuasive.59 The Court has focused more on the appropriateness of the services provided to the student in light of the recommendations of the educational experts.60
Parent’s evidence regarding the appropriateness of the Carroll School easily satisfies these standards. As will be explained in more detail below, Carroll has been specifically established for the purpose of addressing the needs of children with Student’s profile. All of the special education and related services identified by the educational experts as necessary for Student are being (and have been provided) to Student at Carroll. In particular, the parts of the special education program missing from the Sudbury IEP (that is, small classes with specialized instruction for all of Student’s classes) are being provided at Carroll. Parent’s principal experts have strongly recommended Carroll for Student. The principal weakness of the Carroll School program, as it pertains to Student, is that his progress has been slow and somewhat uneven. Within the context of a reimbursement claim, I do not find this weakness, by itself, to be fatal.
Student needs an educational program that is language-based and provides intensive remediation for his language deficits. He requires small class size and specialized instruction throughout the school day. He needs emotional support. He needs to be placed with children who have a similar educational profile—that is with language-based disabilities, average or above cognitive abilities and no substantial behavioral difficulties. Testimony of Helmus, Pliner, Dean; exhibits S-6, S-11, S-30, S-60, S-61.
As Mr. Brown testified, Student is the “definition” of the students served by the Carroll School. Carroll has been designed to address children with Student’s profile of language-based learning disabilities, average intelligence and no behavioral deficits. Carroll provides each of the necessary elements to Student’s education. Testimony of Gregory, Brown.
All Carroll teachers are provided comprehensive training in the Orton-Gillingham approach that is integrated into the entire curriculum at Carroll. Orton Gillingham is a systematic, explicit, language-based program that focuses on phonemic learning (decoding and encoding of the English language). The program is prescriptive and diagnostic so every lesson is based upon the previous day’s work and grammatical instruction. All students at Carroll have a language-based disability. All classes are small, with no more than eight children in a classroom). No individual speech-language services are provided by Carroll staff because services that would normally be provided by a speech-language pathologist (for example, phonemic awareness) have been incorporated into the curriculum; and as necessary, students are referred for outside individual speech-language therapy. Every day, there are two periods of language instruction in 5 th and 6 th grade, and one period of reading fluency instruction in 6 th grade. Math, history and science are taught daily. Carroll is approved as a special education school. Testimony of Gregory, Gold, Dean; exhibits S-35, S-36, P-62.
Testimony of Carroll staff indicated that Student has been making slow but steady progress. He is making progress using and assimilating skills and strategies (academic and emotional) that he is learning. Student has made progress with encoding and decoding in a structured setting and continues to struggle with written output and oral fluency. Written progress reports from Carroll similarly indicate that he is developing academic skills but continues to need guidance, step-by-step instruction, additional time to process each step, check-ins to be certain that he understands the material, and spiraling back to make connections to previously learned material. Testimony of Gold, Lowell; exhibits S-37, S-60.
More specifically, progress reports at the end of 5 th grade indicate that he substantially benefitted from the instruction in all of his classes, actively participated in his classes, and learned new concepts, skills and strategies, particularly in the areas of math and language. Through the year, he struggled with written expression. He gained confidence over the year but continued to have deficits with self-advocacy. The most recent progress reports for sixth grade indicate that Student continues to need a substantial amount of teacher support to remain a “positive and engaged member of the class.” When he is engaged in the text, Student is able to apply learned strategies to decode words; and with opportunities to practice, he is able to incorporate fluency strategies. Overall, Student is “doing well” with the structure of Orton Gillingham that is being taught at Carroll. According to these reports, Student also is making good progress in math (he has developed a “firm” understanding of long division), is making slow progress in history (becoming more independent in acquiring information), and is making good progress in science (has a practical understanding of science concepts and is able to apply information from class to his experiences). Exhibits S-39, S-60.
Emotional support is provided to Student at Carroll. Counseling is provided as necessary.
A Carroll counselor is available to assist Student if there is an emotional concern or there are signs that Student is shutting down. Carroll assists him regarding his self-esteem and confidence. Student has self-esteem issues, but he has made progress with social and emotional issues by being able to face challenges (without shutting down) that he could not previously face. Student is making slow progress in knowing that the teachers are there to support him and feeling comfortable in the classroom. Testimony of Gold, Lowell.
