Bridgewater-Raynham Regional School District – BSEA #07-3517
COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
Re: Reimbursement for transportation and services, Lindamood-Bell, Wilson Reading Program, Fast Forward II software1
This decision is issued pursuant to M.G.L. c. 71B and 30A, 20 U.S.C. § 1401 et seq ., 29 U.S.C. § 794, and the regulations promulgated under said statutes.
A hearing was held on June 5 and June 6, 2007 at the Bureau of Special Education Appeals before Catherine M. Putney-Yaceshyn, Hearing Officer.
Parents requested a hearing on December 19, 2006, and a hearing was scheduled to occur on January 23, 2007. There was a telephone conference call on January 9, 2007. There was a pre-hearing conference on March 8, 2007 and the hearing was held on June 5 and June 6, 2007 at the Bureau of Special Education Appeals2 . During the first day of hearing Parents’ advocate stated that she intended to take the testimony of her expert witnesses via telephone3 . She had not requested prior permission from the hearing officer or provided notice to opposing counsel. Counsel for the school objected and in compliance with 801 CMR 1.01(12) the hearing officer did not allow the testimony by telephone. The hearing officer informed the parties that a third day of hearing would be scheduled to allow Parents to either provide appropriate notice of their intent to take testimony by telephone or make their witnesses available for live testimony. On June 8, 2007, the hearing officer issued an order scheduling the last day of hearing for August 9, 2007. On July 11, 2007 while parents were away on vacation, their advocate withdrew from representing them. On July 23, 2007, the Parents sent a facsimile to the hearing officer stating they had just received an e-mail from their advocate informing them of her intent to withdraw from their representation. They requested that the case be dismissed or that the hearing officer provide them with guidance as to their options. On July 27, 2007, the Parents sent a letter to the hearing officer requesting that the case not be dismissed. They requested a postponement of thirty days to try to find representation. On August 8, there was a telephone conference call with the hearing officer, school counsel, and Parents. On August 10, 2007, the hearing officer issued an order allowing Parents’ request to postpone the last day of hearing over the school’s objection. Parents were given a deadline of August 27, 2007 to inform the hearing officer and the opposing party how they wished to proceed. On August 27, 2007, Parents sent a letter to the hearing officer stating that they had been unable to obtain representation and did not wish to proceed with the last day of hearing. Their letter expressed their frustration that their advocate had not properly represented them. They requested time to submit a written closing argument. On September 5, 2007, during a telephone conference call the parties requested that closing arguments be due on September 12, 2007. The hearing officer received the school’s closing argument on September 12, 2007 and the Parents’ closing argument on September 13, 2007. The school filed its objection to Parents’ closing argument being accepted as it was late and Parents had not requested an extension. I find that there is no prejudice in allowing the Parents’ closing argument to be considered as part of the record. Therefore, Parents’ closing argument was accepted, and the record closed on September 13, 2007.
Those present for all or part of the Hearing were:
Toni Saunders, Advocate for Student/Parents
Center Director, Lindamood-Bell, Norwell
Speech Language Pathologist, School District
Consulting Speech Language Pathologist, School District
Director of Pupil Personnel Service, School District
Special Education Administrator, School District
Special education teacher (#1), School District
Seventh grade special education teacher, School District
Eighth grade (English language arts and pull-out services) special education teacher, School District
English language arts teacher, School District (eighth grade ELA teacher)
Mary Ellen Coughlin, Court Reporter, Catuogno Court Reporting
Annmarie Pereira, Court Reporter, Catuogno Court Reporting
Alisia St. Florian, Attorney for School District
Catherine M. Putney-Yaceshyn, Hearing Officer
The official record of this hearing consists of Parents’ exhibits marked P-Resumes-1-7; P-IEPs-2-7; P-Letters-18-31, A-Z, A1-A33; P-Evaluations-4-20; P-Lindamood Bell Evaluations/Recommendations-21-27; P-Lindamood Bell Progress Updates-28-31, A-H; P-Lindamood Bell Mileage-I-J; P-Wilson Language WADE User’s Guide-K; P-Wilson Language Lesson Plans-L-M; P-Wilson Time Tracking Sheets-O; P-Wilson Mileage Tracking-P; P-Wilson Letters-Q-X; P-School Tests Grade 8-y-Z, 1); P-School Tests Grade 7-2-4; P-Progress Reports, Report Cards, MCAS-5-31, A-G; P-Evidence-H-L; School District’s exhibits marked S-1 through S-36; and approximately 15 hours of recorded oral testimony.
