COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In re: Brian1
BSEA# 07-4615
This decision is rendered pursuant to M.G.L. Chapters 30A and 71B; 20 U.S.C. §1400 et seq.; 29 U.S.C. §794; and the regulations promulgated under these statutes.
A hearing in the above-entitled matter was held on October 23, 25 and 30 and November 27, 2007. The record remained open for receipt of final exhibits and written arguments until January 17, 2008.
Those in attendance were:
Father
Mother
H. Ann Brochin Psychologist
Kathleen Grabowski Speech-Language Pathologist
Nancy Rosoff Director, Learning Prep School
Lawrence Kotin Attorney for Parents
Robert Bellucci Director of Special Education, Marblehead Public Schools
Katherine Harris Former Team Chairperson, Marblehead Public Schools
Cheryl Herrick Special Education Teacher, Marblehead Public Schools
Elizabeth Dawes Special Education Teacher, Marblehead Public Schools
Susan Pillsbury Speech Language Pathologist, Marblehead Public Schools
Kathryn Drinkwater School Psychologist, Marblehead Public Schools
Matthew MacAvoy Attorney for Marblehead Public Schools
Laurie Jordan Court Reporter
Darlene Coppola Court Reporter
Raymond Oliver Hearing Officer, Bureau of Special Education Appeals
The evidence consisted of Parents’ Exhibits labeled P-1 through P-100 and Parents’ Supplemental Exhibits labeled PS-1 through PS-15; Marblehead Public Schools’ Exhibits labeled S-1 through S-33; and approximately 16 hours of oral testimony.
HISTORY/STATEMENT OF THE CASE
Brian is a 16 year old young man who resides with his family in Marblehead, MA. Brian began receiving special education services under an Individual Education Plan (IEP) from the Marblehead Public Schools (MPS) in pre-school. Brian attended MPS, functioning under various IEPs, through fifth grade (elementary school). During fifth grade Brian was re-evaluated by MPS and received a private neuropsychological evaluation from Dr. Lappin. MPS proposed an IEP for Brian for sixth grade (2003-2004 school year) in a substantially separate program at Marblehead Middle School. (See P-76 through P-100.)
However, Parents enrolled Brian in the Marblehead Community Charter Public School (MCCPS), a charter school located in Marblehead. Brian attended MCCPS for his sixth, seventh, and eight grade years i.e., 2003-2004, 2004-2005, and 2005-2006 school years. All of Brian’s MCCPS IEPs provided special education “pull out” services plus special education services within the regular education classroom. During this period Brian was again evaluated by Dr. Lappin (2005) and received a team evaluation from MCCPS (late 2005-2006). MCCPS ends at the end of a student’s eighth grade year. Brian’s last MCCPS IEP, accepted by Parents, ran from 1/20/06-1/20/07. During Brian’s eighth grade year Parents explored high school options for Brian including MPS, North Shore Technical High School and Learning Prep School. (See testimony, Parents; P-51 through P-75; S-1, 2, 7, 8.)
In April 2006 Parents registered Brian with MPS for his ninth grade school year at Marblehead High School (MHS). Parents also requested that MCCPS schedule a meeting to review Brian’s IEP with MPS. (See P-45 through P-50; S-4, 5.) Brian’s team, including a MPS representative, met on June 21, 2006 and developed an IEP Amendment. In that IEP Amendment MCCPS proposed that Brian’s service delivery in his accepted MCCPS IEP be changed and some accommodations be deleted to reflect his new high school placement at MHS. This IEP Amendment was accepted by Parents on June 26, 2006. (See P-41, 42; S-3.)
On July 22 and 29, 2006 Brian underwent a private neuropsychological evaluation by Dr. Brochin (P-38A). On July 27, 2006, Parents wrote to MPS that Dr. Brochin had recently evaluated Brian; that they had accepted the IEP for the upcoming school year; but that they had serious reservations whether it was appropriate for Brian. Parents conditioned their acceptance of the IEP on MPS agreeing to allow Dr. Brochin to observe Brian’s program at MHS in late September or early October 2006 (P-39; S-6). On September 12, 2006 MPS received a copy of Dr. Brochin’s evaluation of Brian from Parents (S-10). On September 25, 2006 MPS scheduled a team meeting for September 29, 2006 to review Dr. Brochin’s evaluation and Brian’s program at MHS (P-35; S-12). At that meeting there was essential agreement that the MCCPS IEP was not appropriate and that Brian was not making effective progress in his MHS placement (testimony, Father; Harris; Herrick; P-22; S-17). On October 3, 2006 Dr. Brochin observed Brian in his MHS placement which she found to be inappropriate for him (P-32; testimony, Brochin). On October 6, 2006 Parents withdrew their acceptance/rejected Brian’s IEP and enclosed a copy of Dr. Brochin’s October 3, 2006 observation report. Parents also reported that Brian had been accepted at Learning Prep School (LPS) for a two week trial beginning Monday October 23, 2006 and that if Brian was accepted at LPS, Parents would continue his placement there for the remainder of the school year. In anticipation of Brian’s acceptance at LPS, Parents requested funding from MPS for this placement. (See P-31; S-13.) On October 10, 2006 MPS sent Parents written notice of a team meeting on October 23, 2006 to consider Dr. Brochin’s observation report (P-27; S-15). On October 19, 2006 MPS Special Education Director, Mr. Bellucci, responded to Parents October 6, 2006 notice letter, declining to fund Brian’s LPS placement but rather to address Parents’ concerns within MPS at the October 23, 2006 team meeting (P-26; S-14). At the October 23, 2006 team meeting MPS proposed a MPS evaluation of Brian to assist in determining appropriate services/placement for him within MHS and provided Father with an evaluation consent form. (See P-25; S-16; testimony, Harris; Bellucci.) MPS sent Parents a follow-up letter on November 13, 2006 given that there had been no response from Parents (P-22; S-17). Also on November 13, 2006 Brian underwent a private speech-language evaluation by Kathleen Grabowski (P-21). On November 15, 2006, after Brian had completed a two week trial at LPS, LPS accepted Brian into the program (P-20).