Dr. Pliner, the neuropsychologist who evaluated Student’s written expression, observed two Carroll School classes (history and English) on November 20, 2009. She found that all students received considerable individual attention, there was significant use of multimodal teaching, language was routinely delivered at a slow pace, there were frequent teacher check-ins for comprehension, decoding strategies were developed in both classes, and the students remained engaged. She found the classes to be structured but also flexible and animated, with frequent praise for students using taught strategies. Dr. Pliner testified that both classes were highly appropriate for Student. Testimony of Pliner; exhibit P-60.61
Following her observation at Carroll, Dr. Pliner wrote a report concluding as follows:
It is clear, from review of the nature of [Student’s] language based learning disability that the program at the Carroll School incorporates all the modifications he needs to make effective academic progress in all areas. Further, the positive class tone is essential for his social emotional functioning.
Exhibit P-60.
Student’s other education expert (Dr. Helmus) also opined regarding the appropriateness of Carroll for Student. In her December 2008 and January 2009, neuropsychological report, Dr. Helmus reached the following conclusions regarding the appropriateness of the educational services that Student had been receiving at Carroll and the importance of Student’s continuing to attend Carroll or a similar educational program:
In the past three years, [Student] appears to have benefited from being in a school specifically designed to address the needs of students with language based learning disabilities.
In order to access grade level curriculum effectively and to master compensatory strategies for his learning disability, [Student] continues to require placement in a setting where teachers understand language based learning disabilities, other students have similar learning styles, and [Student] receives guidance and support in the development of his verbal academics skills. … A school such as The Carroll School, which combines non-verbal content learning with support for verbal learning strategies, seems optimal for meeting [Student’s] needs in these areas. In particular, [Student’s] improved score on the story recall test demonstrates his improved ability to listen, organize, and retell stories, skills that are a focus at The Carroll School.
In addition to the academic benefits of a school where students have similar learning needs, the emotional and social advantages to placing [Student] in this setting have been striking.… In general, [Student] has struggled with self-confidence and frequently has conflict with adults who are in positions of authority. The concern with placing [Student] in a mainstream school is that, given his below grade-level academic skills, his self-confidence would drop further and conflict with authority figures would increase. As was observed in testing, [Student] is already difficult to direct when he is asked to engage in tasks that he dislikes.
We strongly recommend [Student’s] continued placement at The Carroll School. At this time, he would not be able to access grade level curriculum and make effective progress in a regular education class because of his learning disability and weak academic skills. Furthermore, he requires the intensity of the program at The Carroll School in order to learn how to compensate for his disability.
Exhibit S-11 (pages 9, 10)
In Dr. Helmus’ report of her June 15, 2009 observation of the proposed Sudbury program, she wrote: “I strongly recommend that [Student] continue at The Carroll School for sixth grade with a re-assessment of his educational progress in March 2010.” Exhibit S-6
In opposing the appropriateness of Carroll School, Sudbury has relied principally upon Student’s standardized test scores, over time, that indicate that in certain areas, Student may not be making meaningful or effective progress. See Sudbury’s closing argument at pp. 33-34.62
A comparison of the neuropsychological evaluation in May 2006 with the most recent neuropsychological evaluation (12/9/08, 12/18/08, 1/8/09) indicates an increase in standardized test scores in word reading (69 to 77), pseudoword decoding (86 to 92), reading rate (3 to 5), and reading comprehension (8 to 9). Comparison of these evaluations also indicates a decline in standardized test scores in numerical operations (81 to 75), math reasoning (95 to 90), spelling (84 to 74), and reading fluency (4 to 3). Reading accuracy standardized test scores remained the same. Exhibits S-11, S-24. Similarly, Carroll annual assessments show areas of decline, areas of progress and areas of substantially no change when comparing standardized test scores. Exhibits S-40, S-42, S-45.
There are several difficulties in drawing firm conclusions from these test scores. First, there was no expert testimony interpreting them or explaining their relevance to Student’s actual progress (or lack of progress) at Carroll. As a general rule, if standardized test scores remain the same over time, this indicates that a student is making progress commensurate with that of his or her peers, and the gap between the student and his or her peers is neither increasing nor decreasing. Therefore, if standardized test scores remain relatively constant over time, this may indicate meaningful progress for that particular student. Without expert testimony comparing and assessing Student’s standardized test scores over time, it is difficult to understand, with any certainty, the significance of a decrease in the particular standardized test scores highlighted in Sudbury’s closing argument. Second, there was no testimony explaining the Carroll testing—for example, the credentials of the tester or the circumstances of the testing. The documents themselves simply provide the scores without narrative or explanation. In sum, without more, the comparison of individual test scores relied upon by Sudbury provides little probative evidence as to whether Student, on the whole, has been making effective or meaningful progress and whether the progress that Student has been making is commensurate with his educational potential. This evidence did not have sufficient clarity or probative value to rebut the testimony of Carroll School staff and Carroll progress reports regarding Student’s progress.
