Arlington Public Schools – BSEA #02-1327

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re: Arlington Public Schools

BSEA # 02-1327

DECISION

This decision is issued pursuant to 20 USC 1400 et seq . (Individuals with Disabilities Education Act), 29 USC 794 (Section 504 of the Rehabilitation Act), MGL chs. 30A (state administrative procedure act) and 71B (state special education law), and the regulations promulgated under said statutes.

A hearing was held on April 23, June 17 and June 18, 2002 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:

Student’s Mother

Sara Poor Speech-language Therapist, Franciscan Children’s Hospital

Caroline Bonk Educational Specialist, Franciscan Children’s Hospital

Kristine Barker Teacher, Arlington Public Schools

Marilyn Bisbicos Director of Special Education, Arlington Public Schools

Nancy Borofsky Attorney for Mother

Joan Stein Attorney for Arlington Public Schools

Amy Parkin Assistant to Arlington’s Attorney

The official record of the hearing consists of documents submitted by Mother and marked as exhibits 1 through 22 (hereafter, Exhibit P-1, etc.); documents submitted by the Arlington Public Schools (hereafter, Arlington) and marked as exhibits 1 through 10 (hereafter, Exhibit S-1, etc.) except for those parts of Exhibit S-8 which are not dated; and approximately seven hours of recorded oral testimony and argument. As agreed by the parties, written closing arguments were due on July 9, 2002, and the record closed on that date.

ISSUE PRESENTED

Is the IEP, proposed by Arlington Public Schools for June 14, 2002 to June 14, 2003 (Exhibit P-18), reasonably calculated to provide Student a free appropriate public education?¹ And, if not, would Mother’s proposed placement at Arlington’s Bishop School meet said standard?

PROCEDURAL HISTORY

In September 2001, Arlington Public Schools (hereafter, Arlington) placed Student into the Hardy School pursuant to an IEP accepted by Father but rejected by Mother (Student’s parents are divorced). Student’s program at the Hardy School is for learning disabled children.

On September 10, 2001, Mother filed with the Bureau of Special Education Appeals (hereafter, BSEA) a Request for Hearing, contesting the placement of Student. Mother took the position that Student’s educational needs can be appropriately met in a regular education classroom with special education supports, and therefore the IEP’s placement of Student into the Hardy School is not the least restrictive environment.

Because Mother requested (and privately paid for) an independent evaluation of Student that would likely be completed in February 2002, Mother asked (and Arlington agreed) that a Hearing on the merits be delayed until March 2002.

On October 26, 2001, Mother filed a Motion for Temporary Relief, taking the position that pending a decision by this Hearing Officer on the merits, the current placement at the Hardy School should be reversed. Mother requested that Student be returned immediately to her previous placement at the Bishop School pending resolution by this Hearing Officer regarding Mother’s claims on the merits.

On November 6, 2001, Arlington filed an opposition to said Motion, arguing that it would be unlawful not to implement the placement proposed by Arlington and agreed to by Father. A Hearing on the Motion began on November 9, 2001 and was completed on November 20, 2001. On December 6, 2001, the Hearing Officer issued a Ruling denying Mother’s Motion.

By agreement of the parties, the Hearing on the merits was postponed until April 23, 2002, and the Hearing began on that date. However, on April 23 rd , the parties engaged in negotiations which resolved various issues regarding the current academic year, with outstanding issues in dispute regarding the 2002-2003 academic year. The Hearing was further postponed until June 17 and 18, 2002 to allow for development of an IEP for the 2002-2003 academic year and then to address any disputed issues through a June Hearing.

PROFILE OF STUDENT AND HER INDIVIDUALIZED EDUCATION PROGRAMS

Student lives with her Mother in Arlington, MA. She is a nine-year old, “adorable” and well-adjusted child who has attended the 3 rd grade at Arlington’s Hardy School during this past school year (2001-2002). She has a learning disability with deficits in expressive and written language. Her cognitive skills are in the average to low-average range. Testimony of Mother, Poor, Barker; Exhibits S-5, P-2, P-3.

The proposed individualized education program (hereafter, IEP) for the period 6/14/2002 to 6/14/2003 calls for Student to participate in reading, language and math instruction in a language-based classroom in Arlington’s Dallin School. She would receive a modified 4 th grade curriculum for science and social studies, and would participate with grade level children for all specials (gym, music, etc.). The service delivery grid for the IEP calls for the following special education services within the general education classroom: academic support by a special education teacher once per week; support in science from the classroom teacher for the duration of the class; and support in social studies from the classroom teacher for the duration of the class. The IEP calls for the following special education and related services in other settings: academic support by the special education teacher five days per week; speech-language services from a speech therapist for 30 minutes, twice per week; occupational therapy from an occupational therapist for 30 minutes, twice per week; and counseling from a counselor once per week. Exhibit P-18. (The IEP does not include certain information – for example, the amount of time of weekly counseling. See part D of the Findings and Conclusions section of this Decision.)

The IEP for the 2001-2002 school year provided for no special education services within the general education classroom and the following special education and related services in other settings: academic support by the special education teacher five days per week (no time period is specified); speech-language services from a speech therapist for 30 minutes, twice per week; occupational therapy from an occupational therapist for 30 minutes, twice per week; and counseling from a counselor for 30 minutes once per week. Exhibits S-6, P-1B.

STATEMENT OF THE EVIDENCE

· Mother testified that she observed her daughter’s classroom at the Hardy School three times during the 2001-2002 school year: May 25, 2002 and twice in September/October 2001. Mother explained in some detail what she observed during the May 25 th visit. She described a number of concerns: during computer lab, Student was left by herself without a computer; the children were disruptive and fidgety; the classroom seemed confusing and distracting; and the children were always working in small groups or independently so that at no time did the teacher address the whole classroom.

Mother testified that she visited the Bishop School on June 10, 2002 and spoke with the teacher who would be responsible for Student were she to attend this school during the 2002-2003 school year. She explained that the teacher showed her the Wilson Reading program that would be used with Student, as well as other materials. Mother stated that in her opinion, Student could receive the same special education services (including Wilson Reading program, speech-language services, assistance from a special education teacher) as she is currently receiving during the 2001-2002 school year.

Mother testified that on the same day as she visited the Bishop School, she visited and observed the classroom at the Dallin School, where Arlington is proposing to place her daughter for the 2002-2003 school year, and spoke with Ms. Montgomery who would be Student’s teacher. Mother testified that Ms. Montgomery generally explained the structure and makeup of what educational services Student would receive at the Dallin School, and that she has 4 th and 5 th grade students (but mostly 5 th graders) in her classroom (ten children in her class next year).

Mother testified that she has reviewed many of her daughter’s papers and is aware of what has been covered in her daughter’s curriculum during this past school year (2001-2002). In her testimony, Mother reviewed Arlington’s curriculum for 3 rd grade regular education children and noted that except for overlap regarding Colonial history, the 3 rd grade curriculum in a regular education classroom would be new material for her daughter.

Mother testified that she believes it will help her daughter to repeat 3 rd grade – she would be one of the smarter children in the class (which Mother believes would be good for her) and she will be able to learn the regular education 3 rd grade curriculum. (Mother noted her concern that her daughter is not accessing the curriculum that would be provided to a regular education student.) Mother also explained that she has discussed this with her daughter and believes that her daughter would not be upset by repeating 3 rd grade. Mother noted that repeating 3 rd grade is her own idea, rather than the recommendation of any other person.

Mother testified that she believes her daughter has made academic progress during this school year (and is currently doing well) regarding reading; she is not certain as to what progress her daughter has made in math, social studies and science; and she believes that her daughter has done well in all of her specials (music, art, etc.).

Mother testified that she has had her daughter tutored at the Lexington Learning Center where Student has also been tested on two occasions.

