COMMONWEALTH OF MASSACHUSETTS
Division of Administrative Law Appeals
Bureau of Special Education Appeals
In Re: Weymouth Public Schools
BSEA # 11-2663
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 on January 4, 2011 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:
Student’s Father
Jaime Murphy Teacher, South Shore Stars Pre-School
Bobbie London Social Worker, South Shore Stars Pre-School
Elizabeth Szilassy1 Speech-Language Pathologist, South Shore Hospital
Christopher Kone Speech-Language Pathologist, Weymouth Public Schools
Kathleen May School Psychologist, Weymouth Public Schools
Theresa Skinner Administrator of Special Education, Weymouth Public Schools
Colby Brunt Attorney for Weymouth Public Schools
The official record of the hearing consists of documents submitted by the Parents and marked as exhibits P-1 through P-10; documents submitted by the Weymouth Public Schools (Weymouth) and marked as exhibits S-1 through S-9; and approximately one day of recorded oral testimony and argument. As agreed by the parties, oral closing arguments were made at the end of the Hearing day on January 4, 2011, and the record closed on that date.
INTRODUCTION
The case presents the question of whether the speech-language services proposed for Student by Weymouth of a half hour, twice per week are sufficient to afford Student a free appropriate public education, and whether Weymouth must provide transportation to those services.
Student attends a private pre-school program, and Weymouth provides the speech-language services at a nearby public elementary school. Parents seek speech language services for a total of two hours (rather than one hour) per week and further seek transportation between the pre-school program and the elementary school for purposes of Student’s accessing the speech-language services. Weymouth takes the position that the amount of proposed speech-language is appropriate for Student and that, as a matter of law, Weymouth is not responsible to provide Student with transportation because she does not have a transportation-related disability. For the reasons explained below, I have determined that the speech-language services should be increased to 45 minutes, twice per week and that Weymouth bears responsibility for transportation.
ISSUES
The issues to be decided in this case are the following:
1. Is the IEP most recently proposed by the Weymouth School District reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment?
2. If not, should speech-language services be increased?
3. Is Weymouth responsible to provide transportation to and from the place where the speech-language services are provided?
FACTS
Student lives with her Parents in Weymouth, MA. She is four years old and attends the South Shore Stars Pre-School at private expense. This year is Student’s second year at the South Shore Stars Pre-School. Student attends pre-school for eight hours per day, five days per week. Testimony of Father, Murphy.
The only special education or related services being provided or proposed by Weymouth are speech-language services for a half-hour, twice each week. Weymouth has not provided or proposed transportation to the speech-language services. Instead, Mother has brought Student from pre-school to the public elementary school where the speech-language services are provided, and then returns Student to pre-school. Testimony of Father; exhibit S-1.
Student’s cognitive abilities and receptive language are within the normal range. She is quiet and shy. She has a good sense of humor. Testimony of Father, London, Murphy; exhibits P-8, P-9.
Student has substantial deficits regarding articulation and expressive language. These are likely caused in substantial part by her difficulty calling up words from long-term memory into working memory. Testimony of Kone, Szilassy; exhibits P-7, S-3.
Weymouth first conducted a speech-language evaluation on September 15, 2009. The evaluation concluded that Student had limited English proficiency (she speaks Arabic with her Parents) but did not have a language deficit. She was determined not eligible for special education. Testimony of Kone; exhibit S-2.
Weymouth conducted a second speech-language evaluation on September 15, 2010, which concluded that Student had expressive language weaknesses and would benefit from speech-language services. An IEP was proposed for the period October 13, 2010 to October 12, 2011, pursuant to which Student would receive speech-language services for a half hour, twice per week. No transportation services were included within the IEP. Apparently, Parents intended to accept the speech-language services but otherwise reject the IEP, but because of communication misunderstandings, the speech-language services from Weymouth did not commence until December 2010. Testimony of Father, Skinner, Kone; exhibits S-1, S-3.
Student also has a private speech-language pathologist—Elizabeth Szilassy—from South Shore Hospital. Ms. Szilassy conducted a speech-language evaluation of Student on November 19, 2010. The evaluation noted Student’s progress so far in addressing her articulation and expressive deficits. Testimony of Szilassy; exhibit P-9.