In sum, I find that the Carroll placement has provided instruction specifically designed to meet Student’s unique educational needs. As a result, Student has been able to access the curriculum in a meaningful manner at Carroll. Student’s academic progress has been somewhat uneven, but, overall, the weight of the evidence is that Student has been making slow, steady progress at Carroll. This is in the context of Student’s substantial, multiple learning deficits, as described above.
For these reasons, I conclude that Carroll has been an appropriate placement for 5 th and 6 th grades for purposes of Parents’ claim for reimbursement.63
Reduction or denial of reimbursement
Sudbury takes the position that Parent’s expenses attributable to the Carroll School program should not be reimbursed because Parent did not provide the requisite ten-day notice to Sudbury. Specifically, Sudbury relies upon 20 USC 1412 (a)(10)(C), which provides in relevant part as follows:
(ii) Reimbursement for private school placement
If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private elementary school or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment.
(iii) Limitation on reimbursement
The cost of reimbursement described in clause (ii) may be reduced or denied–
(I) if–
(aa) at the most recent IEP meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP Team that they were rejecting the placement proposed by the public agency to provide a free appropriate public education to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or
(bb) 10 business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in item (aa) . . . . [Emphasis supplied.]
Failure to comply with the statutory notice requirement does not automatically preclude reimbursement. T he statute on its face, as well as BSEA Hearing Officer decisions interpreting this statutory section,64 make clear that I have discretion as to whether the Sudbury’s obligation to reimburse Parents should be reduced and, if so, by how much.65
In exercising this discretion, I consider the equities.66 In so doing, I seek to understand the purpose of the statute and whether the purpose has been frustrated by Parent, with the result that Sudbury has been harmed. Just as the First Circuit has concluded that failure of a school district to follow IDEA procedures should have no legal consequence unless educational harm can be shown,67 so too Parent should not be penalized for failing to comply with a procedural requirement if her failure has not prejudiced Sudbury.
T he First Circuit in Greenland School District v. Amy N. , 358 F.3d 150, 160 (1st Cir. 2004) (citations omitted) has described the purpose of the statutory notice provision as follows:
This [notice requirement] serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a free appropriate public education can be provided in the public schools.
It is not disputed that Parent failed to provide Sudbury with the requisite ten-day notice with respect to Student’s 5 th grade placement at Carroll School. As discussed above, in March 2006 Sudbury proposed an IEP for Student, and Parent never responded to this IEP. Parent had no further contact with Sudbury until Parent, concerned about Student’s math progress at Carroll, approached Sudbury and requested a math evaluation in September 2008. Parent did not consent to the evaluation because the evaluation was later done at Carroll. Parent had no further contact with Sudbury until April 2009 when Parent provided Sudbury with Dr. Helmus’ 2008/2009 neuropsychological evaluation report.
During this time period (from March 2007 to April 2009), Parent gave no indication to Sudbury that she desired services from Sudbury or that Parent would be seeking reimbursement for Parent’s expenses from the Carroll placement. I also note that each time that Parent has approached Sudbury, either with a request for evaluation or to consider Parent’s evaluation, Sudbury has responded by completing requested evaluations and proposing an IEP.
On the basis of these facts, I find that Parent’s failure to give timely notice with respect to her reimbursement claim for 5 th grade likely caused Sudbury not to develop and propose an IEP or placement for 5 th grade. Under the Greenland standard stated above, Sudbury was prejudiced by Parent’s failure to provide Sudbury with statutory notice of her reimbursement claim. For this reason, I will deny Parent’s reimbursement claim for her Carroll School expenses for 5 th grade.
Sudbury concedes that through her rejection of the 6 th grade IEP, Parent gave notice of intent to seek funding from Sudbury for purposes of retroactive reimbursement of expenses for placement at Carroll, and I find that Parent provided the requisite notice. Sudbury’s closing argument at page 12. Exhibit S-1.
Sudbury argues further that, as a general rule, reimbursement for private school services must be premised upon a parent’s request that the school district place a student at the private school and therefore, in the instant dispute, Parent’s notice to Sudbury that she sought Sudbury to pay for the expenses of a Carroll placement is insufficient. In support of this position, Sudbury argues that in Forest Grove ,68 an essential part of the decision was that parents requested that the public school place their son in the private school where the parents had already privately placed him. I can find no indication that the Court considered important the parents’ request that the school district prospectively place the student in the private school, and therefore I find no support for this argument within Forest Grove .
The Court in Forest Grove summarized its holding as follows: “ When a court or hearing officer concludes that a school district failed to provide a FAPE and the private placement was suitable, it must consider all relevant factors, including the notice provided by the parents and the school district’s opportunities for evaluating the child, in determining whether reimbursement for some or all of the cost of the child’s private education is warranted.”69
I have considered the requisite notice above. I find that no other factors would warrant reduction of Parent’s award of reimbursement for 6 th grade.