On November 27, 2006 MPS scheduled a team meeting for December 4, 2006 (P-18; S-18). The team reconvened on December 4, 2006 and proposed an IEP for Brian covering 12/06 through 12/07, which provided for a substantially separate classroom in the Academic Skills Program at MHS (P-14, 15; S-19). MPS also gave Father another evaluation consent form (testimony Bellucci; Harris). Parents did not respond to this IEP and after a 30 day follow-up letter on January 16, 2007 (S-20) and a telephone call on February 7, 2007, MPS filed the unsigned IEP, as rejected IEP with the BSEA (P-9; S-21). On February 26, 2007 MPS received Parents’ signed consent form for a MPS evaluation of Brian (S-22). On March 3, 2007 MPS wrote to Parents acknowledging receipt of the signed evaluation consent form, requesting that Brian be made available at MHS to be evaluated, and requesting parental contact so that arrangements for the evaluation could be made (P-7; S-23; testimony, Harris). On May 1, 2007 Ms. Harris again wrote to Parents requesting that Brian be made available at MHS so that he could be evaluated by MPS and requesting that Parents contact her so that the necessary arraignments could be made (S-24; testimony, Harris). Brian has never been evaluated by MPS (testimony, Harris; Belluci; Father).
On April 9, 2007 Parents filed a request for hearing with the BSEA (P-6) and a hearing date was scheduled for May 15, 2007. Parents requested a postponement and a conference call. The conference all took place on April 30, 2007 at which time a pre-hearing conference was scheduled for June 1, 2007 with hearing dates scheduled for June 19, 20, and 22, 2007. The pre-hearing conference did not result in settlement and the case proceeded. In their April 9, 2007 hearing request Parents included Ms. Grabowski’s private speech-language evaluation which had been performed in November 2006 (P-21). This was the first time MPS was made aware of such evaluation. On June 5, 2007 MPS scheduled a team evaluation for June 7, 2007 to consider this speech-language evaluation (S-25). On June 12, 2007 MPS proposed an Amendment to Brian’s IEP to incorporate the Grabowski evaluation (PS-7; S-26). This IEP Amendment covered June 2007 to December 2007 – the expiration date of the 12/06-12/07 MPS IEP. This IEP amendment was rejected by Parents on June 29, 2007 (PS-4).
On June 15, 2007 this case was administratively re-assigned to Hearing Officer Putney-Yaceshyn.2 On the first day of hearing the parties disagreed regarding the scope of issues to the decided at the hearing. The parties agreed that Parents would file an amended hearing request and that MPS would then respond, likely filing a motion for summary judgment on any new issues (See transcript 6/06/07.) Hearing Officer Putney- Yaceshyn issued an order on June 20, 2007 scheduling a telephonic motion session for July 19, 2007, at which time Hearing Officer Oliver would again take over the case and the hearing would be re-scheduled. On July 19, 2007 the parties requested that this matter be re-scheduled to August 17, 2007, then to September 25, 2007. On September 25, 2007 a conference call took place. On September 27, 2007 the Hearing Officer issued an order defining the IEPs at issue for the hearing and scheduling the hearing for October 23, 25 and 30, 2007. The hearing took place on those dates and an additional date of November 27, 2007.
ISSUES IN DISPUTE
1. Did the 6/06 – 1/07 Amendment written by MCCPS in June 2006 appropriately address Brian’s special education needs so as to provide him with a free and appropriate public education (FAPE) in the least restrictive educational environment?
2. Did the 12/06-12/07 IEP written by MPS in December 2006 appropriately address Brian’s special education needs so as to provide him with FAPE in the least restrictive educational environment?
3. Did the 6/07-12/07 IEP Amendment written by MPS in June 2007 appropriately address Brian’s special education needs so as to provide him with FAPE in the least restrictive educational environment?
4. Was Parents’ unilateral placement of Brian at LPS appropriate to address his special education needs so as to provide him with FAPE in the least restrictive environment?
STATEMENT OF POSITIONS
Parents’ position is that the MCCPS IEP Amendment for the period of June 20, 2006 through January 19, 2007 and the program at MHS beginning on September 5, 2006 were inappropriate for Brian and that MPS was responsible for this IEP Amendment and offering Brian FAPE for all of his 9 th grade year at MHS. Parents’ position is also that the MPS IEP covering 12/4/06 through 12/3/07 as well as the MPS IEP Amendment covering June 7, 2006 through December 3, 2007 were inappropriate for Brian and would not have provided him with FAPE in the least restrictive educational environment. Parents contend that their unilateral placement of Brian at LPS was appropriate to address his special education needs so as to provide him with FAPE in the least restrictive educational environment and that MPS should be required to reimburse Parents for their unilateral placement.
MPS’ position is that it implemented Brian’s accepted MCCPS IEP Amendment upon the commencement of his enrollment at MHS and that MPS is not responsible for the appropriateness or lack thereof of the MCCPS IEP Amendment. MPS contends that it took appropriate steps to address Brian’s special education needs through the attempted performance of updated evaluations and promulgation of a new IEP. MPS’ position is also that its proposed IEP covering 12/4/06 through 12/3/07 as well as its proposed IEP Amendment covering June 7, 2006 through December 3, 2007 were appropriate to address Brian’s special education needs so as to provide him with FAPE in the least restrictive educational environment. MPS also contends that Brian’s unilateral placement at LPS is inappropriate and does not provide him with FAPE in the least restrictive educational environment.
PROFILE OF STUDENT
At the beginning of third grade (September 2000) Brian underwent a psychological evaluation at the Hallowell Center (P-88) where he was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), inattentive type, (DSM-IV-314.00) with a recommendation for medication. Medication was tried but discontinued (P-38A).