As of the date of the evidentiary Hearing on January 4, 2011, Student had received one week (two half-hour sessions) of speech-language services from Weymouth. In addition, Ms. Szilassy had provided Student with four weeks (two half-hour sessions per week) of private speech-language services. Testimony of Father, Szilassy.
DISCUSSION
A. Legal Standard
Student needs only a related service and therefore would not meet the federal special education eligibility standards under the Individuals with Disabilities Education Act (IDEA).2 However, it is not disputed that Student satisfies the more generous Massachusetts eligibility standards,3 thereby bringing her under the purview and protections of both the federal and the Massachusetts special education statutes.4
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.”5 Under FAPE standards, proposed special education and related services must be “reasonably calculated to enable [Student] to receive educational benefits.”6 FAPE must be provided in the least restrictive environment.7
Student’s right to FAPE is assured through the development and implementation of an individualized education program or IEP.8 An IEP must be custom-tailored to address Student’s “unique” educational needs.9
On multiple occasions, the Supreme Court has referenced a FAPE standard of meaningful access to the public schools.10 Similarly, the First Circuit and several Massachusetts federal district court judges have utilized a standard of a meaningful educational benefit.11 At the same time, this “does not imply that a disabled child is entitled to the maximum educational benefit possible.”12 Rather, “[a]n IEP need only supply some educational benefit, not an optimal or an ideal level of educational benefit, in order to survive judicial scrutiny.”13
In the application of these standards, federal case law clarifies that “levels of progress must be judged with respect to the potential of the particular child”14 because “ 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 ”.15 Thus, the “IDEA requires an IEP to confer a meaningful educational benefit gauged in relation to the potential of the child at issue.”16
FAPE is defined by the IDEA to include state educational standards,17 which may exceed the federal floor .18 Massachusetts regulatory standards require that Student’s IEP Team “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.”19 Similarly, the Massachusetts Department of Elementary and Secondary Education-mandated IEP form requires a school district to include within each IEP the specially-designed instruction “necessary for the student to make effective progress” both in the general curriculum and in “other educational needs” including communication and language.20 Massachusetts statutory standards further require that special education services be “ designed to develop the [student’s] educational potential” .21 And, the stated purpose of Massachusetts special education regulations is “to ensure that eligible Massachusetts students receive special education services designed to develop the student’s individual educational potential.”22 In sum, Massachusetts standards require that a proposed IEP include specialized instruction and related services designed to enable Student to make effective progress and develop his or her individual educational potential.
In the instant dispute, Parents have the burden of persuasion that Weymouth’s proposed IEP is not appropriate.23
B. Speech-Language Services
Student’s speech-language deficits have a substantial, negative impact upon her ability to be understood by others and, as a result, her deficits limit her participation in her education and social development. Testimony of London, Murphy, exhibit P-8.
At her pre-school, only the lead teacher (Ms. Murphy) and one or two other students are able to understand Student’s speech. The other 17 children in her pre-school classroom tend to dismiss Student because they cannot understand her. Student tends to rely on Ms. Murphy as an interpreter for purposes of communicating to others her wants and needs. Student’s father often cannot understand Student. Testimony of London, Murphy, Father; exhibit P-8,
Student feels very insecure about her communication abilities and is not able to express her opinions and feelings within the classroom—for example, she is not able to ask any of the 17 children (who cannot understand her) whether they would like to play with her. Student’s expressive language is so limited that it is not unusual for her to have to point to something and grunt to indicate that she wants it. She is at least a year behind her peers regarding expressive language. Testimony of London, Murphy, exhibit P-8.
Student knows that others are not able to understand her, and becomes embarrassed and frustrated as a result of her limited communication abilities. This sometimes results in her leaving the situation or lashing out verbally or physically at other children or teachers. Testimony of London, Murphy, exhibit P-8.
Student’s speech-language deficits have persisted notwithstanding her spending a significant amount time (eight hours per day, five days per week for the past 17 months) at pre-school where the English language is spoken more or less continuously. Testimony of Father, London, Murphy.
Student’s lead teacher, social worker and Parents are understandably very concerned by Student’s continuing failure to develop expressive language skills and the consequences on Student’s social and educational development. They fear that these deficits, if not remediated over the next nine months, will have a particularly strong, negative impact upon Student when she starts kindergarten in the fall. Student’s lead teacher and social worker testified in support of Student’s receiving substantially more speech-language services than the presently-proposed half hour, twice per week. Based upon her working with a large number of children with speech-language deficits, Student’s social worker (Ms. London) recommended that Student receive one hour of speech-language services each school day, and Student’s lead teacher (Ms. Murphy) recommended that Student receive as much speech-language services as possible. Testimony of Father, London, Murphy.