Mother testified that she has reviewed the most recently proposed IEP (for the 2002-2003 school year) and has the following concerns: several parts of the IEP should be changed to reflect Student’s current needs and the progress she has made; and Student’s most recent evaluations by Franciscan Children’s Hospital should be reflected in the IEP.

Mother testified that although she believes that her daughter has a learning disability, the disability is not so severe as to require a language-based classroom. Mother therefore stated her disagreement with Arlington’s proposed placement of her daughter into a language-based classroom for language arts and math, taking the position that Student should be mainstreamed (with accommodations and supports, as well as a pull-out for Wilson Reading program) for these subjects. She also indicated that she did not see the need for occupational therapy and was unsure as to whether her daughter needs counseling, although she agreed that it would be helpful for her daughter to be in a social group (for example, during lunch). She also explained that she was not sure whether any consultation services should be included in the service delivery grid. Mother also testified that she believes it would be best for her daughter to attend the Bishop School, which would be the school closest to her home.

Mother testified that she does not have any particular expertise regarding education or special education, other than what she has learned as a parent of three children (two of whom receive special education services), although she noted that she has read material on the website of the Massachusetts Department of Education.

· Kristine Barker testified that she has been employed this past school year by Arlington as the primary learning center teacher at the Hardy School for children in 2 nd , 3 rd , and 4 th grades. Her prior teaching experience (Sept. 1997 – August 2001) is with older children. She is certified as an elementary school teacher (grades 1 through 6) and as a special education teacher (pre-kindergarten through grade 9). Exhibit S-9 (her resume).

Ms. Barker testified that in her classroom at the Hardy School, there are eleven children, with two teachers; that typically not all of the children are in the classroom at the same time, and often the children are working in small groups of 3 or 4; that her classroom is grouped by need (children who are working at the same level), rather than by grade; that within the classroom, a large repertoire of teaching strategies and approaches are used so that the instruction can be adjusted to the needs of the particular children who are being taught; and that a “scaffolding” approach is used so to build on what has been learned by a student.

Ms. Barker testified that Student is one of the children in her class; that Student is comfortable, easily engaged, happy, well-adjusted and quiet (but asserts herself appropriately). She noted that Student’s educational “output” has been appropriate, and that Student, with respect to her abilities, is generally in the middle of the class. Ms. Barker believes that Student is working very hard and doing the best that she can at school. Ms. Barker testified that because Student is working hard, doing the best that she can, Ms. Barker would not recommend retention as it would likely be viewed, by Student, as punitive. Ms. Barker recommended that rather than retention, she should advance to the next grade level and school work should be taught to the Student’s individual level.

Ms. Barker testified that Student receives math and language arts in a language-based, self-contained classroom, and is mainstreamed for her specials (art, music, etc.), science and (after April 23, 2002) social studies. She stated that Student has a learning disability that manifests itself in language (that is, a language-based disability), with difficulty in reading and written language, and that this disability impacts Student with respect to every academic subject area that involves reading or writing.

Ms. Barker testified as to Student’s strengths and weaknesses, and noted her progress this school year with respect to reading comprehension and decoding, starting the school year at the primer to early 1 st grade level and currently at the mid-2 nd grade level approximately. Ms. Barker opined that the teaching techniques within the language-based classroom this year have helped Student because they are individualized to address her particular educational needs, allowing Student to move on to the next educational task or skill area when she is ready to do so. Ms. Barker also noted Student’s progress in math this school year, with Student currently working at the 3 rd grade level with respect to addition and subtraction, and the 2 nd grade level in other areas of math.

Ms. Barker testified that based on Student’s current school performance, Ms. Barker does not believe that Student is ready for a regular education classroom with respect to language arts and math, and that Student would continue to benefit from a language-based classroom regarding these subject matters. Ms. Barker stated that there are six children from her classroom (including Student) who are scheduled to attend Ms. Montgomery’s classroom at the Dallin School. She noted that Student’s abilities are “middle of the road” as compared to these children; three of these children (including Student) would be 4 th graders and three would be 5 th graders at the Dallin School.

Ms. Barker testified that she has spoken with Ms. Montgomery on several occasions, has “some” familiarity with her classroom, and believes that the instructional techniques and strategies used by Ms. Montgomery are similar to those used by Ms. Barker. Ms. Barker opined that Student would be appropriately placed in Ms. Montgomery’s classroom because Student continues to need and would continue to benefit from the instructional techniques and strategies used in a language-based classroom for language arts. She also noted that with respect to math, as the work becomes more advanced, the problems involve more language (“story problems”), so that Student would continue to benefit from a language-based classroom.

· Marilyn Bisbicos testified that for the past eleven years, she has been the Director of Special Education and Support Services for Arlington. She explained that she has a Masters Degree in special education and a Doctorate in educational leadership, and that she has taught special education for six years. She noted that the responsibilities in her current position include managing/supervising the special education services in Arlington, including the classrooms, transportation, contracted services, and in-service training.

Dr. Bisbicos testified that she chaired the April 5, 2002 Team meeting for Student, the purpose of which was to review and consider the independent evaluation performed by the multidisciplinary team at Franciscan Children’s Hospital. She explained that she found this evaluation to be thorough, as well as compatible with Arlington’s assessments of Student approximately a year earlier.

Dr. Bisbicos testified that Arlington has been providing and proposes to continue to provide to Student for the next school year (through the most recent IEP) the specialized services proposed by the Franciscan Children’s evaluations with respect to language arts and math – that is, daily instruction for ninety minutes utilizing a multisensory, systematic language approach for Student’s reading and language arts instruction, and daily instruction for forty-five minutes using a multisensory approach for math instruction, as recommended in the Education Evaluation by Franciscan Children’s Hospital (Exhibit P-4, pages 6 and 8).

Dr. Bisbicos testified that the only way that she could understand Franciscan’s recommendations regarding an inclusion class is that Student’s other subjects should be taught in the mainstream, which is what Arlington is proposing. She explained that she believes this approach would best meet Student’s needs as Student remains below her age peers regarding language skills and is in need of a language-based classroom, but can be mainstreamed in all subjects other than math and language arts. She also noted that Student is socially appropriate for her age.

Dr. Bisbicos testified that the proposed placement for Student at the Dallin School would provide strategies and instruction techniques similar to what have been provided Student this school year. She explained that Student also continues to need occupational therapy to assist with integration of skills already learned, and that counseling would be provided to Student for the purpose of working on social skills through a friendship group (perhaps at lunch) for thirty minutes each week.

Dr. Bisbicos testified that the proposed IEP erroneously does not include fifteen minutes, once each week for occupational therapy consultation and for speech-language consultation, and she recommended that these consultation services be added to the IEP. She also noted that the IEP should be clarified to indicate that a special education aide is providing inclusion support in science and social studies; with respect to specialized services labeled as “academic support”, the duration could be stated more specifically as 135 minutes (ninety minutes for language arts and forty-five minutes for math); and the duration for counseling on the IEP should be listed as thirty minutes, once per week.

Dr. Bisbicos testified that Student would likely be overwhelmed in 4 th grade language arts and math classes taught to regular education children since she would not understand the material and instruction, and she needs the teaching style and techniques offered in a language-based special education class in order to make progress. Dr. Bisbicos noted that language arts is Student’s weakness, so she should not be placed in a language arts class where she has to struggle; rather her education should prioritize the development of skills in this area. Dr. Bisbicos opined that without the development of these skills, Student is likely to flounder in all academic areas involving reading or writing. She noted that, for these reasons, skill building is more important for this child at this time than curriculum content.