On August 8, 2005 Psychologist John Lappin administered a private intellectual assessment of Brian utilizing the Wechster Intelligence Scale for Children-4 th edition (WISC-IV). Brian was then about to enter the 8 th grade at MCCPS. On the WISC-IV Brian achieved the following composite and percentile scores (P-64):
Composite Area Composite Score Percentile
Verbal Comprehension 104 61
Perceptual Reasoning 90 25
Working Memory 83 13
Processing Speed 65 1
Dr. Lappin found Brian’s verbal comprehension scores to be solidly within the average range; perceptual reasoning to be at the lower limits of the average range; and both working memory and processing speed to be significantly below the average range. Dr. Lappin found steady growth/development of skills in word knowledge, practical reasoning and fund of information since his prior evaluation in 2003 (P-80). Dr. Lappin found Brian’s performance to be consistent with continued weakness in language processing and expression as well as executive functions affecting attention and self regulation. (See P-64 for complete 2005/Lappin evaluation.)
In November-December 2005 Brian underwent a three year evaluation at MCCPS. Psychologist Albert Curtis administered a psychological evaluation (P-62). On the WISC-IV Brian’s verbal comprehension index was 93 (average); perceptual reasoning index was 86 (average); working memory index was 97 (average) and processing speed index was 73 (below average). Testing a yielded scale IQ of 84 (average).3 On the Children’s Memory Scale (CMS) Brian demonstrated consistent average to above average ability. On the Children’s Auditory Verbal Learning Test (CAVLT) Brian’s performance fell with the average range. On the Bender-Gestalt Visual Motor Perception Test (Bender) Brian had difficulty with visual and motor planning. On the Behavior Rating Inventory of Executive Function (BRIEF), which is compiled by the student’s teachers and parents, Brian demonstrated concerns regarding shifting, imitation, working memory, plan/organization and monitoring. On the MCCPS speech-language evaluation (P-58) utilizing the Clinical Evaluation of Language Fundementals-4 th edition (CELF-4), speech-language pathologist Molly Silver found Brian to have average language ability in all language areas with language memory being slightly more difficult for him. Ms. Silver found that Brian would benefit from continuing to attend speech language therapy once per week to address vocabulary concept development and rate of speech. On the MCCPS educational assessment (P-59) utilizing the Woodcock-Johnson Tests of Achievement – 3 rd edition (WJ-III) Brian, then at an 8.4 grade level, achieved the following grade equivalent scores in the following academic areas:
Cluster Area Grade Equivalent Score
Oral Language 6.1
Broad Reading 7.4
Broad Math 3.7
Broad Written Language 6.6
Total Achievement 5.7
On July 22 and 29, 2006 Brian received a private psychological evaluation from Psychologist Ann Brochin (P-38A). On the Wide Range Assessment of Memory and Learning-2 nd edition (WRAML-2) with a mean score of 10 and a standard deviation of 3, Brian achieved the following scaled scores:
Picture Memory 9
Design Memory 3
Verbal Learning 8
Verbal Learning Delay Recall 9
Story Memory 12
Story Memory Recognition 13
Sentence Memory 11
On the Boston Naming Test, a test of confrontation naming and expressive vocabulary, Brian scored solidly in the average range. On the Rey Complex Figure Test (Rey) which assesses the ability to learn and organize complex, abstract visual material Brian scored below the 25 th percentile. On the Delis-Kaplan Executive Function System Trail Making Test, Brian received quite low scores, several scores below the 1 st percentile. Results indicated that Brian performs even rote simplistic tasks much more slowly than same age peers. In terms of academic functioning, on the Weshster Individual Achievement Test- 2 nd edition (WIAT-II) Brian, then at a 9.0 grade level achieved the following standard scores (mean of 100, standard devotion of 15) and grade equivalent scores:
Subtest Standard Score Grade Equivalent Score
Word Reading 96 8.2
Pseudoword Decoding 90 4.6
Numerical Operations 60 3.3
Written Expression 73 3.1
On the Gray Oral Reading Test-4 th Edition (GORT-4) Brian achieved the following standard scores (mean of 10) and grade equivalent scores:
Subtest Standard Score Grade Equivalent Score
Reading Rate 9 7.7
Reading Accuracy 10 9.7
Reading Fluency 9 8.7
Reading Comprehension 11 9.7
(See P-38A for complete Brochin evaluation.)
On November 13, 2006, two months into ninth grade, Brian underwent a private speech-language evaluation from speech-language pathologist Kathleen Grabowski (P-21). In the area of receptive language and verbal memory, Brian’s test scores ranged from high average to below average. On language processing/comprehension skills Brian’s scores ranged from average to below average. Expressive language skills ranged from average to below average. Brian demonstrated weakness with phonological processing, phonemic awareness and phonological memory. Brian’s performance on formal measures of reading indicated persistent difficulties in automatic word recognition, decoding and fluency. On the Test of Word Reading Efficiency (TWRE) Brian received grade equivalent scores of 6.8 in word recognition and 4.8 in decoding. On the GORT-4 Brian’s grade equivalent score was 6.4 for reading fluency which includes oral reading rate and accuracy. On the Woodcock Reading Mastery Test-Revised (Woodcock-R) Brian’s grade equivalent scores were 7.8 for Word Identification and 6.2 Word Attack. Written spelling was average. Written expression indicated significant deficits with test scores all below average. (See P-21 for complete Grabowski evaluation.)
PARENTS’ PROPOSED PROGRAM
Parents propose that Brian required a private day school placement at Learning Prep School (LPS) in Newton, MA. LPS is a Massachusetts Department of Education (MDOE) approved private day school placement for students with learning and language disabilities. LPS has an elementary, middle, and high school program. LPS is a language based program focused on direct instruction with the teachers the central focus in presenting information to the students. LPS utilizes a multi-sensory (auditory-visual- tactile) approach with teachers breaking down the information presented to the students. The Wilson reading methodology is employed. LPS follows the Massachusetts Curriculum Frameworks. Subject matter content is grade level but the method of presentation and breakdown of materials is based upon the students’ reading and language skills. An executive functioning structure with a comprehensive notebook system is employed along with homework folders and teacher/parent sign offs. The overriding theme of LPS is its consistency. LPS utilizes Thinking Maps in all classes and areas of instruction for consistent structure throughout the day.