However, although knowledgeable, neither Ms. London nor Ms. Murphy has any particular expertise regarding speech-language deficits and how these deficits may be appropriately remedied through speech-language therapy. In contrast, Weymouth’s speech-language pathologist (Mr. Kone) has a very substantial amount of experience in this area, particularly with young children such as Student. He cautioned that more speech-language services may not necessarily be better for Student. He explained that it would not be unusual for a child such as Student to become frustrated or tired out by too much time spent with an adult focusing, 1:1, on her speech deficits. He opined that with a young child, speech-language services are often “end-loaded”—that is, speech-language services are increased over time after the child becomes fully engaged in speech-language services and is able to tolerate and benefit from more intensive services. Testimony of Kone, London, Murphy.
Student’s current, private speech-language therapist (Ms. Szilassy), who has recently evaluated Student, testified that she has been providing Student with speech-language services for a half-hour, twice per week for one month. Ms. Szilassy stated that Student has demonstrated the ability to imitate and produce sounds, and has made good progress so far. She opined that Student’s prognosis is for continued improvement. Testimony of Szilassy.
During her testimony, Ms. Szilassy first stated that it would be appropriate and sufficient for Student to receive services for a half hour, twice per week. However, she then added to this recommendation by stating that this amount of time could be appropriately increased to 45 minutes, twice per week. She explained that Student is shy and takes time to become engaged, thus limiting the amount of time that effective services can be provided by a therapist; an increase to 45 minutes per session with a speech-language therapist would allow Student to receive, in effect, a half hour of therapy. Testimony of Szilassy.24
Weymouth’s speech-language therapist (Mr. Kone), who conducted Weymouth’s two speech-language evaluations of Student, heard this testimony recommending 45 minutes, twice per week and testified that this amount of services would be “fine” for Student. At the same time, he explained that a “good” speech-language therapist would be able to eliminate this transition period over time.
However, Mr. Kone did not define the term “good” nor did he explain how much time it would take to eliminate the transition period. In addition, there was no evidence regarding the experience or qualifications of the Weymouth speech-language therapist who has begun (and presumably will continue) providing services to Student, and there is no way of knowing whether she meets Mr. Kone’s definition of “good”. Testimony of Kone.
I find the testimony of the two speech-language therapists, who have experience evaluating and/or providing Student with speech-language services, to be persuasive (and in substantial agreement) that in order for Student’s speech and language deficit to be addressed appropriately so that she can make effective and meaningful progress commensurate with her potential, she requires 45 minutes (rather than a half hour) of speech-language services, twice per week.
C. Transportation
I turn to the question of whether Parents are entitled to transportation to and from the speech-language services. Student’s only disability pertains to speech and language. Weymouth correctly points out that Student therefore does not require transportation as a result of her disability. Weymouth argues that because Student does not require specialized transportation, it has no legal obligation to provide transportation to and from Student’s speech-language services. More specifically, Weymouth’s argument proceeds as follows.
The Massachusetts special education regulations state that if a student does not “require[] transportation because of his or her disability in order to benefit from special education”, then Student may qualify only for regular transportation, and “[regular] transportation shall be provided in the same manner as it would be provided for a student without disabilities.” 603 CMR 28.05(5)(a). The regulations continue to explain more specifically that where student is enrolled by his or her parents in a private school and receiving services under 603 CMR 28.03(1)(e) [governing special education provided by public schools to students enrolled in private schools at private expense], such student is not entitled to transportation services unless the school district provides transportation to students without disabilities attending such private school . [603 CMR 28.05(5)(a)(2) (emphasis supplied).]
It is not disputed that Weymouth does not provide transportation to regular education students attending Student’s pre-school. Weymouth points to its transportation policies governing regular transportation, which policies would not allow Student to receive transportation services under the circumstances of the instant dispute. Exhibits S-8, S-9.
Similar to the above standards, under state and federal special education law, Student is entitled to transportation as a related service only if the transportation is “required to assist a child with a disability to benefit from special education.” 34 CFR §300.34; 603 CMR 28.02 (18). As with its argument described above, Weymouth takes the position that Student’s speech and language disability is not a transportation-related deficit and therefore transportation is not required as a related service.