Dr. Bisbicos testified that Arlington would not be able to deliver the requisite special education program to Student at the Bishop School – at Bishop, the special education services provided to Student would be disjointed and lack the necessary structure. She explained that for these reasons, Arlington was proposing placement at Dallin (where an appropriate program for Student is in place) rather than at Bishop.

Dr. Bisbicos testified that she has expertise (including reading research articles) and experience regarding the issue of retention. She believes that in general it is not helpful to a child to be retained. She explained that although there may appear to be short-term gains (such as the child receiving higher grades the first year because of the familiarity of the material), within two years after retention, there is likely to be no educational benefit to the child (the child does not necessarily catch up in areas where there are deficits), and the child will likely feel punished by the retention. She concluded that a child benefits not from retention but rather from adapting the educational program to meet the needs of that particular child, and this is what she recommends for Student.

· A Multidisciplinary Evaluation of Student was done by Franciscan Children’s Hospital and Rehabilitation Center in Boston, MA on January 15, 16 and 22, 2002 at the request of Mother. The Psychological Evaluation revealed that cognitively, on the Wechsler Intelligence Scale for Children, Student functioned overall in the low-average range of intellectual functioning (full scale IQ of 80) with verbal skills commensurate with performance (nonverbal ) abilities. The evaluation report indicated weaknesses on tasks of verbal reasoning in which increased levels of verbal expression were required, she had difficulty with sequencing and attention to visual detail, and she demonstrated both inter- and intra-subtest scatter across domains that is often associated with a learning disorder. The report further concluded that the evaluation revealed no major psychiatric or emotional concerns; although Student is displaying some level of sadness and anxiety (likely due to her parents’ divorce and related issues), she generally appeared to be functioning well. Exhibits P-2, P-3.

· An Educational Evaluation (part of Franciscan Children’s January 2002 Multidisciplinary Evaluation of Student) revealed that Student has not yet acquired phonemic awareness which is necessary for reading success; she recognized words at a late 1 st grade level; she was unable to read passages at a preprimer level; and her spelling is at the top of the below average range. The evaluation report further noted that her math computation skills indicate that she is functioning at a late 1 st grade level. Exhibits P-2, P-4.

This evaluation recommended daily instruction for ninety minutes utilizing a multisensory, systematic language approach for all of Student’s reading and language arts instruction, utilizing 1:1 instruction or a small group of no more than three children of similar cognitive and reading needs; and daily math instruction for forty-five minutes using a multisensory approach that simultaneously uses visual, auditory, kinesthetic and tactile modes and instruction in a 1:1 setting or small group of no more than three children. Exhibits P-2, P-4.

· Sara Poor testified that she has been a pediatric speech-language therapist for the past three years at Franciscan Children’s Hospital; prior to this employment, she worked for six months as a speech-language therapist at an early intervention program. She noted that she received her Masters Degree in speech-language pathology in January 1998.

Ms. Poor testified that she wrote the Speech-Language Evaluation (part of Franciscan Children’s January 2002 Multidisciplinary Evaluation of Student) which revealed mildly reduced receptive language skills, low average to moderately reduced expressive language skills, above average to severely reduced integrative language skills, and low average to mildly reduced auditory memory skills. The evaluation report also noted that Student has articulation errors for the “SH” sound. Exhibits P-2, P-5.

Ms. Poor testified that in her opinion, Student would benefit from speech-language therapy for 30 to 45 minutes (depending on the schedule of the school) twice each week, either 1:1 or in a small group (although she noted that the articulation therapy is best done 1:1). She explained that in the six months since her testing, Student’s need for these services would not likely have changed. Ms. Poor stated that on the basis of her testing alone, she is not able to determine whether Student has a learning disability, nor does she have any opinions as to the relevance of her findings on Student’s reading. She explained that she does not have expertise relevant to education other than as a speech-language pathologist.

Ms. Poor testified that in her report she noted the Franciscan Team’s recommendation (with which she agreed) that Student be in an inclusion class. She noted that advantages of being in such a class would include Student’s learning from typical peers. However, she also stated that on the basis of her evaluation alone, she would not be able to reach any conclusions regarding the appropriateness of an inclusion class for Student.

Ms. Poor testified that she reviewed the previous speech-language evaluation that was performed by Arlington staff approximately a year earlier than her evaluation of Student; she found no contradictions or discrepancies between the two evaluations.

Ms. Poor testified that it would be important for there to be weekly consultation by a speech-language therapist to the classroom teachers in order to ensure carry-over of what is being taught by the therapist.

· An Occupational Therapy Evaluation (part of Franciscan Children’s January 2002 Multidisciplinary Evaluation of Student) concluded that Student’s visual motor and visual perceptual skills were poor to fair. Exhibits P-2, P-6.

· A Physical Therapy Evaluation (part of Franciscan Children’s January 2002 Multidisciplinary Evaluation of Student) could not be completed (Mother needed to leave early) but subtests on formal gross-motor testing were completed and indicted minor delay in some advanced skills. Exhibits P-2, P-7.

· The Summary of Evaluation Team Conference (from the Franciscan Children’s January 2002 Multidisciplinary Evaluation of Student) concluded that, taken together, the test results and available background information indicated that Student has a multi-modality learning disorder with deficits in both language and visual perceptual skills. The multidisciplinary evaluation team agreed to the following recommendations for Student:

1. Student can make effective progress in an inclusion classroom with a maximum of 15 children. The classroom should be co-taught by a regular as well as a certified special education teacher. The class should contain children who are “at Student’s grade level”² and who will be appropriate behavior role models for her.

2. Within the inclusion classroom setting, Student should receive the following additional services:
a. Daily small group reading instruction with a maximum of three children in multisensory systematic reading program.

b. Daily small group math in her classroom setting.

c. Speech and language service two time a week for 30 minutes as well as consultation and classroom accommodation.

d. Occupational therapy one time per week for 30 minutes for handwriting and keyboarding as well as classroom accommodations and consultation.

e. Adaptive physical education.

3. The multidisciplinary evaluation team further recommended:
a. Participation of Student in a group for children of divorced parents.

b. Continuation of Student’s dance classes.

c. A 1:2 visit consultation with a physical therapist to update her home program regarding range of motion for her feet and ankles.

d. Completion of a formal gross-motor assessment.

e. Medical consultation due to her failing her hearing screening.

f. Evaluation by an audiologist in three months.

Exhibit P-2.

· A Reading Report for Student, dated April 21, 2002, from the Lexington Learning Center indicates that Student met with a certified teacher on April 8 and 11, 2002 to evaluate her reading skills, using the Rigby PM Benchmark kit. On the Rigby system, Student read with 95% accuracy on level 13, 1 st grade; she received a score of 87.5% at level 15, late 1 st grade; she received a score of 93% at level 17, early 2 nd grade; she received a score of 93% at level 19, early 2 nd grade. The Report further notes that Student had good comprehension skills on the books used; however, she had difficulty attacking words that she did not know and lacked phonics skills to attempt these words. Exhibit P-11.

· A Reading Report for Student, dated June 13, 2002, from the Lexington Learning Center indicates that Student was provided an “informal assessment” on that date for one hour, which revealed that Student was able to read successfully at all levels of 2 nd grade reading. The report concludes that “[i]t is our opinion that [Student] would be successful as a third grader for the 2002-2003 school year based on these results.” Exhibit P-17.

· An Arlington Speech and Language Progress Report dated 5/29/02 by Kerna Popivchak, MS, CCC-SLP, explained that Student has been attending small group speech and language sessions twice per week for thirty minute sessions since September 2001. The Report states that the focus of the therapy has been on overall expressive communication, and Student has made “good progress with expressing herself and ideas in longer sentences orally.” The Report describes more specifically Student’s strengths and weaknesses and recommends that she continue in this type of learning environment next school year, given her “positive adjustment to the smaller, language-based classroom.” The Report further recommends that Student continue to receive speech and language services for two, thirty minute sessions to address her articulation, receptive and expressive language skills. Exhibit P-13.