Class size is no more than eight students to one teacher. Students are grouped homogeneously based upon their reading and language level and on their specific skill level in academic areas, so that teacher presentation is at the same level for the entire class. All teachers are certified in moderate special needs and/or their specific subject matter area. There is a seven period day with students having the same subject at the same time daily. All academic subjects meet once per day except English/language arts which meets twice per day – one period for decoding, encoding, spelling, and written language and one period focusing on comprehension and literature. Each student is seen by a counselor once per week. All high school students participate in a social skills development class twice weekly. There are speech-language therapists, occupational therapists, vocational instructors, physical education teachers and a transition program with job coaches. There are numerous after school activities. All students must participate in a two week trial program before a decision is made regarding admittance to LPS.4
For his 9 th grade year at LPS (2006-2007) Brian’s English/language arts teacher was certified in moderate special needs. His other two academic teachers for history and math were certified in their respective subject matters. For his 10 th grade year at LPS (2007-2008) Brian’s English/language arts teacher is certified in moderate special needs, his math teacher is certified in math and moderate special needs, his history teacher is certified in history, and his science teacher is certified in science.
(See testimony, Rosoff; P-28, 29, 30.)
SCHOOL’S PROPOSED PROGRAMS
MCCPS IEP Amendment 6/07-1/07
Pursuant to the accepted MCCPS IEP Amendment which was implemented upon Brian’s arrival at MPS, he received the following special education and related services outside of his regular education classes: Resource room for written expression and math for 55 minutes 3 times per 4 day cycle and verbal expression for 55 minutes once per 4 day cycle from the speech-language pathologist.
(See P-41, 42, 55; S-2, 3; testimony, Herrick.)
MPS IEP 12/06-12/07
Under the proposed MPS IEP, Brian would have been placed in MHS’ Academic Skills Program (ASP), a substantially separate special education classroom placement for students with moderate to severe learning disabilities. In the proposed ASP placement Brian would have received the following special education services (from special education teachers): English/language arts for 55 minutes 3 times per 4 days cycle; math for 55 minutes 3 times per 4 day cycle; social studies for 55 minutes 3 times per 4 day cycle; science for 55 minutes 3 times per 4 day cycle; and academic support for 55 minutes 3 times per 4 day cycle. Other special education/related services Brian would have received included one session of counseling for 30 minutes per 4 day cycle from the social worker; a social skills group for 30 minutes once per 4 day cycle from the social worker; and speech-language services for 55 minutes once per 4 day cycle from the speech-language pathologist. Additionally there would be speech-language consultation to Brian’s teacher for 15 minutes once per 4 day cycle from the speech-language pathologist and social skills consultation to Brian’s teacher for 15 minutes once per 4 day cycle from the social worker. All other classes such as physical education, art, electives and lunch would occur within the regular education environment of MHS.
Delivery of instruction/methodology would be multi-modal i.e., auditory, visual and hands-on activities. Graphic organizers and templates would be utilized. Tasks would be separated into manageable chunks. Instructions would be given in short, sequential steps, with work divided into smaller mini-assignments with reinforcement and opportunities for feedback at the end of each segment. Scaffolding and small group instruction would be employed. A process approach would be used for writing. A calculator would be used in math. Pace of instruction would be regulated to Brian’s needs, with adequate/extra time to answer questions and complete written work, quizzes and tests.
The primary teacher of the ASP, Ms. Dawes, is certified in moderate special needs grades 7-12; English grades 7-12; and social studies grades 7-12. The tutor in the ASP, Ms. Monaco, is certified in moderate special needs grades K through 9 and elementary/middle school grades K through 9. Ms. Monaco provides curriculum support on a 1:1 and small group basis in all subject areas within the ASP. Ms. Monaco also provides inclusion support for math and science within the regular education classroom for those ASP students who are mainstreamed for those subjects. The speech-language pathologist is Ms. Pillsbury who is a certified speech-language pathologist. There are currently a total of 20 students grades 9-12 in the ASP. Class sizes within the ASP is 5-8 students per class.
During 9 th grade in the ASP Brian would have received English/language arts co-taught by Mr. Garry5 and Ms. Dawes with the tutor, Ms. Monaco, also in the class. Brian would have been the 10 th student in the class for a 10:3 student: teacher ratio. Ninth grade social studies was taught by Ms. Dawes with Ms. Monaco in the room. Brian would have been the 10 th student for a 10:2: student: teacher ratio. Ninth grade math was taught by another special education teacher, Ms. Wales. Brian would have been the 6 th student for a 6:1 student: teacher ratio. Ninth grade science was taught by Ms. Monaco. Academic support classes would have been taught by Ms. Dawes and/or Ms. Monaco. Brian would have been the 6 th student for a student: teacher ratio of 6:1or 2.
For 10th grade in the ASP Brian would have received English/language arts with 8 other students for a student: teacher ratio of 9:2 (Ms. Dawes and Ms. Monaco). Tenth grade social studies is taught by Mr. Garry with a tutor. With Brian in the class the student: teacher ratio would have been 9:2. For tenth grade science Brian would have attended an integrated general education biology class taught by a regular education science teacher, with Ms. Monaco in the class for special education inclusion support. Student: teacher ratio would have been 13:2. Brian would also have attended an integrated general education math class taught by a regular education math teacher with Ms. Monaco in the class for special education inclusion support. Student: teacher ratio would have been 16-18:2.
(See testimony, Dawes; Harris; Bellucci; S-19, 27, 28, 29A, 29B, 30; P-10, 11, 12, 13, 14, 15.)