In a case with facts similar to those in the instant dispute, the 11 th Circuit addressed the question of whether a student was entitled to transportation as a related service. As in the instant dispute, the student had no transportation deficits. The issue decided by the 11 th Circuit was whether the school district had an “obligation either to transport [student] three blocks between his private school and the public school that offered the speech therapy he needed or to provide such services at his private school.” Donald B. By and Through Christine B. v. Board of School Com’rs of Mobile County, Ala ., 117 F.3d 1371, 1373 (11 th Cir. 1997).
After carefully considering the Tatro decision (where the Supreme Court observed that the IDEA “makes specific provision for services, like transportation, for example, that do no more than enable a child to be physically present in class”), the 11 th Circuit rejected “the view that a disabled child’s right to related services attaches only when his or her impairment directly causes a unique need for a particular service [emphasis in original].” The court then “conclude[d] that, read in context, the IDEA requires transportation if that service is necessary for a disabled child ‘to benefit from special education,’ 20 U.S.C. § 1401(a)(17), even if that child has no ambulatory impairment that directly causes a ‘unique need’ for some form of specialized transport [emphasis in original].” The court understood the term “special education” to include the speech-language services to which the student was entitled. Id . at 1374-1375.25
For the same reasons explained by the 11 th Circuit, I find that Student is entitled to transportation as a related service if transportation is necessary for her to benefit from her speech-language services.26
There is further support for Student’s right to transportation services within federal regulations pertaining to students who are privately placed in private schools. The regulations provide standards specifically relevant to transportation when, for example, a school district is providing a related service such as speech-language services to a privately-placed student as in the instant dispute.
The regulations provide as follows: “If necessary for the child to benefit from or participate in the services provided under this part [governing special education provided by public schools to students enrolled in private schools at private expense], a parentally-placed private school child with a disability must be provided transportation … [f]rom the service site to the private school, or to the child’s home, depending on the timing of the services.” 34 CFR §300.139(b)(1)(i)(B).27
In its discussion of comments on these regulations, the U.S. Department of Education (DOE) explained that, within the context of the above-quoted regulations (34 CFR §300.139(b)(1)(i)(B)), transportation is not a related services but instead is required because it may be “necessary to enable the child to participate and to make the offered services accessible to the child.”28 DOE further explained this part of the regulations as follows:
If services are offered at a site separate from the child’s private school, transportation may be necessary to get the child to and from that other site. Failure to provide transportation could effectively deny the child an opportunity to benefit from the services that the LEA has determined through consultation to offer its parentally-placed private school children with disabilities.29
When these federal requirements (relevant to transportation as a related service and to special education provided to a student privately placed) are read together, the operative standard is whether Student needs transportation services to benefit from or participate in Student’s speech-language services. This is consistent with core IDEA principles—special education and related services must be provided so that they are “free” to the student and parents,30 and so that they are “effective” for their intended purpose.31 There would be no point in Weymouth’s being required to propose needed speech-language services that Student could not meaningfully access.32
I now return to the 11 th Circuit’s decision where the court considered whether transportation was actually necessary for the student to benefit from the speech-language services to which he was entitled. In determining whether the student was entitled to transportation to cover the three blocks between the student’s private school and the public school where the speech-language services were to be provided, the court wrote as follows:
The only obstacle to Donald B.’s full participation in the special education program at Austin is literally three blocks. In our view, the factors relevant in determining whether a child in this situation needs transportation as a related service include at least: (1) his or her age; (2) the distance he or she must travel; (3) the nature of the area through which the child must pass; (4) his or her access to private assistance in making the trip; and (5) the availability of other forms of public assistance in route, such as crossing guards or public transit. [ Donald B. By and Through Christine B. , 117 F.3d at 1375-1376.]
The court found that transportation from the school district was not required, on the basis of the student’s age (six at the time of the district court order and seven at the time of the circuit court decision), the short travel distance, and the lack of any evidence that these three blocks encompass high crime or high traffic areas that student could not traverse easily. Id .