ORDER
Parent is not entitled to reimbursement for expenses relative to her unilateral placement of Student at the Carroll School for 5 th grade.
Sudbury shall reimburse Parent for all of her out-of-pocket expenses (including tuition and transportation) that she has incurred and paid, as of the date of this Decision, for her unilateral placement of Student at the Carroll School for 6 th grade.
By the Hearing Officer,
William Crane
Dated: April 9, 2010
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
THE BUREAU’S DECISION, INCLUDING RIGHTS OF APPEAL
Effect of the Decision
20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must obtain such stay from the court having jurisdiction over the party’s appeal.
Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).
Compliance
A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).
Rights of Appeal
Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).
An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).
Confidentiality
In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
Record of the Hearing
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.
1
Parent’s hearing request, which was filed on July 24, 2009, requested that Sudbury pay for the expenses of Student’s placement at The Carroll School. At the beginning of the evidentiary hearing, Sudbury took the position that Parent’s hearing request should be interpreted to include no claim for reimbursement for expenses incurred for the current school year (6 th grade) because these expenses would be subsequent to the filing date of the hearing request and the hearing request did not explicitly include this request.
A hearing request of a pro se parent is to be liberally construed, and Parent is pro se . See Ahmed v. Rosenblatt , 118 F.3d 886 (1 st Cir. 1997) (“policy behind affording pro se plaintiffs liberal interpretation is that if they present sufficient facts, the court may intuit the correct cause of action, even if it was imperfectly pled”). Sudbury’s written response to Parent’s hearing request, filed on August 3, 2009, makes clear that Sudbury was defending its IEP for 6 th grade. Sudbury knew from Parent’s July 10, 2009 rejection of the IEP and placement that Parents were continuing to place their son at The Carroll School for 6 th grade, that Parents were seeking reimbursement from Sudbury, and that Parents may be using “legal” processes for that purpose. See exhibit S-1 (“We are looking for full reimbursement for [Student’s] incoming sixth grade placement at the Carroll School. I hope we can come to an agreement so that this does not have to cost the town of Sudbury, or ourselves of [sic] further legal involvement or fees.”) Sudbury has not alleged that it was unprepared or would otherwise be prejudiced by including a continuing claim for reimbursement for the current, 6 th grade school year. For these reasons, I find that implicit within the hearing request was the understanding that Parent would be requesting continued reimbursement through the date of the BSEA decision resolving this dispute.
Also, at the beginning of the evidentiary hearing, Parent took the position that the issues in dispute should include an order for an IEP that prospectively places Student at The Carroll School. On its face, Parent’s hearing request seeks relief only for reimbursement and did not provide notice of any claim that Sudbury was being asked to place Student prospectively at Carroll. It would be unfair to assume that Sudbury should have understood that Parent was seeking prospective placement since a reimbursement claim is legally and factually different than a claim that the School District should issue an IEP that prospectively places Student. I also note that the parties had a pre-hearing conference (with a different BSEA hearing officer) to discuss the disputed issues informally, and there is no indication in the record that Parent sought to amend her hearing request to include prospective placement. At the beginning of the hearing, it was too late to amend the hearing request without Sudbury’s agreement, and Sudbury did not agree to further amendment of the hearing request. See 20 USC § 1415 (f)(3)(B) (“party requesting the due process hearing shall not be allowed to raise issues at the due process hearing that were not raised in the notice filed under subsection (b)(7), unless the other party agrees otherwise”). Therefore, this Decision does not address any rights that Parents may have regarding Student’s prospective placement at The Carroll School.
2
Parent exhibits 1 through 59 are the same as Sudbury’s exhibits 1 through 59. For ease of reference throughout this Decision, I cite only to Sudbury’s exhibits 1 through 59, rather than to both parties exhibits 1 through 59.
3
Ms. Dean also testified that if necessary, a student can be pulled from the regular education classroom to receive individual assistance with the substantially-separate program, but it was unclear from her testimony whether she was referring only to the 07-08 IEP or also to the currently-proposed IEP. Ms. Dean did not attend the Team meeting for the currently-proposed IEP nor would she have been involved in developing this IEP since she is not the Team chairperson for middle school.
4
20 USC 1400 et seq .
5
MGL c. 71B.
6
20 USC 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A).
7
The phrase “least restrictive environment” means that, to the maximum extent appropriate for the particular student, the educational services are to be provided with other students who do not have a disability. 20 USC 1400(d)(1)(A); 20 USC 1412(a)(1)(A); 20 USC 1412(a)(5)(A); MGL c. 71B, ss. 2, 3; 34 CFR 300.114(a)(2(i) ; 603 CMR 28.06(2)(c).