· A Report of an Arlington Speech and Language Evaluation on 1/25/01, 2/1/01 and 3/9/01 by Kerna Popivchak, MS, CCC-SLP, found that Student displays low to below average skills for receptive and expressive single word picture vocabulary skills with some signs of word retrieval difficulties; word classification skills, grammar usage, following directions involving concepts and word discrimination skills were in the low average range; she has below average ability in sentence repetition skills, listening comprehension and oral narrative skills; and she has decreased speech intelligibility due to many misarticulations and reduced volume. The evaluation report recommends that Student receive speech and language services to address her needs. Exhibit S-5.

· A Report by Cindy Sorenson, MEd, of the Arlington Special Education Department regarding her evaluation of Student on February 26 and 27, 2001, found that Student is having difficulty developing the visual motor integration skills, fine motor skills and phonemic awareness skills that she needs to continue her progress in language arts areas. The Report further noted that math areas are challenging for Student as she is having difficulty with computation and problem solving tasks, and particular difficulty with recalling and sequencing the parts of each mathematical process. The Report recommends a specialized program to address her reading and spelling needs – a structured sequential, multi-sensory approach with an emphasis on phonemic awareness and utilization of meaningful associations and verbal and visual cues. In addition, a sequential step-by-step structured approach that is multi-sensory was recommended to strengthen Student’s math skills. Exhibit S-5.

· A Report of an Arlington Psychological Evaluation on March 1 and 2, 2002 by Donna Quaglieri, PhD, found that Student’s level of cognitive functioning was within the average range (full scale IQ of 91), with verbal comprehension skills within the low average range and perceptual organizational skills within the average range. The Report noted that Student tended to become easily overwhelmed when presented with lengthy verbal inputs; she experienced difficulty accessing information and organizing her response to verbal task questions; and she has difficulty integrating auditory/language and visual processing abilities on tasks that require the ability to sequence information. Student’s reasoning abilities were generally found to be within the average to low average range, and she demonstrated a “basic mathematical sense” but experienced difficulty calculating solutions to story problems without the use of manipulatives. Exhibit S-5.

The Report further found that Student is motivated to learn but is overwhelmed academically and socially within the classroom learning environment, placing her at risk for issues with self-esteem and the development of herself as a capable learner relative to her peers. A variety of classroom modifications were recommended. Exhibit S-5.

· A Report of an Arlington Occupational Therapy Evaluation on 2/28/01 by Helen Bassett, MS, OTR/L, concluded that Student has weaknesses in the gross motor area with respect to muscle tone, strength and ball skills; and weaknesses in the fine motor area with respect to visual-perceptual-motor integration abilities. Occupational therapy sessions for 30 minutes, twice per week were recommended. Exhibit S-5.

· An Arlington Progress Report from the 2001-2002 school year indicates that at the Hardy School, Student received instruction in the learning center for reading, written language, math and social studies; she is integrated with a 3 rd grade class room for science, computer lab, physical education, music, art and library skills; and she receives speech-language services and counseling. Exhibit S-7.

The Progress Report dated March 13, 2002 further describes progress being made with the Wilson Reading program, retention of previous reading lessons, improvement with sentence writing and abilities regarding mathematics. Exhibit S-7 (page 8).

· Student’s progress report generally indicates grades of G (good) for mathematics and literacy for the first and second term of this past school year (2001-2002). Exhibit P-9.

· A “chalk” identifies the IEPs of five children who have been referred to the language-based classroom at the Dallin School for the 2002-2003 school year. Exhibit P-22. The five IEPs for these children are described immediately below.

The first IEP describes a child who has linguistic deficits in expressive and receptive language. The child reportedly has shown improvement in her reading decoding skills but they remain below grade level; the child has good background information but difficulty generating ideas for writing. English is the child’s second language. The IEP is dated June 28, 2001. Exhibit P-10(3).

The second IEP describes a child with a severe expressive communication disorder with a moderate impairment in receptive language skills for following directions; and as the length and complexity of language increases, the child has difficulty with comprehension. The child reportedly has limited phonological awareness, difficulty sequencing sounds when trying to read, and delayed math skills. The IEP is for the period May 1, 2001 to May 1, 2002. Exhibit P-10(4).

The third child is diagnosed with a specific learning disability; parents’ concerns focus on strengthening the child’s math skills. The child reportedly displays poor habits in math, sometimes making up answers to fill in space rather than strategizing. The IEP was developed at a Team meeting on May 8, 2001. Exhibit P-10(6).

The fourth child is diagnosed with a specific learning disability that impacts on the child’s ability to read, write and spell, and has poor visual memory which impacts upon math, decoding and spelling. The child reportedly has strong math skills, is a very strong auditory learner and cognitively falls within the average range of intellectual functioning. The IEP was developed at a Team meeting on May 22, 2001. Exhibit P-10(8).

The fifth child has needs primarily in the area of language arts. The child reportedly displays areas of relative strength in reading decoding and written expression but remains inconsistent with the application of these rules in speaking and writing; comprehension is an area of on-going need; and abstract thinking is difficult for this child. The IEP is for the period May 1, 2001 to May 1, 2002. Exhibit P-10(11).

FINDINGS AND CONCLUSIONS

Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA)³ and the state special education statute.⁴ As such, she is entitled to a free appropriate public education (FAPE).⁵ Neither her status nor her entitlement is in dispute.

A. The Massachusetts FAPE Standard.

The Massachusetts legislature recently changed the standard relevant to what special education and related services must be provided to children with disabilities. I have not previously issued a decision governed by the new standard. Therefore, I take this opportunity to identify several principles within the new Massachusetts standard, prior to applying those principles to the dispute in the case before me.

1. Introduction .

Effective January 1, 2002, the standard in Massachusetts is whether the school district has proposed an IEP that provides Student with a free appropriate public education.⁶ In Massachusetts, the term “free appropriate public education” or FAPE is defined by state statute (i) to be “consistent with” the federal standards under the Individuals with Disabilities Education Act (IDEA) and (ii) to “meet” state education standards.⁷

By way of introduction, it may be helpful to compare the FAPE requirement, as it has existed in federal law (the IDEA), with the previous state standard. Prior to January 1, 2002, Massachusetts utilized a standard of maximum feasible educational development.⁸ The federal courts have explained that the FAPE standard found within the IDEA is intended “to open the door of public education to handicapped children”⁹ rather than to require the best special education services for the student or services that would maximize the student’s potential.¹⁰ An automotive analogy has sometimes been used to make this point: “The [IDEA] requires . . . the educational equivalent of a serviceable Chevrolet to every handicapped student” rather than “a Cadillac solely for [student’s] use.”¹¹

2. Statutory Framework .

The state and federal statutes defining FAPE provide a useful starting point. Massachusetts’ law defines FAPE as follows:

“Free appropriate public education”, special education and related services as consistent with the provisions set for in the 20 U.S.C. 1400 et seq. [the IDEA ], its accompanying regulations, and which meet the education standards established by statute or established by regulations promulgated by the board of education.¹²

The IDEA defines FAPE as follows:

The term “free appropriate public education” means special education and related services that —
(A) have been provided at public expense, under public supervision and direction, and without charge;

(B) meet the standards of the State educational agency ;

(C) include an appropriate preschool, elementary, or secondary school education in the State involved; and

(D) are provided in conformity with the individualized education program required under section 614(d).¹³

From these statutory provisions, several preliminary points may be noted. First, FAPE means “special education” and “related services”, and the definitions of these terms are therefore relevant to an understanding of FAPE and will be cited in the discussion below.