The facts in the instant dispute are similar but different in one important respect. The distance between Student’s pre-school and the site of the speech-language services at the public elementary school is similarly short—Ms. Skinner testified that there are only four houses between the pre-school and elementary school—but Student is only four years old. Father testified persuasively, and I so find, that because of Student’s young age it is not possible for her to travel independently the short distance between her pre-school and the public elementary school where the speech-language services are provided. Mother, who has been volunteering at the pre-school, has transported Student to the two sessions of speech-language services in December. It is unclear whether or for how long Parents would be willing and able to continue to provide this transportation, and I find that they have no obligation to do so.
For these reasons, I find that Weymouth is responsible for providing transportation to and from the speech-language services,33 unless transportation by Weymouth becomes unnecessary for Student to participate in and benefit from the speech-language services.34
ORDER
The IEP most recently proposed by the Weymouth School District is not reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment. In order to meet this standard, the IEP shall be amended immediately to provide speech-language services of 45 minutes, twice per week.
Weymouth shall provide transportation to and from the place where the speech-language services are provided, as discussed more specifically above.35
By the Hearing Officer,
William Crane
Dated: January 19, 2011
COMMONWEALTH OF MASSACHUSETTS
Division of Administrative Law Appeals
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
Ms. Szilassy testified by telephone.
2
20 USC 1400 et seq .
3
MGL c. 71B.
4
See footnotes 17 and 18.
5
20 USC § 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A); Mr. I. ex rel. L.I. v. Maine School Admin. Dist. No. 55 , 480 F.3d 1, 12 (1 st Cir. 2007) (referencing “broad purpose behind the IDEA: ‘to ensure that all children with disabilities have available to them a free and 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’” citing to 20 USC § 1400(d)(1)(A)).
6
Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 207 (1982). See also Lessard v. Wilton Lyndeborough Cooperative School Dist. , 518 F.3d 18, 23 (1 st Cir. 2008) (“IEP must be individually designed to provide educational benefit to [a particular] handicapped child.”) (internal quotations and citations omitted).
7
The phrase “least restrictive environment” means that “[t]o the maximum extent appropriate, children with disabilities . . . are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” 20 USC § 1412(a)(5). See also 20 US § 1400(d)(1)(A); 20 USC § 1412(a)(1)(A); MGL c. 71B, s. 1; 34 CFR 300.114(a)(2(i) ; 603 CMR 28.06(2)(c).
8
20 USC 1414(d)(1)(A)(i)(I)-(III); Honig v. Doe, 484 U.S. 305, 311-12 (1988) ; Rowley, 458 U.S. at 182.
9
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 , 484 U.S. at 311 (FAPE must be tailored “to each child’s unique needs”); Rowley, 458 U.S. at 181 (FAPE must be “tailored to the unique needs of the handicapped child by means of an ‘individualized educational program’ (IEP)”); Lessard, , 518 F.3d at 23 (referencing the school district’s “ obligation to devise a custom-tailored IEP”); 603 CMR 28.02 (20) (“ Special education shall mean specially designed instruction to meet the unique needs of the eligible student or related services necessary to access the general curriculum and shall include the programs and services set forth in state and federal special education law.”).
10
Cedar Rapids Community School Dist. v. Garret F. ex rel. Charlene F ., 526 U.S. 66, 79 (1999) (IDEA dispute “is about whether meaningful access to the public schools will be assured”); Irving Independent School District v. Tatro , 468 U.S. 883, 891 (1984) (“Congress sought primarily to make public education available to handicapped children and to make such access meaningful” ) (internal quotations omitted ); Rowley, 458 U.S. at 192 (“in seeking to provide … access to public education, Congress did not impose upon the States any greater substantive educational standard than would be necessary to make such access meaningful”).
11
See Murphy v. Timberlane Regional School Dist . 22 F.3d 1186, 1196 (1 st Cir. 1994) (referencing IDEA standard of a “federal basic floor of meaningful, beneficial educational opportunity”) ; Town of Burlington v. Dep’t of Educ ., 736 F.2d 773, 789 (1st Cir. 1984) (same), aff’d 471 U.S. 359 (1985) ; Dracut School Committee v. Bureau of Special Educ. Appeals of the Massachusetts Dept. of Elementary and Secondary Educ ., 2010 WL 3504012, at *12 (D.Mass. 2010); (using a meaningful education benefit standard to determine appropriateness of transition services); DB v. Sutton, 07-cv-40191-FDS (D.Mass. 2009) ( “meaningful progress … is the hallmark of educational benefit under the [federal] statute”); 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 ) .