8
20 USC 1401(9)(b); Winkelman v. Parma City School Dist., 127 S.Ct. 1994, 2000-2001 (2007) (“education must … meet the standards of the State educational agency); Mr. I. v. Maine School Administrative District No. 55, 480 F.3d 1 , 11 (1 st Cir. 2007) (state may “ calibrate its own educational standards, provided it does not set them below the minimum level prescribed by the [IDEA]”); Town of Burlington v. Department of Education , 736 F.2d 773, 792 (1 st Cir. 1984) (states are “free to exceed, both substantively and procedurally, the protection and services to be provided to its disabled children”).
9
MGL c. 71B, ss. 1, 2, 3.
10
Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 197, n.21 (1982) (“ Whatever Congress meant by an “appropriate” education, it is clear that it did not mean a potential-maximizing education.”).
11
G.D. v. Westmoreland Sch. Dist., 930 F.2d 942, 948 (1 st Cir. 1991). See also Lt. T.B. ex rel. 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.”).
12
Irving Independent School District v. Tatro , 468 U.S. 883, 891 (1984) (internal quotations omitted), quoting Rowley, 458 U.S. at 192.
13
20 USC 1414(d)(1)(A)(i)(I)-(III); Honig v. Doe, 484 U.S. 305, 311-12 (1988) ; Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 182 (1982).
14
Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1086 (1 st Cir.1993) (internal quotations and citations omitted). See also 20 USC 1400(d)(1)(A) (IDEA enacted “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living”); 20 USC 1401(9), (29) ( “free appropriate public education” encompasses “special education and related services,” including “specially designed instruction, at no cost to Parents, 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”); Lessard v. Wilton Lyndeborough Cooperative School Dist. , 518 F.3d 18, 23 (1 st Cir. 2008) (noting the school district’s “ obligation to devise a custom-tailored IEP”).
15
Rowley , 458 U.S. at 207, quoted in Lessard v. Wilton-Lyndeborough Coop. School Dist . , 518 F.3d 18, 27 (1 st Cir. 2008) (1 st Cir. 2010) .
16
DB v. Sutton, 07-cv-40191-FDS (D.Mass. 2009). See also Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1090 (1 st Cir.1993) (requiring that at a minimum the school district must provide student with “a meaningful, beneficial educational opportunity”), quoting Town of Burlington v. Dep’t of Educ ., 736 F.2d 773, 789 (1st Cir. 1984), aff’d 471 U.S. 359 (1985).
17
20 USC 1400(d)(4) (purposes of this title are . . . to assess, and ensure the effectiveness of , efforts to educate children with disabilities” (emphasis added); North Reading School Committee v. Bureau of Special Education Appeals, 480 F.Supp.2d 479, 489 (D.Mass. 2007 ) (educational program “must be reasonably calculated to provide effective results and demonstrable improvement in the various educational and personal skills identified as special needs”), quoting Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1090 (1 st Cir. 1993) and Town of Burlington v. Dep’t of Educ., 736 F.2d 773, 788 (1 st Cir. 1984), aff’d 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985).
18
602 CMR 28.05(4)(b) (“The Team shall carefully consider the general curriculum, the learning standards of the Massachusetts Curriculum Frameworks, the curriculum of the district, and shall include specially designed instruction or related services in the IEP designed to enable the student to progress effectively in the content areas of the general curriculum.”). See also 603 CMR 28.02(9) ( “ An eligible student shall have the right to receive special education and any related services that are necessary for the student to benefit from special education or that are necessary for the student to access the general curriculum.”).
19
MGL c. 71B, s. 1 ( term “special education” defined to mean “educational programs and assignments including, special classes and programs or services designed to develop the educational potential of children with disabilities.”); 603 CMR 28.01(3) ( purpose of regulations as “to ensure that eligible Massachusetts students receive special education services designed to develop the student’s individual educational potential.”).
20
Rowley , 458 U.S. at 202.
21
Id .
22
Lessard v. Wilton Lyndeborough Cooperative School Dist. , 518 F.3d 18, 29 (1 st Cir. 2008) (“levels of progress must be judged with respect to the potential of the particular child. So here: while the reported progress is modest by most standards, it is reasonable in the context of Stephanie’s manifold disabilities and low IQ [citation omitted]”). See also Hunt v. Bureau of Special Education Appeals , 109 LRP 55771, CA No. 08-10790-RGS (D.Mass. 2009) (“School districts provide a FAPE by designing and implementing an IEP ‘reasonably calculated’ to insure that the child receives meaningful ‘educational benefits’ consistent with the child’s learning potential” citing Rowley ); 603 CMR 28.02(17) (“ 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 student, and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district.”)