Second, in Massachusetts FAPE must be understood as consistent with the provisions within the federal law, and at the same time must meet state education standards. An analysis of FAPE in Massachusetts therefore requires consideration of the IDEA, accompanying regulations and judicial decisions, as well as state statutes and regulations relevant to special education students. The Massachusetts Department of Education has also concluded that education standards applicable to special needs students in Massachusetts include the learning standards established through the state curriculum frameworks.¹⁴

Third, the special education and related services are to be provided in conformity with a student’s individualized education program (IEP), as that term is defined and used in federal and state statute and regulations.

3. Opportunity for meaningful educational progress .

The United States Supreme Court has explained generally that FAPE requires “personalized instruction with sufficient support services to permit the child to benefit educationally.”¹⁵ The lower federal Courts have further articulated their understanding of what minimal benefit or progress is acceptable, typically concluding that FAPE requires the opportunity for meaningful educational benefit or meaningful educational progress.¹⁶

The First Circuit Court of Appeals has described minimally acceptable educational progress in terms of “effective results” and “demonstrable improvement” in the “various educational and personal skills identified as special needs.”¹⁷

Several federal Courts have further explained that progress should not be evaluated in a vacuum, but rather in the context of the potential of the particular student to benefit from the
educational services.¹⁸ Similarly, the Massachusetts special education statute defines “special education” to mean “educational programs and assignments . . . designed to develop the educational potential of children with disabilities . . . .”¹⁹ And, the identified purpose of the state special education regulations is “to ensure that eligible Massachusetts students receive special education services designed to develop the student’s individual educational potential.”²⁰ Several courts have also noted that educational progress may be determined through measurable goals in an IEP.²¹

In summary, FAPE requires special education and related services that are reasonably calculated to permit a student to make meaningful educational progress.²² Meaningful educational progress includes “effective results” and “demonstrable improvement” (as those terms are used in the First Circuit Court of Appeals decisions cited above), and is evaluated in the context of the student’s educational potential (as discussed above).

4. Additional principles .

There are several additional principles, well established by state and federal law. First, FAPE requires an educational program that is designed to meet the student’s unique individual needs for special education and related service,²³ and that addresses all of a child’s special education and related services needs , whether they be academic, physical, emotional or social.²⁴

Second, to the maximum extent appropriate, the special education and related services must be provided in the least restrictive environment .²⁵ Related to the least restrictive standard is the requirement, found within federal law, of full participation of each child with a disability in the general curriculum to the maximum extent appropriate to the needs of the child.²⁶

5. Summary of FAPE .

To summarize several of these principles, a free appropriate public education (FAPE) means special education and related services (i) tailored to meet a student’s unique needs and (ii) reasonably calculated to permit the student to make meaningful educational progress in the least restrictive environment.

Restated in terms of the individualized education program (IEP) proposed by the school district, FAPE may be summarized as requiring that the IEP be tailored to address a student’s unique needs in a way reasonably calculated to enable the student to make meaningful educational progress in the least restrictive environment.²⁷

As explained above, meaningful educational progress includes “effective results” and “demonstrable improvement”, and is evaluated in the context of the student’s educational potential.

I now turn to the particular dispute before me.

B. Special Education Services.

Mother urges that Student be mainstreamed, with accommodations and supports as necessary, for all of Student’s classes. She also requests additional, pull-out services for reading (utilizing the Wilson Reading program) and speech-language services.

Arlington, through its proposed IEP, agrees with Mother with respect to Student’s participation in mainstreamed classes, with the following exception. Arlington seeks a continuation (from this school year) of the self-contained, specialized services for all of Student’s language arts and math instruction, with the Wilson Reading program taught within the specialized language arts instruction. There is no disagreement with respect to speech-language services.

The dispute with respect to special education services therefore may be stated as whether Student should receive her language arts and math instruction in a supported/adapted mainstream classroom or in a specialized, self-contained classroom.

Mother agrees with Arlington that her daughter has a learning disability, but believes that the disability is not so severe as to preclude her from being mainstreamed successfully in all of her classes. She points to her daughter’s improvement during the 2001-2002 school year, particularly regarding reading as tested by the Lexington Reading Center. She also has concerns that within a self-contained classroom, her daughter is not receiving the curriculum content normally provided to regular education children. Testimony of Mother.

Mother has spent a significant amount of time observing her daughter’s current program, as well as the program proposed by Arlington and the program sought by Mother for the next school year, and she has reviewed many of her daughter’s papers from school. In short, Mother is an engaged and concerned parent who has spent considerable time and effort understanding and advocating for her daughter’s education. Mother believes that it is in the best interests of her daughter that she participate in a regular education classroom for all of her subjects next school year. Testimony of Mother.

I do not doubt Mother’s intentions and knowledge of her daughter. Yet, I find the testimony of Student’s current teacher (Ms. Barker) and the Arlington Special Education Director (Dr. Bisbicos) to be persuasive that Student needs the special education services proposed by Arlington. Ms. Barker and Dr. Bisbicos have considerable expertise regarding special education, they have demonstrated a thorough knowledge of Student and her special education needs, and I do not doubt their interest in recommending educational services which they, as professional educators, believe to be necessary to meet Student’s unique needs. Testimony of Bisbicos, Barker; Exhibit S-9.

It is true, as Mother points out, that the provision of the services proposed by Arlington would diminish Student’s participation in the mainstream setting. However, for the reasons explained below, I find that Student’s language deficits would make it difficult for her to make progress in a fully-mainstreamed 4 th grade classroom, even with modifications and supports. As a result, Student would likely struggle in those areas where she is now most in need of skill development – language arts and math. In contrast, Arlington has proposed an appropriate educational placement and services for Student. Testimony of Bisbicos, Barker.

It is not disputed by Mother that Student has a learning disability. This disability negatively impacts her language. Mother’s independent evaluation at Franciscan Children’s Hospital confirmed Arlington’s earlier evaluations that Student has deficits in expressive and receptive language. Testimony of Barker, Mother, Poor; Exhibits S-5, P-2, P-5, P-11, P-17.

This past school year (2001-2002), Student has been provided a language-based classroom for language arts and math that is characterized by small group instruction, multiple teaching strategies and approaches that can be individualized to Student, an emphasis on decoding and encoding, and a scaffolding approach (building on what Student has understood). This has ensured that with respect to her areas of greatest weakness (expressive and receptive language), the material was accessible to Student and that she had the opportunity to learn at her own rate of understanding. As a result, Student gained significant benefit from her instruction in language arts, with her reading comprehension and decoding improving from the primer to early 1 st grade level to the 2 nd grade to beginning 3 rd grade level. (Student recently completed 3 rd grade.) Student has also made progress in math. Testimony of Barker; Exhibits S-6, S-7 (page 8), P-9, P-11, P-17.²⁸

The aim is always to return Student to a fully-mainstreamed curriculum as soon as possible. However, notwithstanding her academic progress last school year, Student’s language skills have not yet developed to the point where she is ready for that transition. During the next academic year (2002-2003), Student needs a continuing focus and priority on the development of the basic language skills which are now (and will continue to be) essential to so much of her education, even if the result is to limit somewhat her exposure to curriculum content. Arlington’s proposed language-based services for language arts and math are designed to address Student’s particular deficits in these areas by continuing for another academic year the approaches and strategies that have been successful in school year 2001-2002. This educational approach will likely allow Student to continue to make significant progress. Within Arlington’s proposed language-based classroom, Student will be placed with other children who are likely to provide an appropriate peer group. Testimony of Barker, Bisbicos; Exhibits S-5, P-2, P-5, P-11, P-13, P-17, P-18.