MPS IEP Amendment 6/07-12/07
MPS amended the 12/06-12/07 IEP to include input from Ms. Grabowski’s November 2006 speech-language evaluation, which evaluation was not made available to MPS until Parents’ April 2007 hearing request. This IEP Amendment added to the 12/06-12/07 IEP a receptive language goal and a reading goal; added some accommodations to the IEP; added one additional 55 minute session of speech-language services per 4 day cycle (now 2 sessions per 4 day cycle); and added a summer services component of 3 hours per week for 6 weeks to address reading and written language; math concepts; and expressive language.
(See S-26; testimony Dawes; Bellucci.)
FINDING AND CONCLUSIONS
It is undisputed by the parties and confirmed by the evidence presented that Brian is a student with special education needs as defined under state and federal statutes and regulations. The parties are in substantial agreement regarding the nature and manifestations of Brian’s special education needs. The fundamental issues in dispute are listed under ISSUES IN DISPUTE , above.
Based upon four full days of oral testimony, the extensive documentation introduced into evidence, and a review of the applicable law, I conclude that:
I. The 6/06-1/07 IEP Amendment written by MCCPS in June 2006 did not appropriately address Brian’s special education needs so as to provide him with FAPE in the least restrictive educational environment. However, MPS has no liability for the inappropriateness of the MCCPS IEP or for not providing Brian FAPE prior to 12/06 based upon the law and the facts presented in this case.
II. The 12/06-12/07 IEP written by MPS in December 2006 was inappropriate to address Brian’s special education needs so as to provide him with FAPE in the least restrictive educational environment.
III. The 6/07-12/07 IEP written by MPS in June 2007 was inappropriate to address Brian’s special education needs so as to provide him with FAPE in the least restrictive educational environment.
IV. LPS was an appropriate placement to address Brian’s special education needs so as to provide him with FAPE in the least restrictive educational environment.
My analysis follows.
I.
Based upon the testimony of both Parent and School witnesses, it is clear that the 6/06-1/07 MCCPS IEP Amendment was not appropriate to address Brian’s special education needs so as to provide him FAPE in the least restrictive educational environment. (See testimony Herrick; Harris; Bellucci; Brochin; Parents. See also P-22, 32; S-17.) Parents contend that MPS was responsible for the inappropriate MCCPS IEP Amendment. Parents argue that, pursuant to 603 CMR 28.10(6)(a)(1), (2), and (3), programmatic and financial responsibility shift to the community of residence as soon as it is clear that a charter school can no longer meet a student’s needs. Parents argue that MPS should be programmatically and financially responsible for Brian’s educational program because MCCPS ends upon the completion of the 8 th grade year, MCCPS could no longer meet his needs, and they and Brian are Marblehead residents.
However, I find that the above cited regulation does not govern in this case. 603 CMR 28.10(6)(a) governs those situations in which a charter school determines that a student might require placement at a private day school or residential placement. Such was clearly not the situation in this case. No evidence whatsoever has been submitted to demonstrate that MCCPS believed that it (or for that matter MPS) could not meet Brians needs or that Brian required an out-of-district placement. The 6/06-1/07 inclusion MCCPS IEP Amendment merely modified the accepted 1/06-1/07 inclusion MCCPS IEP to reflect service delivery at MHS since Brian was about to age out of MCCPS. Indeed, 603 CMR 28.10(6)(a) specifically provides that program schools (charter schools such as MCCPS) shall have programmatic and financial responsibility for enrolled students except when the program school believes that the student requires an out of district provide day or residential school placement.
Pursuant to M.G.L. c.71 s.89(a) MCCPS is an independent Massachusetts public school district. MCCPS is not a Horace Mann charter school (M.G.L. c.71 s.89(b) and MCCPS has no affiliation or formal relationship with MPS. While MCCPS is physically located within the town of Marblehead, a majority of MCCPS students do not reside within the town of Marblehead. (See testimony, Bellicci, Harris.) Therefore, the applicable governing regulation in this case is 603 CMR 28.03(1)(c)(1) which provides, in its entirety, as follows:
When an eligible student or student’s family changes from one Massachusetts school district to another, the last IEP written by the former school district and accepted by the parent shall be provided in a comparable setting without delay until a new IEP is developed and accepted . Emphasis added.
Accordingly, upon Brian’s enrollment at MHS effective on September 5, 2006, MPS was legally mandated to implement the MCCPS IEP Amendment written in June 2006 and accepted by Parents in June 2006. (See STATEMENT/HISTORY OF THE CASE , above.)
Parents also argue that MPS was responsible for the MCCPS IEP Amendment because they were a invited to the MCCPS IEP Amendment meeting and that MPS:
Should have performed a thorough assessment of [Brian’s] school functioning at MCCPS and should have made an informed determination as to [Brian’s] ninth grade placement. (See Parents’ closing argument p.19.)
Based upon CMR 28.03(1)(c)(1) cited above and the analysis referenced above, I find Parents’ argument to be without merit. Furthermore, Brian had not been a student within MPS for over 3 years. MCCPS had done a 3 year evaluation of Brian in late 2005-January 2006. Parents had accepted a full IEP from MCCPS covering 1/06-1/07 in January 2006. Parents again accepted the MCCPS IEP Amendment written in June 2006 covering 6/06-1/07. At both those times MCCPS was Brian’s Local Education Authority (LEA) responsible for implementing his entire educational program and IEP. I conclude that MPS was both legally mandated and educationally entitled to rely upon MCCPS’ evaluations and IEPs. Parents had accepted both a MCCPS IEP and MCCPS IEP Amendment covering the 6/06-1/07 time period. If a receiving LEA cannot rely on a sending LEA’s IEP and IEP Amendment that have both been developed after the student has been there for 3 years, and after both said IEP and IEP Amendment had been fully accepted by Parents, state and federal special education law would be turned on its head and chaos could result.6
Finally, I conclude that MPS acted in a responsible manner once Brian became their programmatic and financial responsibility. MPS scheduled a timely team meeting on September 29, 2006 to review Dr. Brochin’s private evaluation (performed in July and received by MPS on September 12, 2006), as well as to review Brian’s progress within MHS. MPS scheduled a team meeting on October 23, 2006 to consider Dr. Brochin’s MHS observation on October 3, 2006, received by MPS on October 6, 2007, as well as to request parental permission to conduct its own evaluation of Brian. Finally, given lack of parental consent to a MPS evaluation after 30 days, MPS scheduled a team meeting for December 4, 2006 to develop an IEP for Brian based upon the information that was available to it. (See HISTORY/STATEMENT OF THE CASE , above.)