23
Roland M. v. Concord Sch. Comm., 910 F.2d 983, 992 (1st Cir. 1990) (internal quotations omitted).
24
Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1086 (1st Cir.1993) (internal quotations omitted), quoting Burlington v. Department of Educ., 736 F.2d 773, 788 (1st Cir.1984), aff’d, 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985) .
25
See Susan N. v. Wilson Sch. Dist ., 70 F.3d 751, 762 (3 rd Cir. 1995) (after-acquired evidence “may be considered only with respect to the reasonableness of the district’s decision at the time it was made.”)
26
Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 383 (2d Cir.2003 ) (grades and test scores may qualify as objective evidence to evaluate the adequacy of an IEP that has purportedly failed to address a prior IEP’s alleged shortcomings); Roland M., 910 F.2d at 991 (“actual educational results are relevant to determining the efficacy of educators’ policy choices”). See also Town of Burlington v. Department of Educ. for Com. of Mass . , 736 F.2d 773, 790 (1 st Cir. 1984), aff’d 471 U.S. 359 (1985) (“additional evidence” submitted subsequent to the close of the administrative hearing may include expert testimony for the purpose of “ bringing the court up to date on the child’s progress from the time of the hearing to the trial”).
27
20 USC 1412 (a)(10)(C)(ii); Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 370 (1985).
28
E.g., Florence County School District Four v. Carter , 510 U.S. 7, 16 (1993); School Union No. 37 v. Ms. C. 518 F.3d 31, 34 (1 st Cir. 2008) (“Reimbursement is an equitable remedy”); Diaz-Fonseca v. Commonwealth of Puerto Rico , 451 F.3d 13 (1 st Cir. 2006); Roland M. v. Concord Sch. Comm., 910 F.2d 983, 999 (1st Cir. 1990); School Committee of Burlington v. Department of Education of Mass., 471 U.S. 359, 374 (1985); Rafferty v. Cranston Pub. Sch. Committee , 315 F.3d 21 (1st Cir. 2002), Roland M. v. Concord Sch. Comm. , 910 F.2d 983, 999 (1st Cir. 1990).
29
Schaffer v. Weast , 546 U.S. 49, 62(2005) (burden of persuasion in an administrative hearing challenging an IEP is placed upon the party seeking relief; a party who has the burden of persuasion “ loses if the evidence is closely balanced” ).
30
20 USC 1414(d)(1)(A)(i)(I)-(III); Honig v. Doe, 484 U.S. 305, 311-12 (1988) ; Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 182 (1982).
31
20 USC 1412 (a)(10)(C)(ii); Florence County Sch. Dist. Four v. Carter , 510 U.S. 7, 11-13 (1993); Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 370, 373-74 (1985); Diaz-Fonseca v. Puerto Rico , 451 F.3d 13, 31 (1 st Cir. 2006).
32
Forest Grove Sch. Dist. v. T.A ., 129 S.Ct. 2484 (2009).
33
34 CFR 300.300(b) (italics, bold, and underlined supplied).
34
73 Fed. Reg. 93, p. 27691, first column (May 13, 2008).
35
20 USC §1414(d)(1)(A)(i)(I)-(III); Honig v. Doe, 484 U.S. 305, 311-12 (1988) ; Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 182 (1982).
36
20 USC § 1414(a)(1)(D)(ii)(III) (emphasis supplied). These provisions were enacted by Congress as part of IDEA 2004, effective July 1, 2005. No comparable provisions were part of the IDEA prior to July 1, 2005.
37
73 Fed. Reg. 231, p. 73012, 2 nd column (December 1, 2008) (concluding that if a student is determined eligible but parents refuse to provide consent for initial services, this student “should not be treated any differently in the child find process than any other child”).
38
20 U.S.C. § 1412(a)(10)(A)(ii); 34 CFR § 300.131.
39
20 USC § 1412(a)(3); 34 CFR § 300.111.
40
Amann v. Stow School System , 982 F.2d 644, 651 (1 st Cir. 1992).
41
Id .
42
34 CFR § 300.140; 34 CFR § 300.145 (“Sections 300.146 [requiring the provision of special education and related services in conformance with an IEP] through 300.147 apply only to children with disabilities who are or have been placed in or referred to a private school or facility by a public agency as a means of providing special education and related services.”).
43
603 CMR 28.03(1)(e)2.
44
Administrative Advisory SPED 2007-2: IDEA-2004 and Private School Students (Updated July 2008) (footnote omitted), available at: http://www.doe.mass.edu/sped/advisories/07_2.html
45
See footnotes 8 and 9, and accompanying text, above.