I note that Mother has sought to retain her daughter in the 3 rd grade. The evidence indicates that it may be necessary to do so if Student were to be mainstreamed for language arts and math. Testimony of Barker; Exhibits P-4, P-11, P-17. However, Dr. Bisbicos and Ms. Barker were persuasive that, particularly for a child such as Student who is working hard at school and doing her best, retention would likely serve little, if any, long term educational benefit and would likely be experienced by Student as punitive. These implications of retention further support Arlington’s proposal that Student be provided specialized educational services in language arts and math so that she can advance to the next grade and be taught as a 4 th grade student during the 2002-2003 academic year.

Mother’s independent evaluations of Student by Franciscan Children’s Hospital might, on their face, be read to support Mother’s arguments for a fully mainstreamed classroom since several of the Franciscan evaluations as well as the Summary of the Evaluation Team Conference conclude that Student can make effective progress in an inclusion classroom with a maximum of 15 students, co-taught by a regular education teacher and a special education teacher. The Summary continues by stating that “[w]ithin such an inclusion setting, [Student] should receive the following additional services” and then lists the various recommended specialized services, including those for reading and math. Exhibit P-2.

However, a careful reading of the Franciscan evaluations (particularly the Educational Evaluation which addresses language arts and math instruction in detail) makes clear that what is being recommended is that all of Student’s language arts instruction and her math instruction take place in either a 1:1 setting or a self-contained, small group of children with similar cognitive and educational needs, as compared to a mainstreamed classroom. The Franciscan Educational Evaluation then recommends ninety minutes of specialized language arts instruction, and forty-five minutes of specialized math instruction, which recommendations are consistent with and support Arlington’s proposed specialized instruction in language arts (for ninety minutes) and math (for forty-five minutes). This evaluation leaves no doubt that mainstreamed instruction, as proposed by Mother, is not recommended for language arts and math. Exhibit P-4, pages 6 and 8.

For these reasons, I conclude that Arlington’s proposed IEP is tailored to address Student’s unique needs in a way reasonably calculated to enable Student to make meaningful educational progress.

C. Least Restrictive Environment.

Mother seeks to have her daughter attend their neighborhood school (the Bishop School) which is closer to home than Arlington’s proposed placement (at the Dallin School). At the Bishop School, Mother would have her daughter attend mainstreamed classes for language arts and math. This would allow Student to be educated more of the day with typical children and therefore receive less restrictive educational services.²⁹

The federal and state special education laws contain a strong preference for educating children in the least restrictive environment. As explained by the First Circuit Court of Appeals:

An IEP must prescribe a pedagogical format in which, “to the maximum extent appropriate,” a handicapped student is educated “with children who are not handicapped.. . .” 20 USC § 1412(5)(B); 34 CFR § 300.550(b)(1). Congress’ stated preference requires, in the eyes of both federal and state authorities, that education of the handicapped occur in “the least restrictive environment.” See 34 CFR § 300.552(d); Mass. Gen. L. ch. 71B, §§ 2, 3.³⁰

Where there is tension between the educational services necessary to meet the needs of a child (and to provide her with educational benefit) and the principles of least restrictive environment, “the desirability of mainstreaming must be weighed in concert with the Act’s mandate for educational improvement . . . , requir[ing] a balancing of the marginal benefits to be gained or lost on both sides of the maximum benefit/least restrictive fulcrum.”³¹

For the reasons explained above in part B of the Findings and Conclusions of this Decision, I find that Student’s participation in the specialized, self-contained language arts and math classrooms is necessary to her continued educational progress, and that without these services, Student would be denied a free appropriate public education (FAPE). I further note that in all other respects (including her home room, social studies, science and specials (art, music, etc.)), Student will be educated with her typical peers. On balance, I find that the benefits of a more restrictive environment (with the specialized, self contained language arts and math) at the Dallin School far outweigh the benefits of a fully-mainstreamed curriculum at the Bishop School.

As part of the least restrictive mandate, the federal special education regulations governing placement of students with special needs also require that students be placed as close to home as possible, and that absent other requirements, the student should be placed in the school he or she would attend if not disabled.³²

There was persuasive evidence that if Student were to be placed closer to home (at the Bishop School), Arlington would not be able to deliver the requisite special education program to Student. The special education services would be disjointed and lack the necessary structure. At the Dallin School (where Arlington has proposed that Student be placed), an appropriate program for Student is in place. Testimony of Bisbicos.

I find that the benefits gained from services in the more restrictive environment at Dallin could not feasibly be provided at Bishop. This presents the type of circumstances that satisfy the regulatory language allowing for an exception to the preference for a school placement closer to home.³³

For these reasons, I conclude that Arlington’s proposed IEP satisfies the least restrictive mandates contained within state and federal special education law.³⁴

D. Corrections and Clarifications Regarding Arlington’s Proposed IEP.

The IEP proposed by Arlington (Exhibit P-18) includes several omissions and lack of specificity that should be addressed forthwith.

The IEP erroneously includes no consultation services in part A of the service deliver grid. Dr. Bisbicos testified that the IEP should include speech-language consultation for fifteen minutes, once per week, and occupational therapy consultation for fifteen minutes, once per week. These consultation services should be added to the IEP service delivery grid.

Part B of the service delivery grid lists the classroom teacher as the personnel who provide special education and related services in the mainstreamed science and social studies classes. Dr. Bisbicos testified that the IEP should indicate that a special education aide will be providing these services together with the classroom teacher. This notation should be added to the IEP service delivery grid.

Part C of the service delivery grid lists academic support for five days per week, without indicating the amount of time. Dr. Bisbicos testified that the academic support is for 135 minutes each day (ninety minutes for language arts and forty-five minutes for math). This notation should be added to the IEP service delivery grid.

Part C of the service delivery grid lists counseling once per week, without indicating the amount of time. Dr. Bisbicos testified that the counseling would be for thirty minutes each week. This notation should be added to the IEP service delivery grid.

ORDER

Arlington’s proposed IEP for the 2002-2003 school year satisfies its obligation to provide Student with FAPE, provided that corrections and clarifications to the IEP are made in accordance with part D of the Findings and Conclusions of this Decision (“Corrections and Clarifications Regarding Arlington’s Proposed IEP”).

By the Hearing Officer,

William Crane

Dated: July 23, 2002

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL

EFFECT OF DECISION AND RIGHTS OF APPEAL

The decision of the Bureau of Special Education Appeals is final and is not subject to further agency review. Because 20 U.S.C. s. 1415(i)(1)(B) requires the Bureau decision to be final and subject to no further agency review, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision, once it is issued. Any party aggrieved by the Bureau decision may file a complaint in the Superior Court of competent jurisdiction or in the District Court of the United States for Massachusetts for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2). Under Massachusetts General Laws, Chapter 30A, Section 14(1), appeal of a final Bureau decision must be filed within 30 days of receipt of the decision.

Except as set forth below, the final decision of the Bureau must be implemented immediately. Under G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay; rather, a party seeking to stay the decision of the Bureau must seek such stay from the court having jurisdiction over the party’s appeal.

Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program,” 20 U.S.C. s. 1415(j). 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. Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983); Honig v. Doe , 484 U.S. 305 (1988).

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 M.G.L. c.30A, ss. 11(6) and 14(4), an appealing party seeking a certified written transcription of the entire proceedings, must arrange for the transcription, or portion thereof, by a certified court reporter, at his/her own expense. Transcripts prepared by the party must then be submitted to the Bureau of Special Education Appeals with appropriate court reporter certification for final review and certification. A party unduly burdened by the cost of preparation of a written transcript of the sound recordings may petition the Bureau of Special Education Appeals for relief.

COMPLIANCE

A party contending that a decision of the BSEA is not being implemented may file a complaint with the Department, whose responsibility it shall be to investigate such complaint. 603 CMR s. 28.00, par. 407.0.