1. Whether Parents are entitled to reimbursement for transportation expenses related to speech language services during the 2005-2006 school year;
2. Whether Parents are entitled to reimbursement for transportation expenses related to Lindamood-Bell services during the 2005-2006 school year;
3. Whether Parents are entitled to reimbursement for transportation expenses related to Wilson services during the 2005-2006 school year;
4. Whether Parents are entitled to reimbursement for Lindamood-Bell testing and services obtained by Parents during the 2005-2006 school year;
5. Whether Parents are entitled to reimbursement for Wilson tutorial provided to Student during 2005;
6. Whether Student requires prospective Lindamood-Bell services and transportation to said services in order to receive a free appropriate public education in the least restrictive environment;
7. Whether Student requires an additional fifty-seven minute speech language session per week in order to receive a free appropriate public education in the least restrictive environment;
8. Whether Student requires the Fast Forward II software in order to receive a free appropriate public education in the least restrictive environment.
SUMMARY OF THE EVIDENCE
1. The student (hereinafter, “Student”) is nearly fifteen-years-old. Student is eligible for special education services due to a language based learning disability and a mild to moderate central auditory processing disability. (S-1, P-) Student was evaluated in July 2006 and with a moderate mixed receptive and expressive language disorder. (P-Evaluations-10) The most recent neuropsychological evaluation completed on April 18, 2005, indicates Student’s overall intellectual functioning is within normal limits, with an I.Q. of 99. Her verbal and nonverbal intellectual skills fall in the average range and her working memory scores were in the low average range. Her processing skills are in the very superior range. (P-Evaluations-13) Student has been educated in inclusion programs in the school district. (Special education administrator)
2. Among other services, Student received Wilson reading tutorials during the 2002-2003 school year. Student was at Step 7 in or around November 2002 when the tutor became ill and stopped tutoring Student. (Mother, S-18) Parents obtained the services of a private Wilson tutor in or around April 2004. Parents paid for her services out of pocket until the school district began paying for her services in or around May 2004. The school district continued paying for those services through the summer of 2004 at which time Student had reached level 11 of the Wilson program. (Mother, P-Letters-19) In September 2004, the school district began providing Student’s Wilson instruction with a district teacher. In November and December 2004 a different tutor took over the Wilson instruction due to Mother’s concern that the prior tutor was not a level two certified Wilson instructor. (Mother)
3. Parents partially rejected Student’s IEP for the period from May 2004 – May 2005. The service delivery grid included academic support within Student’s English Language Arts class for three hundred minutes per cycle. Additionally, the grid provided for direct services in speech and language for forty-five minutes per week, reading with the special education teacher for one hundred twenty minutes per week, and comprehension with the special education staff for fifty-seven minutes per week. (S-7, P-IEPs-9)
4. The Parties entered into a mediated agreement dated September 17, 2004 and signed by Parents and the special education administrator. The signed mediated agreement fully accepted the May 2004-May 2005 IEP. The agreement increased Student’s reading services to 180 minutes per week and included the following relevant provision. “This service is being provided to allow [Student] to complete the final book of the Wilson program. Upon successful completion of book 12 this tutorial will end.” (S-29) Mother understood when she signed the mediated agreement that upon Student’s successful completion of Book 12, the Wilson tutorial would end. (Mother)
5. Student completed level 12 in December 2004. In response to Mother’s requests for a letter indicating the date Student completed Wilson Step 12, student’s special education teacher (#1) sent Mother a letter dated February 7, 2005. That teacher indicated that the last day she provided Wilson services to Student was December 22, 2004. She wrote a progress report which indicated Student completed the twelve steps of the Wilson Reading Program. That special education teacher (#1) wrote, “This successful achievement and results from the Step 12 Post Test enabled [Student] to graduate from direct instruction of the [Wilson Reading Program.] She indicated Student met the post-test requirements for Step 12 by “1.Reading 15/15 real words with automaticity; 2. Reading 15/15 nonsense words with automaticity; 3. Spelling 15 real words correctly utilizing knowledge of spelling options; 4. Spelling 5 nonsense words correctly utilizing knowledge of spelling options.” The progress report concluded by stating that Student successfully mastered the Wilson Language System. (Mother, S-16, Special education teacher (#1))
6. From January 2005 through June 2005 Parents privately hired someone to tutor Student in the Wilson program between two and three hours per week. (Mother) She asked the school district to continue funding Student’s Wilson tutoring as Student’s “stay put” placement and then later sought reimbursement from the school district which was denied. (Mother, P-Letters-N)
7. Special education teacher (#1) is a certified special education teacher in the school district with a bachelor’s degree in education and a Master’s degree in reading. She is certified in both level one and two of Wilson and is a certified trainer for both levels. She has been providing training at the school district since 2002. She took over Student’s Wilson tutorial in November and December 20044 . Special education teacher (#1) spoke to the previous tutor who she had trained in Wilson and who she considered to be one of the top Wilson instructors at the time, to determine what level she had completed with Student. She was informed that Student had finished Step 11 and was ready to begin Step 12 which special education teacher (#1) described as the advanced topics. Special education teacher (#1) reviewed Student’s Wilson notebook and found it to be up to date when she began working with her the week after Thanksgiving. Student did well with the instruction and completed Step 12 and post-tested out of the program after ten sessions ending on December 22, 2004. Special education teacher (#1) explained that Mother was aware that Student was near the end of the Wilson program because she spoke to her when Mother dropped Student off and picked her up.