46
See, e.g., MM ex rel. DM v. School Dist. of Greenville County , 303 F.3d 523 (4 th Cir. 2002) ; Maine School Administrative Dist. No. 56 v. Ms. W . , 2007 WL 922252 ( D.Me. 2007).
47
In Re: Marblehead Public Schools , BSEA # 00-1620, 4 LRP 9918 (2001); Chris A. v. Stow Public Schools , BSEA # 90-1132 (1990).
48
See C.G. ex rel. A.S. v. Five Town Community School Dist. , 513 F.3d 279, 288 (1 st Cir. 2008) ( parent’s unreasonable actions, which caused the IEP process not to be completed, may justify a denial of reimbursement under the IDEA); Roland M. v. Concord Sch. Comm ., 910 F.2d 983, 995 (1 st Cir. 1990) (noting “parents’ studied lack of cooperation with ongoing attempts to develop the 1987-88 IEP”).
49
Sudbury also relies on Massachusetts regulations that provide that a school district may not provide any special education services if a parent never agrees to accept any such services and that a school district may not seek a due process hearing on this issue. See 603 CMR 28.07(1)(a) and (b); 603 CMR 28.08(3)(c). However, the Massachusetts regulations do not address the issue of Sudbury’s responsibility to propose an IEP and offer services subsequent to a parent’s rejection of services.
50
I note that the concerns expressed by Dr. Helmus, Dr. Pliner and Ms. Shubow are not new. Since May 2006, it has been recommended that Student be placed within a substantially-separate educational program where all of his classes would be taught by special education teachers in small classes (6 to 8 children). This evaluation report was provided to Sudbury during a meeting between Parents and Ms. Dean on November 3, 2006. Testimony of Parent, Dean; exhibit S-24 (page 5) (“[i]n the absence of this level of intensive support, I would view him as a child who is at high risk not only for lack of academic progress but also for growing emotional distress”).
51
Illustrative of the testimony of Sudbury staff regarding their opinion of the appropriateness of this program for Student are the testimony of Ms. Diette, the Sudbury school psychologist and team chairperson who evaluated Student (see tr. vol. II, pp. 363-364) and Ms. Deneen, the regular education science teacher who would have taught Student in 6 th grade (see tr. vol. II, pp. 276-277).
52
I agree with Sudbury that for Parent to claim prospective relief, she would have had to request, as part of her relief, that Sudbury propose an IEP prospectively placing Student at Carroll. As discussed within footnote 1, above, Parent had opportunities to do so, but did not until the first day of the hearing.
53
See Diaz-Fonseca v. Puerto Rico , 451 F.3d 13 (1 st Cir. 2006) ( “ Under normal IDEA principles, Diaz is thus not entitled to be reimbursed for educational expenses that she has yet to pay.” ).
54
20 USC 1412 (a)(10)(C)(ii); Florence County Sch. Dist. Four v. Carter , 510 U.S. 7, 11-13 (1993); Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 370, 373-74 (1985); Diaz-Fonseca v. Puerto Rico , 451 F.3d 13, 31 (1 st Cir. 2006).
55
Florence County Sch. Dist. Four v. Carter , 510 U.S. 7, 13-14 (1993) (private school need not necessarily meet state educational standards or be state-approved, and need not meet federal statutory definition of FAPE); Doe v. West Boylston School Committee , 4 MSER 149, 161 (D.Ma. 1998) (Massachusetts FAPE standards need not be met for private placement to be appropriate).
56
Id. at 12-13.
57
Id . at 11. See also Mr. I. v. Maine School Administrative District No. 55 , 480 F.3d 1, n.22 (1 st Cir. 2007); Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26 (1st Cir.2002).
58
Mr. I. v. Maine School Administrative District No. 55 , 480 F.3d 1, 24, 25 (1 st Cir. 2007) (internal quotations and citations omitted; emphasis in original).
59
See Rafferty v. Cranston Public School Committee , 315 F.3d 21 (1 st Cir. 2002) ( even if the child makes academic progress at the private school, “that fact does not establish that such a placement comprises the requisite adequate and appropriate education”).
60
See Mr. I. v. Maine School Administrative District No. 55 , 480 F.3d 1, 25 (1 st Cir. 2007) ( private school was not appropriate “where [student] has remained for more than two full academic years, simply does not provide the special education services that [student’s] mental health professionals have prescribed”).
61
Ms. Dean observed Student’s English language arts class and math class in the fall of 2009. Ms. Dean raised several concerns regarding what she observed (for example, Student was not engaged in the English class at the same level as the other students and there was noise in each room that could have been distracting) but did not rebut the testimony of Parents’ witnesses. Ms. Dean also testified that currently, Sudbury is funding students at Carroll School in the 3 rd , 5 th and 6 th grades.