II.
Based upon her psychological evaluation of Brian in July 2006 (P-38A) Dr.
Brochin, in her summary found, in pertinent part, as follows:
[Brian’s] neuropsychological profile is complicated by severe weakness in executive function abilities, which are those skills necessary for planning for the execution of tasks and working strategically and methodically….[Brian] is unable to break tasks down in order to better mange them, becoming easily overwhelmed when tasks are complex. In order to keep track of even a single process, he must work extraordinarily slowly. [Brian] is unable to consistently monitor his work because so much of his effort and attention goes into execution of tasks. He also works significantly more slowly than same-age peers becoming easily distracted and confused. These executive function weaknesses are likely impacted by inefficient neurophysiological processes involved in the regulation of [Brian’s] attention and level of arousal……..
In spite of years of intervention in his school [Brian] continues to evidence severe weakness in his acquisition of academic skills, with grade-equivalent scores below grade level, particularly in math and writing. He has not mastered the phonetic code, though in this evaluation [Brian] was able to fill in the gaps when he read brief passages, using the context to determine words. Comprehension was average for the passages administered in this evaluation. On the other hand, [Brian] evidenced severe dyscalculia. His math skills are terribly reduced. He uses his fingers for calculations and he cannot complete even basic problems of addition and subtraction on his own. He does not know his multiplication tables. [Brian’s] written language skills are also severely compromised. He cannot write a paragraph, failing to adhere to the structure (topic sentence, 2-3 supporting sentences, and a concluding sentence). He does not apply basic mechanics of writing consistently. [Brian] himself reports that his not able to put his thoughts on paper. Math and writing are two areas which require executive function abilities…
After years of academic underachievement [Brian] seems to have little confidence in his ability to perform tasks….
Dr. Brochin’s recommendations included, in pertinent part, the following;
1. It is recommended that [Brian] be placed in an educational setting that is specialized in the education of students with his profile of severe learning disabilities. [Brian] should be educated in a 1:1 or small group (e.g. 6-8 students maximum) throughout the entire school day. It is entirely inappropriate for him to be mainstreamed for any classes since he would be unable to keep up with the pace of instruction and could not attend to an aide while separate instruction was underway due to the extraordinary degree of effort he must exhibit to initiate, sustain, and shift attention volitionally. All of [Brian’s] teachers should have training and expertise educating students with learning disabilities.
2. It is critical that [Brian] be placed in a small school setting. He is a young man who is easily overwhelmed with too much stimulation and too much information to track. Crowded hallways, large classes and a noisy environment would significantly impair his functioning and be anxiety provoking….
3. [Brian] requires instruction with one of the rule-based, highly structured, sequential methods for teaching reading and, more specifically, phonics so that these skills are over learned. His phonic weaknesses will be more difficult to compensate for as the complexity of material-to-be-learned increases in high school, such that he will not be able to use context to guess words. [Brian’s] program must focus on decoding, reading text for fluency, and comprehension. Daily use of re-reading as a strategy is recommended. Phonics instruction will need to be incorporated into all of [Brian’s] assignments, regardless of the content are (i.e., social studies, science). [Brian’s] curriculum must be fully integrated so that skills are reinforced in all classes throughout the entire school day.
4. [Brian’s] writing program should be coordinated with his reading program, which should be highly structured and carefully sequenced….
5. It is necessary for information in all classes to be spiraled, such that it is continuously reviewed and repeated, even after having moved into more challenging concepts or skills.
6. Given severe executive function weaknesses, it is necessary that [Brian’s] notebook and format for tracking information be the same across all of his classes, so that he develops a routine for managing his work that is consistently applied throughout the school day…..
7. Given [Brian’s] failure to have mastered basic number facts and concepts, it is essential that instructions in this area begin with these basic skills. [Brian] is far too bogged down by his poor calculation skills to be able to mange more advanced mathematic skills or thinking. He requires explicit instruction in order to learn his facts …. [Brian’s] math instruction should be highly structured, with the same format applied for all lessons….
(See P-38A for complete evaluation, summary and recommendations. See also testimony, Brochin.)
Based upon her speech and oral/written language evaluation (P-21) Ms. Grabowski, in her summary found, in pertinent part, as follows:
During this evaluation [Brian] presented with a Language-Based Learning Disability. This is characterized by impairments in various aspects of both oral and written language (i.e; listening, speaking, reading and writing…..
During this evaluation impairments were noted in the following areas: accurate, efficient processing/comprehension and retention of lengthy, linguistically complex information (e.g., complex sentences/syntax and short stories); higher level comprehension skills (e.g., the ability to interpret sentences with multiple meanings); short term verbal/working memory; word retrieval; language formaulation/organization; accurate, flexible use of complex syntax; phonological processing/memory; articulation; language-based skills such as reading (i.e., decoding, automaticity, and fluency), spelling/encoding, and written expression/writing…
Ms. Grabowski’s recommendations included, in pertinent part, the following:
Given [Brian’s] cognitive/linguistic profile, including his difficulties with reading and writing, and the heavy linguistic demands (listening, speaking, reading and writing) that he will still encounter on a daily basis in all subject areas, placement in a very small, highly structured, comprehensive, language based program is recommended . Given his profile [Brian] is in need of a well-organized program in which a language-based approach is used for instruction in all subject areas including social studies/history, science and math. It is essential that skills/strategies (i.e., for listening, speaking, reading, writing and study skills/organization) are directly taught and consistently reinforced across all subject/content areas. Class sizes should be as small as possible (i.e., no more than 6-8 students), and [Brian] should be grouped with peers who have similar cognitive/linguistic profiles and academic skill levels. Trained special education teachers/learning disabilities specialists should instruct classes, with consultation being provided by a certified speech-language pathologist. [Brian’s] program should provide for direct remediation of skills, strategy instruction, and specialized instruction in the content areas. (Emphasis that of Ms. Grabowski).