In addition, the party shall have the option of filing a motion with the Bureau of Special Education Appeals, requesting the Bureau to order compliance with the decision. The motion shall set out the specific area of alleged non-compliance. The Hearing Officer may convene a hearing at which the scope of inquiry will be limited to facts bearing on the issue of compliance, facts of such nature as to excuse performance and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief and refer the matter to the Legal Office of the Department of Education for enforcement.

CONFIDENTIALITY

In order to preserve the confidentiality of the child 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.

NOTICE OF REVISED BUREAU PROCEDURES

ON RECONSIDERATION/REHEARING

The United States Department of Education, Office of Special Education Programs (OSEP) in its 1990 Monitoring Report, issued July 17, 1991, ordered the Bureau to amend its procedures to eliminate the availability of reconsideration or re-opening as post-decision procedures in the Bureau cases. Accordingly, parties are notified that the Bureau will not entertain motions for reconsideration or to re-open. Bureau decisions are final decisions subject only to judicial review.

In addition, parties should be aware that the federal Courts have ruled that the time period for filing a judicial appeal of a Bureau decision is thirty (30) days, as provided in the Massachusetts Administrative Procedures Act, M.G.L. c.30A. See, Amann v. Town of Stow , 991 F.2d 929 (1 st Cir. 1993); Gertel v. School Committee of Brookline , 783 F. Supp. 701 (D. Mass. 1992). Therefore, an appeal of a Bureau decision to state superior court or to federal district court must be filed within thirty (30) days of receipt of the Bureau decision by the appealing party.

1

Mother objects to this characterization of the issue. She takes the position that the issues are more properly set forth in the Hearing Officer’s Order of April 24, 2002 in which the Hearing Officer stated that the following five issues would be addressed at the Hearing: the identity/location of the school that Student will attend; whether Student will be placed in a 3 rd grade class or a 4 th grade class; the nature and extent of the specialized services addressing language arts; the nature and extent of specialized services (if any) addressing math; the nature and extent of any other specialized services, supports, modifications and/or accommodations. Each of these five issues will be addressed in this Decision within the context of Arlington’s proposed IEP (Exhibit P-18) and whether the IEP is reasonably calculated to provide Student a free appropriate public education.

2

By letter to Mother of March 1, 2002, the Franciscan Children’s Educational Specialist (Caroline Bonk) wrote that this phrase “was meant to imply classroom placement, not academic level.” Exhibit P-8.

3

20 USC 1400 et seq .

4

MGL c. 71B.

5

MGL c. 71B, ss. 1 (definition of FAPE), 2 and 3.

6

MGL c. 71B, ss. 1, 2 and 3, as amended by chapter 159, sections 149, 154 and 163 of the Acts of 2000.

7

MGL c. 71B, s.1.

8

David D. v. Dartmouth School Committee , 775 F.2d 411, 423 (1 st Cir. 1985).

9

Board of Education of Hendrick Hudson Central School District v. Rowley , 458 U.S. 176, 192, 102 S.Ct. 3034, 3043 (1982).

10

E.g., Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993) (“benefit conferred need not reach the highest attainable level or even the level needed to maximize the child’s potential”); GD v. Westmoreland School District , 930 F.2d 942 (1 st Cir. 1991) (“FAPE may 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

Doe v. Board of Education of Tullahoma City Schools , 9 F.3d 455 (6 th Cir. 1993). This analogy prompted a Tennessee hearing officer in a special education appeal ( Zachary Deal v. Hamilton Cty. Dept. of Ed. ) to remind the reader: “The IDEA may not mandate a Cadillac for [student]. It does, however, require the [school district] to make sure whichever vehicle they propose is fully gassed and capable of arriving at an appropriate destination.”

12

MGL c. 71B, s.1 (emphasis supplied).

13

33 USC 1401(8). The federal regulations adopted pursuant to the IDEA include a similar definition of FAPE. 34 CFR 300.13 (emphasis supplied).

14

In an administrative advisory providing guidance on the new Massachusetts FAPE standard, the Massachusetts Department of Education explained: “The state standards include not only the requirements of the Special Education Regulations (603 CMR 28.00) but also the learning standards that Massachusetts has established through the state curriculum frameworks. All students in the Commonwealth’s public education system, including students with disabilities, are entitled to the opportunity to learn the material that is covered by the academic standards in the Massachusetts curriculum frameworks.” Mass. Department of Education’s Administrative Advisory SPED 2002-1: Guidance on the change in special education standard of service from “maximum possible development” to “free appropriate public education” (“FAPE”), Effective January 1, 2002 (hereafter Mass . FAPE Advisory ), 7 MSER Quarterly Reports 1 (2001) (appearing at www.doe.mass.edu/sped).

15

Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 203, 102 S.Ct. 3034, 3049 (1982).

16

Weixel v. Board of Education of the City of New York , 287 F.3d 138 (2 nd Cir. 2002) (placement must be “’reasonably calculated’ to ensure that [student] received a meaningful educational benefit”); Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) (educational benefit must be “meaningful”); Ridgewood Board of Education v. NE for ME , 172 F.3d 238 (3 rd Cir. 1999) (IDEA requires IEP to provide “significant learning” and confer “meaningful benefit”); Walczak v. Florida Union Free School District , 142 F.3d 119 (2 nd Cir. 1998) (“IDEA requires . . . meaningful access to an education”); Stockton by Stockton v. Barbour County Bd. of Educ ., 25 IDELR 1076 (4 th Cir. 1997) (FAPE must produce more than “some minimal academic advancement”); MC v. Central Regional School District , 81 F.3d 389 (3 rd Cir. 1996), cert. denied 519 US 866 (1996) (“residential program is required for [student] to make meaningful educational progress”). But see Devine v. Indian River County Sch. Bd ., 249 F.3d 1289 (11 th Cir. 2001) (standard is “making measurable and adequate gains in the classroom”, which may be less than “meaningful gains”).

17

Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993) (program must be “reasonably calculated to provide ‘effective results’ and ‘demonstrable improvement’ in the various ‘educational and personal skills identified as special needs’”); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990) (“Congress indubitably desired ‘effective results’ and ‘demonstrable improvement’ for the Act’s beneficiaries”); Burlington v. Department of Education , 736 F.2d 773, 788 (1 st Cir. 1984) (“objective of the federal floor, then, is the achievement of effective results–demonstrable improvement in the educational and personal skills identified as special needs–as a consequence of implementing the proposed IEP”).

18

Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) (“disabled child’s development should be measured not by his relation to the rest of the class, but rather with respect to the individual student, as declining percentile scores do not necessarily represent a lack of educational benefit, but only a child’s inability to maintain the same level of academic progress achieved by his nondisabled peers”); Ridgewood Board of Education v. NE , 172 F.3d 238 (3 rd Cir. 1999) (“quantum of educational benefit necessary to satisfy IDEA . . .requires a court to consider the potential of the particular disabled student before it”); MC v. Central Regional School District , 81 F.3d 389 (3 rd Cir. 1996), cert. denied 519 US 866 (1966) (child’s untapped potential was appropriate basis for residential placement); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990) (“academic potential is one factor to be considered”); Kevin T. v. Elmhurst , 36 IDELR 153 (N.D. Ill. 2002) (“in determining whether a school district has provided a FAPE, the court must analyze the child’s intellectual potential and then assess the student’s academic progress”).

19

MGL c. 71B, s. 1.

20

603 CMR 28.01(3). The Massachusetts Department of Education has also noted that the Massachusetts Education Reform Act “underscores the Commonwealth’s commitment to assist all students to reach their full educational potential.” Mass . FAPE Advisory (see footnote 14 above for full title and citation of the Advisory). MGL c. 69, s. 1 provides, in part: “It is hereby declared to be a 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 . . . .”