62
In reviewing this information, it is important to keep in mind that the school years in question are 2008-2009 and 2009-2010. Part of Sudbury’s argument relies upon changes in test scores between May 2005 and May 2006, but progress (or lack of progress during this timeframe) has no relevance to the instant dispute.
63
Over the course of the evidentiary hearing, Sudbury made a number of objections to my questions of Parent’s witnesses, including Carroll School staff who testified regarding Student’s academic program and progress. Sudbury’s objections were generally overruled without explanation. I respond briefly now.
BSEA hearing officers are bound to be impartial. Even the appearance of partiality is strongly prohibited. 803 CMR 28.08(5)(c); Massachusetts Code of Judicial Conduct, Canon 2A. BSEA hearing officers also have a duty to protect the parties’ rights at hearing, and to render a decision that is “fair” to each party. 603 CMR 28.08(5)(c). Consistent with these principles, an adjudicator may properly question a witness regardless of whether a party is pro se . Commonwealth v. Haley , 363 Mass. 513, 519 (Mass. 1973). “ In all cases, including those with self-represented litigants, a judge has the discretion to ask questions of witnesses to clarify testimony and develop facts … [and to] use questions to fill a gap in the evidence ….” Cynthia Gray, Reaching Out or Overreaching: Judicial Ethics and Self-Represented Litigants , published by the American Judicature Society and the State Justice Institute, at 2, 55 (2005), available at http://www.ajs.org/prose/pdfs/Pro%20se%20litigants%20final.pdf. The intent of this questioning is not to give an unfair advantage to a party, but rather to decrease the likelihood that any party will lose a meritorious claim simply because of limited litigation abilities. Id . at 2. See also Frank M. Coffin, The Ways of a Judge – Reflections from the Federal Appellate Bench , at 134 (1980) (“Much of the work of a court, its judges and law clerks, is to see to it that a party does not lose because of the poor work of the lawyer.”). Equally important, a BSEA hearing officer has a statutory responsibility to develop an evidentiary record sufficient to determine appropriate special education services for a student. See 20 USC § 1415(f)(3)(E)(i) (special education hearing officer’s decision “shall be made on substantive grounds based on a determination of whether the child received a free appropriate public education”).
Parent called witnesses who have taught Student, who are familiar with his educational program at Carroll School, or who have evaluated Student. These witnesses had knowledge and information essential to Parent’s claims and necessary to my understanding of Student’s educational needs and how they should be met. Yet, repeatedly, Parent, who is pro se , faltered in her ability to ask relevant questions of these witnesses, and at some of these times, I asked questions of Parent’s witnesses in accordance with the above-stated principles.
64
E.g., In Re: Westfield Public Schools , BSEA # 08-6047, 14 MSER 208 (MA SEA 2008); In Re: Sharon Public Schools , BSEA # 06-1557, 106 LRP 53041, 12 MSER 252 (MA SEA 2006); In Re: Sudbury Public Schools , BSEA # 05-4726 and 05-4827, 106 LRP 287, 11 MSER 260 (MA SEA 2005).
65
In several decisions interpreting this statutory language, the First Circuit has upheld a hearing officer’s determination that reimbursement awards should be denied because of failure to provide proper notice. In its written closing argument, Sudbury relies upon these decisions. See Ms. M. v. Portland School Committee , 360 F.3d 267 (1 st Cir. 2004); Greenland School District v. Amy N ., 358 F.3d 150 (1 st Cir. 2004); Rafferty v. Cranston Public School Committee , 315 F.3d 21 (1 st Cir. 2002). However, neither in these cases nor in any other case cited by Sudbury has the First Circuit denied or, in any way, limited the discretionary authority of the hearing officer to determine whether, or not, a reimbursement award should be reduced or denied as a result of failure to provide notice. Recently, the Supreme Court noted that “courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant-for instance, if the parents failed to give the school district adequate notice of their intent to enroll the child in private school.” Forest Grove School Dist. v. T.A . , 129 S.Ct. 2496 (2009). Under the statutory language quoted above, a hearing officer has the identical authority as a court to reduce reimbursement awards.
66
See Diaz-Fonseca v. Commonwealth of Puerto Rico , 451 F.3d 13 (1 st Cir. 2006) (parent’s claim for reimbursement for expenses for private educational services involves an equitable remedy).
67
Roland M. v. Concord Sch. Comm., 910 F.2d 983, 994-95 (1st Cir. 1990).
68
Forest Grove School Dist. v. T.A . , 129 S.Ct. 2484 (2009).
69
Id .