8. Special education teacher (#1) explained that it would not make sense to continue to provide Wilson instruction after a Student completes the program. Students are taught to use their notebook as a reference and she encouraged Student to do so. She explained that Wilson is a spiral program and it builds upon itself. In order to complete level 2 a student would need to have grasped the skills taught at level 1. She is confident that when Student completed level 12 that she had successfully learned the requisite skills because she reviewed other levels with her during the course of their sessions and she constantly questioned Student for concepts. She also reviewed all of the steps and syllable types via word cards used during her sessions with Student. She explained that Wilson does not require that the WADE assessment be given at the end of Step 12. Special education teacher (#1) has provided Wilson services to 100-200 students and has never continued providing Wilson services after completing Step 12. (Special education teacher (#1))
9. On April 18, 2005, Student underwent a neuropsychological evaluation. On the WISC IV, Student received the following standard scores: Verbal Comprehension – 91, Perceptual Reasoning – 96, Working Memory – 86, Processing Speed – 131, Full-scale I.Q. – 99. Within the verbal comprehension domain Student scored in the average range on measures of vocabulary development, abstract verbal reasoning, and practical knowledge.
The tester noted Student’s low average receptive and expressive vocabularies and low average higher-level receptive language functioning. Student’s higher-level expressive language functioning and phonemic fluency was in the average range. Semantic fluency was in the high average range. Student demonstrated average phonological awareness. Her memory for phonological information and phonological speed were at the lower end of the average range. Student’s immediate and delayed verbal memory skills were at or above normal limits and rote memory skills were below normal limits. Student showed strong cognitive flexibility and her ability to organize materials is strong.
The tester made a series of recommendations, most of which were adopted by the Team when they reviewed the evaluation. She did not recommend Lindamood-Bell services or recommend any services that were different in kind to those being provided by the school district5 . (P-Evaluations-13)
10. On April 22, 2005 Mother brought Student to the Lindamood-Bell Center for an assessment due to her belief that Student was having extreme difficulty with comprehension and fluency and continued to have difficulty with encoding skills and vocabulary. (Mother)
11. On May 20, 2005 the Team convened to draft Student’s 2005-2006 IEP. During the meeting the Team offered to provide Student with a small group or resource setting instead of regular education. Parents did not agree to the resource room setting. The district also proposed a language-based learning center in Raynham. Parents observed the program and did not believe that the environment would meet Student’s needs. (P-IEPs-12) The Team proposed an IEP that included consultation from the speech language therapist and between the academic support center and the special education teacher. The B-grid contained speech language services for thirty minutes per week and a co-taught English Language Arts class. The C-grid contained speech language therapy for 45 minutes per week and reading with the special education teacher for 57 minutes per week. The IEP also contained summer services consisting of ten hours per week of comprehension tutoring. (S-6, P-IEPs-12)
12. On June 15, 2005, Mother sent a letter to the special education administrator rejecting portions of the May 2005 to May 2006 IEP and informing the district that Parents intended to enroll Student in the Lindamood Bell Seeing Stars program for the summer. Parents rejected the reading services offered in Student’s IEP and stated that they intended to enroll Student in Lindamood Bell’s Visualizing and Verbalizing program during the school year. Parents requested that the school district reimburse them for the cost of both programs and for transportation related to the programs. (P-Letters-O, Mother)
13. The district’s special education administrator sent Parents a letter dated June 21, 2005 rejecting their request to pay for the Lindamood-Bell Visualizing and Verbalizing program for the summer. Additionally, she reiterated the Team’s opinion that Student would benefit from extended school year services for reading comprehension. She offered to provide Student with a summer program “that would also incorporate the visualization with the comprehension piece,” Educator’s Publishing Service’s “Reading Comprehension in Varied Subject Matter.” The special education administrator offered to provide the program throughout the school year as the “Multi-sensory Reading Program to support goal #4 as stated in [Student]’s IEP.” (P-Letters-R, S-14) Parents submitted a second letter, dated August 1, 2005, to the special education administrator explaining their reasons for requesting reimbursement for the Lindamood-Bell services.