Given Brian’s linguistic profile, Ms. Grabowski also recommended the use of a highly structured, linguistically controlled, rule based approach such as Wilson or Orton-Gillingham.
(See P-21 for complete evaluation, summary, and recommendations. See also testimony, Grabowski.)
Based upon the totality of evidence presented, I find that Brian has severe, broad- based learning disabilities which include a language based learning disability, dyscalculia, and executive function disabilities, as well ADHD-inattentive type. Based upon the MCCPS evaluation Brian functioned approximately 3 years below grade level overall, with broad reading about 1 year below grade level, oral and written language about 2 years below grade level and broad math about 5 years below grade level. On the Brochin evaluation, although Brian’s comprehension was approximately at grade level, his decoding, math and written expression were 4-5 years below grade level. On the Grabowki evaluation Brian’s various reading scores ranged from 1 ½ to 4 years below grade level. (See PROFILE OF STUDENT , above.) Given Brian’s overall average intelligence in verbal comprehension and perceptual reasoning; given that Brian has been in special education programs for his entire academic career; and given that Brian is now in high school; I find such wide gaps between his intellectual ability and actual achievement/performance to be significant. In light of the above, I conclude that Brian requires an intensive, comprehensive, consistent, highly structured, language based, small group, special education placement for his entire school day, where all skills are directly and specifically taught, remediated, and reinforced; and where a structured, rule-based, sequential reading methodology is employed across all subjects. Given Brian’s signifantly depressed grade level scores, I also conclude that he must be grouped with students with similar cognitive abilities, comparable learning/language disabilities, and similar academic skill levels.
I conclude that MPS’ ASP, as proposed in Brian’s proposed 12/06-12/-07 IEP
and 6/06-12/07 IEP Amendment, does not provide such a program for Brian. Dr. Brochin observed MPS’ ASP on October 9, 2007 (PS-1).7 Ms. Grabowski observed MPS’ ASP on June 6, 2007 (PS-10) and also on October 9, 2007 (PS-2). In these exhibits both Dr. Brochin and Ms. Grabawski presented detailed reasons why the ASP did not conform to their evaluative recommendations (described above). Primarily, Dr. Brochin and Ms. Grabowski found that the focus of the lessons observed was entirely on academic content and not on skill development with a direct systematic, consistent method of instruction; and that the variability of the cognitive and academic functioning of the students in the ASP was considerable. (See PS-1, 2, 10; P-32; testimony Brochin; Grabowski.)
I note that MPS’ program description of the ASP (P-11) refers to modified
curriculum in core academic subjects and curriculum support, but does not reference direct instruction in skill development, remediation of skills or any systematic, rule based reading program. Further, a review of the sanitized IEPs of proposed peers for Brian in the ASP (P-13) demonstrates the considerable diversity of needs of the ASP students in comparison to Brian. Brian is the only student without a reading goal.8 Only 2 other students have any math goals. Only 1 other student has an expressive language goal. While 4 other students have social/emotional goal only 1 has a self-advocacy goals like Brian’s with the other students requiring behavioral interventions. (See P-13; P-1, 2, 10; testimony Brochin; Grabowski; Dawes.)
In response to a question about Dr. Brochin’s October 3, 2006 observation,
Ms. Dawes responded as follows:
A: What I meant was Dr. Brochin was asking questions such as: Can you show me a classroom where there’s one-on-one instruction taking place in academic skills? I said no, I can’t show you that. Can you show me a program where everything-all the instruction across the curriculum is rule-based, something to that effect? I said no I can’t show you that right now.
So she said, well it seems to me that you can’t show me what my client needs, I was like well, right, we can’t show you that because what your describing doesn’t exist at the moment . Transcript 11/27/07 p. 57 Emphasis added.
Later Ms. Dawes was asked the following question and responded as follows:
Q: Do you use a Wilson reading program for your class throughout the day and in English world culture? And is it used throughout all of the subjects that the—that the academic skills students are enrolled in?
A. No. Transcript 11/27/07 p. 203 Emphasis added.
Finally, beginning in September 2007 Brian, as a 10 th grader, would have been
integrated into regular education math and regular education science classes (with a special education tutor, Ms. Monaco in such classes) of 13-18 students. This situation would be directly contrary to the recommendations of Dr. Brochin and Ms. Grabowski (listed above) that all Brian’s instruction take place in small group special education classes and that he not be integrated into regular education classes even with a special education tutor or aide. (See also P-21, 38A; PS-1, 2, 10.) Indeed, I note the testimony of Ms. Herrick, Brian’s special education teacher at MHS who provided him curriculum support for his regular education classes under his MCCPS IEP, regarding the inappropriateness of regular education classes for Brian; that he was not understanding the material being taught; that he was in over his head; that red flags were going up; and that even in a non-academic regular education cooking class Brian had significant language difficulty. (See testimony, Herrick; P-32.)
In summary, while MPS contends that the ASP provided Brian FAPE based upon the information available to MPS, and meets the recommendations of Dr. Bochin and Ms. Grabowski, based upon the above analysis, I find that it does not. I conclude that both the 12/06-12/07 IEP and the 6/07-12/07 IEP Amendment are not appropriate to address Brian’s special education needs so as to provide him with FAPE in the least restrictive educational environment.
IV.