21

County of San Diego v. California Special Educ. Hearing Office, 93 F.3d 1458 (9th Cir. 1996) (correct standard for measuring educational benefit under the IDEA is not merely whether the placement is reasonably calculated to provide the child with educational benefits, but rather, whether the child makes progress toward the goals set forth in IEP); Evans v. Board of Education of the Rhinebeck Central School District , 930 F.Supp. 83 (S.D. N.Y. 1996) (IEP must include measurable criteria to assess student’s progress).

22

Similarly the Massachusetts Department of Education (DOE), after reviewing federal and state law relevant to Massachusetts’ new FAPE standard, concluded that the “FAPE standard . . . requires the school district to provide personalized instruction tailored to the student’s needs, with sufficient support services to permit the student to make meaningful educational progress .” Mass . FAPE Advisory (see footnote 14 above for full title and citation of Advisory) (emphasis supplied).

23

20 USC 1400(d)(1)(A) (purpose of the federal law is to ensure that children with disabilities have FAPE that “emphasizes special education and related services designed to meet their unique needs . . . .”); 20 USC 1401(25)(“special education” defined to mean “specially designed instruction . . . to meet the unique needs of a child with a disability . . .”); Honig v. DOE , 484 U.S. 305, 311 (1988) (FAPE must be tailored “to each child’s unique needs”); Amanda J. v. Clark Cty. Sch. Dist , 267 F.3d 877 (9 th Cir. 2001) (“FAPE must be ‘tailored to the unique needs of the handicapped child’”); Houston Independent School District v. Bobby R. , 200 F.3d 341 (5 th Cir. 2000) (“IDEA requires tailoring to the unique needs of the handicapped child by means of an IEP”); Adams v. State of Oregon , 195 F.3d 1141 (9 th Cir. 1999) (amount of service hours must be “linked to the child’s unique needs”); Walczak v. Florida Union Free School District , 142 F.3d 119 (2 nd Cir. 1998) (services must be “tailored to meet the unique needs of a particular child”); Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993) (“appropriateness requires that the instructional plan be custom tailored to address the handicapped child’s ‘unique needs’”); JSK v. Hendry County School Board , 941 F.2d 1563 (11 th Cir. 1991) (“[a]dequacy must be determined on a case-by-case basis in light of the child’s individual needs”); Burlington v. Department of Education , 736 F.2d 773, 788 (1 st Cir. 1984) (educational instruction must be based on the “unique needs of the disabled child” with sufficient support services so that the child will benefit from that instruction); 34 CFR 300.26 (“the term special education means specially designed instruction . . . to meet the unique needs of a child with disability . . .); 34 CFR 300.300(3)(ii) (“services and placement needed by each child with a disability to receive FAPE must be based on the child’s unique needs and not on the child’s disability”); 603 CMR 28.02 (21) (“ special education shall mean specially designed instruction to meet the unique needs of the eligible student . . .”). See also Mass . FAPE Advisory (school districts must “focus on the unique needs and strengths of the individual student through the Team evaluation and IEP process”) (see footnote 14 above for full title and citation of the Advisory ).

24

Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993) (The IEP “must target all of a child’s special needs, whether they be academic, physical, emotional, or social”) (internal quotations and citations omitted); 34 CFR 300.300(a)(3)(i) (special education services must “address all of the child’s identified special education and related services needs . . . .”).

25

20 USC 1412(5)(A) (“To 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.”); Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993) (“IDEA . . . articulates a preference for mainstreaming”); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990) (“Congress’ stated preference requires . . . that education of the handicapped occur in ‘the least restrictive environment’”); 34 CFR 300.550 (mirrors statutory language). The Massachusetts special education statute requires that FAPE be provided in the least restrictive environment (MGL c. 71B, ss. 2, 3) and defines the term “least restrictive environment” consistent with the federal statutory language quoted above in this footnote (MGL c. 71B, s. 1).

26

20 USC s. 1414(d)(1)(A)(iii); 34 CFR 300.347(a)(2)(i) and (a)(3)(ii); 64 Fed. Reg. No. 48, page 12595, column 1. This issue is discussed within In re: Worcester Public Schools , BSEA # 00-0912, 6 MSER 194 at footnotes 11 and 12 and accompanying text (SEA MA 2000).

27

The First Circuit has used similar wording:

To qualify for federal funding under the IDEA, a state must offer all children with disabilities a free appropriate public education. In this context, appropriateness requires that the instructional plan be custom tailored to address the handicapped child’s unique needs, in a way reasonably calculated to enable the child to receive educational benefits.

Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993) (internal quotation marks and citations omitted).

28

I note that an evaluation in January 2002 found significantly lower skill levels in language arts, perhaps indicating that much of Student’s recent progress has occurred since January. The Educational Evaluation (part of Franciscan Children’s January 2002 Multidisciplinary Evaluation of Student) indicated that Student has not yet acquired phonemic awareness which is necessary for reading success; she recognized words at a late 1 st grade level; she was unable to read passages at a preprimer level; and her spelling is at the top of the below average range. Exhibit P-4.

29

In support of this argument, Mother points to the IEPs of three children at Arlington’s Bishop School (where Mother seeks to place Student) indicating that the services and accommodations sought by Mother are being provided to other children at Bishop through inclusion services, speech and language therapy and special education assistance in the resource room. Mother also takes the position that Arlington should have produced IEPs of additional children at Bishop — apparently assuming that such additional IEPs exist and that they would also reflect provision of the services sought by Mother. However, this argument in support of placement at the Bishop School presumes that Student can receive FAPE through the same kinds of educational services that are being provided to other children with special needs who are attending Bishop. For the reasons explained above, I disagree with this premise.

30

Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990). See also footnote 25 and accompanying text of this Decision.

31

Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990). See also Roncker v. Walter , 700 F.2d 1058, 1063 (6 th Cir. 1983) (education in a more restrictive environment justified when “any marginal benefits received from mainstreaming are far outweighed by the benefits gained from services which could not feasibly be provided in the non-segregated setting”).

32

34 CFR 300.552 (“each public agency [governed by the Act] shall ensure that: (a) The placement decision — . . . (3) Is as close as possible to the child’s home. . . . (c) Unless the IEP of a child with a disability requires some other arrangement, the child is educated in the school that he or she would attend if nondisabled.”).

33

The regulations allow for an exception when “the IEP of a child with a disability requires some other arrangement”. 34 CFR 300.552(c). This regulatory language was considered in Kevin G. by Jo-Ann G. v. Cranston School Committee , 965 F.Supp. 261 (D. R.I. 1997). In that case, the student’s medical condition required a nurse in his school. The more distant school (but not the neighborhood school) had a nurse. The federal court declined to order that the nurse be reassigned to the neighborhood school, and further concluded that the “lack of a nurse at the neighborhood school is the type of special requirement which should override the preference for the neighborhood school.” The court’s opinion was affirmed by the First Circuit in a per curiam decision. Kevin G. by Jo-Ann G. v. Cranston School Committee, 130 F.3d 481 (1 st Cir. 1997).

34

Mother also argues that Arlington’s proposed placement of Student into a specialized classroom for language arts and math would violate an understanding of the parties that is reflected in an Order of this Hearing Officer, dated April 24, 2002. Mother relies on the following language from the Order: “There will be a Team meeting on or about May 31, 2002 in order to develop an IEP . . . . This IEP will include placement of Student into a 3 rd or 4 th grade regular education classroom.” But, the Order further states that the Hearing on the merits will determine the “nature and extent of the specialized services” regarding language arts and math. Read as a whole, the Order does not (and should not be read to) preclude Student from receiving her language arts and math instruction in a specialized setting so that she will have the opportunity to make meaningful educational progress.