12
Lessard , 518 F.3d at 23 (citations omitted). See also Rowley, 458 U.S. at 197, n.21 (“ Whatever Congress meant by an “appropriate” education, it is clear that it did not mean a potential-maximizing education.”).
13
Lessard , 518 F.3d at 23-24 (internal quotations and citations omitted). See also G.D. v. Westmoreland Sch. Dist., 930 F.2d 942, 948 (1 st Cir. 1991) (educational services need not necessarily be “the only appropriate choice, or the choice of certain selected experts, or the child’s parents’ first choice, or even the best choice”).
14
Lessard , 518 F.3d at 29 .
15
Rowley , 458 U.S. at 202.
16
Deal v. Hamilton County Board of Education, 392 F.3d 840, 862 (6 th Cir. 2004) (internal quotations and citation omitted).
17
20 USC 1401(9)(b); Winkelman v. Parma City School Dist. , 550 U.S. 516, 524 (2007) (“education must … meet the standards of the State educational agency”).
18
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]”) .
19
603 CMR 28.05 (4) (b). See also 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).
20
See IEP form mandated for all Massachusetts school districts by the Massachusetts Department of Elementary and Secondary Education, at pages 2 of 8 and 3 of 8, which may be found athttp://www.doe.mass.edu/sped/iep/forms/word/IEP1-8.doc See also exhibit S-1 (describing the specially-designed instruction proposed as “necessary for the student to make effective progress”).
21
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.”). See also MGL c. 69, s. 1 (“paramount goal of the commonwealth to provide a public education system of sufficient quality to extend to all children the opportunity to reach their full potential”).
22
603 CMR 28.01(3).
23
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” ).
24
Student’s lead teacher testified as to Student’s difficulty with transitions, her insecurity regarding her expressive language, and her shyness, all of which would likely present challenges to Student’s easily or quickly engaging with a speech-language therapist. Testimony of Murphy.
25
Two other federal court decisions support the 11 th Circuit’s analysis. See Board of Education of the District 130 Public Schools, Cook County, Illinois v. The Illinois State Board of Education, Mr. and Mrs. L., Individually and as Parents and Next Friends of A.L. , 26 IDELR 724, 26 LRP 4338 (N.D. Ill. 1997) (school district must provide student with transportation from one school to another if necessary for her to access her special education program); Felter v. Cape Girardeau School Dist. , 810 F.Supp. 1062, 1065 (E.D.Mo.1993) (“the attitude that private school children ‘should arrange to show up to receive services’ is inherently suspect” quoting federal policy guidance).
26
I considered but did not find persuasive the BSEA decisions cited by Weymouth. See In Re: Swampscott , BSEA # 99-3434 (1999) (transportation determined by agreement of the parties); In Re: Attleboro , BSEA # 09-6759 (2009) (transportation not required to a location outside the school district).
27
To the extent that these federal standards provide Parents and Student with greater rights than the state standards relied upon by Weymouth (as discussed above), Weymouth must comply with the federal standards. See footnote 18, above.
28
71 Fed. Reg. 156, pp. 46596, 3 rd column (August 14, 2006).
29
Id .
30
See 20 USC § 1400(d)(1)(A) (IDEA was enacted “to ensure that all children with disabilities have available to them a free appropriate public education”) (emphasis supplied).
31
See 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).
32
See Irving Indep. Sch. Dist. v. Tatro, 468 U.S. 883, 891(1984) (Congress enacted the IDEA “primarily to make public education available to handicapped children and to make such access meaningful” ) (internal quotations omitted).
33
Presumably, transportation will be between the pre-school and the public elementary school. Alternatively, Weymouth may be responsible for providing transportation between the public elementary school and Student’s home , depending on the timing of the speech-language services, in accordance with 34 CFR §300.139(b)(1)(i)(B), quoted above in the text.
34
For example, Weymouth need not provide transportation services if (1) Parents are willing and able to voluntarily provide this transportation even though they have no obligation to do so, (2) Parents and Weymouth voluntarily agree to another, appropriate way for Student to travel to and from the speech-language services, or (3) Weymouth finds a way for Student to participate in and benefit from her speech-language services without the need for transportation—for example, Weymouth provides the speech-language services at Student’s pre-school.
35
The instant Decision is not intended to preclude Weymouth from providing the requisite transportation through an adult who would walk with Student between the pre-school and public elementary school.