I find that LPS does provide an appropriate placement to address Brian’s special education needs so as to provide him with FAPE in the least restrictive educational environment.
Dr. Brochin observed Brian in his LPS placement on June 12, 2007. Dr. Brochin found, in pertinent part, as follows:
The program at Learning Prep School is consistent with the recommendations made in the July 2006 evaluation conducted by this examiner. Students are educated in small groups throughout the entire school day. All of the teachers are experienced educating students with learning disabilities… The students in his class at Learning Prep School have his profile of learning disabilities…. The program at Learning Prep School is ideal for students with executive function weaknesses, in that there is a consistent, uniform routine and set of strategies (i.e., thinking maps) for managing and organizing information that is integrated in to all of Brian’s classes. All of the students use the same strategies throughout the entire curriculum regardless of the content area (i.e., math, science, social studies), providing [Brian] with the constant reinforcement he needs to learn to organize information on his own….
(See PS-8 for complete LPS observation report; see also testimony, Brochin.)
Ms. Grabowski observed Brian in his LPS placement on June 13, 2007 (PS-6). Ms. Grabowski found, in pertinent part:
Based upon my observation of the program at Learning Prep, it is quite clear that this is a highly structured, well organized, comprehensive program that has a language based curriculum. In addition to teaching content, major emphasis is placed on direct teaching and reinforcement of oral and written language skills (i.e., listening, speaking, reading, and writing) in addition to study skills/organizational strategies in all subject/content areas. Moreover, the same specific techniques/methods/programs are consistently used throughout the day in all of [Brian’s] classes (e.g., Thinking Maps)….
The students are Learning Prep are homogeneously grouped. The have similar profiles/learning needs and academic skill levels…. As indicated earlier, at Learning Prep, major emphasis is placed on improving basic reading, spelling and written language/writing skills. In fact, the instruction is “built into’ the program at Learning Prep and embedded in the curriculum. For instance [Brian] receives direct instruction to improve his reading/decoding, spelling/encoding, and writing skills in his daily Language Arts class. The Wilson program, which is a highly structured, systematic, linguistically controlled rule-based approached is being used for instruction in reading and spelling….
(See PS-6 for complete Grabowski LPS observation; see also testimony, Grabowski.)
Both Parents testified regarding the progress they have seen with Brian since he has attended LPS (See testimony, Mother; Father.) The extensive LPS Progress Report for the time period of March-June 2007 (PS-5) indicates that Brian has made demonstrable progress at LPS. (See also testimony, Rosoff.) While several of Brian’s LPS teachers lack special education certification and are certified in their subject matter only, I conclude that this factor is outweighed by the overall comprehensiveness, consistency, integration, and intensity of the totally language based LPS program. (See PARENTS’ PROPOSED PROGRAM , above; testimony, Brochin; Grabowki; PS-6, 8.)
Based upon Brian’s comprehensive LPS IEP (P-4); Brian’s daily/weekly LPS schedule (P-28); the written and oral description of Brian’s LPS program (P-30; testimony, Rosoff; see PARENTS’ PROPOSED PROGRAM , above); and observations of LPS by Dr. Brochin and Ms. Grabowski (testimony, Brochin; Grabowski; PS-6,8); I conclude that Brian’s LPS placement appropriately address his special education needs so as to provide Brian FAPE in the least restrictive educational environment.
ORDER
I. MPS is not responsible for Brian’s trial placement at LPS from October 23, 2006 until November 15, 2006.9
II. MPS is not responsible for Brian’s placement at LPS from November 15, 2006 to January 16, 2007.
III. MPS is responsible for Brian’s placement at LPS beginning January 16, 2007 which is 30 days after Parents received MPS proposed 12/06-12/07 IEP and failed to act upon it in any way, thereby, constructively making it a rejected IEP, for the term of the IEP/IEP Amendment.
IV. MPS shall reimburse Parents for any financial/legal obligations which they have incurred for Brian’s tuition at LPS from January 16, 2007 for the term of the IEP/IEP Amendment.10
V. MPS shall reimburse Parents for their transportation costs for Brian to attend LPS from January 16, 2007 for the term of the IEP/IEP Amendment.
VI. Parents shall make Brian available to be evaluated by MPS. MPS and Parents shall make specific arrangements for dates and times for Brian to be evaluated. Such MPS evaluations shall be completed no later than April 30, 2008.
By the Hearing Officer
____________________________
Dated:_____________________
Raymond Oliver
1
Brian is a pseudonym chosen by the Hearing Officer to protect the privacy of the student in publicly available documents.
2
The parties were made aware that Hearing Officer Oliver was unavailable on one of the three dates scheduled for the hearing but elected to proceed on those three dates.
3
Given the 3-4 month proximity of WISC-IV test administrations, a practice effect may have occurred on the 2 nd WISC-IV.
4
There is no charge for this two week trial program to either Parents or School (testimony, Rosoff).
5
Mr. Garry’s certification is unknown.
6
Indeed, Parents had accepted all of Brian’s MCCPS IEPs . If Parents were not satisfied with Brian’s progress at MCCPS they could have simply rejected Brian’s IEP as they did when Brian came back to MHS. If Brian did not make appropriate progress at MCCPS Parents’ dispute is with MCCPS not MPS.
7
Dr. Brochin also observed an English ASP class on October 6, 2007 as a proposed option for Brian, although this observation was primarily to observe MHS integrated classes/academic support pursuant to the MCCPS IEP (See P-32.)
8
Although a reading goal was listed as being added in the 6/07-12/07 IEP Amendment for Brian, none was found (See PS-7; S-26.)
9
Brian’s 1 st 2 weeks at LPS during his trial placement there was at no cost to either Parents or School (testimony, Rosoff). Brian was officially accepted at LPS on November 15, 2006 (P-20).
10
Father testified that Parents have not funded Brian’s placement at LPS and that costs have been deferred pending the outcome of this hearing (testimony, Father).