14. The Center Director at the Lindamood-Bell Center is responsible for overseeing the delivery of instruction and the instructional quality. She also oversees the administration of Lindamood-Bell’s testing battery and evaluates the results of their testing to determine appropriate Lindamood-Bell services to recommend for students. She has a bachelor’s degree in theater. She does not have a degree in education, does not have any teaching certification or licensure and does not have any background in special education. She has never worked in a school setting and prior to working at the Lindamood-Bell Center (hereinafter, “LBC”) was employed as an office manager.
“Clinicians” at the LBC are not required to have degrees in education or experience in teaching. The Center Director explained that when a student first comes to the LBC one of the LBC clinicians administers a battery of tests and she, as the Director, makes initial recommendations regarding which programs would be beneficial for the student and how long the services should last. Typically, after the initial period of services, a clinician re-evaluates the Student and if the Student requires additional services recommendations are made. An additional re-evaluation would be done after the next increment of services.
Student first presented for testing at the LBC on April 22, 2005. The Director could not remember who had conducted Student’s testing. The test battery consisted of: the Peabody Picture Vocabulary Test-III, the Detroit Tests of Learning Aptitude-4 Word Opposites, the Detroit Tests of Learning Aptitude Verbal Absurdities, the Detroit Tests of Learning Aptitude-2 Oral Directions, Test of Problem Solving-Adolescent, the Woodcock Reading Mastery Test-NU Word Attack, the Slosson Oral Reading Test –R, the Wide Range Achievement Test-Revised/3 Spelling and Arithmetic, the Gray Oral Reading Test, the Gray Oral Reading Test 4, the Lindamood Auditory Conceptualization Test-3, informal tests of writing, and a “symbol imagery test.” (P-Lindamood-21)
Based upon the results of Student’s pre-test, the Center Director recommended that student receive “intensive sensory-cognitive instruction 4 hours daily, 5 days per week for 9-12 weeks, for 180-240 hours” in both The Seeing Stars program and the Visualizing and Verbalizing for Language Comprehension and thinking program. She described the former as providing sensory-cognitive development of Phonemic Awareness and Symbol Imagery and the latter as providing sensory-cognitive development of Concept Imagery. (Center Director, P-Lindamood-21)
Student began receiving services at the Lindamood-Bell Center in July 2005. Although the center Director worked directly with Student she was unable to estimate how many hours she worked with her. She worked with her at least once every three weeks for an hour and she observed Student’s services approximately once per week. A consultant worked with Student. The center Director testified that the consultant had a bachelor’s degree, but she was unsure of its subject area.
Student received over 400 hours of services from Lindamood-Bell at a rate of $79.00 per hour. Student’s total bill for services was $34,081.00. The center Director acknowledged that student had received a particularly intensive amount of Lindamood-Bell services and attributed it to Student’s great level of need. She stated that Student had been there for over one year and still has a lot of progress to make. (Center Director)
15. Student’s seventh grade special education teacher is a certified special education teacher and was five weeks from completing her Master’s degree in education at the time of hearing. She co-taught Student’s seventh grade English class. She explained that all books that students were required to read were read aloud and/or listened to on DVDs. She always reviewed the students’ comprehension before beginning a new chapter. Student appeared comfortable and at ease in the English class. Student was often given reading assignments and asked to answer questions as a means of assessing her comprehension. Most of the time Student successfully answered the questions. All of the materials read in class were seventh grade level material. When Student was assigned to read a book independently for a book report the teachers allowed her to choose a book that was at a slightly lower level. Student chose fifth or sixth grade level reading for her independent reading. Student completed her homework ninety-nine percent of the time and it was always done well.
16. Student’s seventh grade special education teacher testified that she administered the WIAT to Student in May 2006 to assess her English Language Arts skills. Student’s reading comprehension was assessed at the seventh grade level, which was where she (seventh grade special education teacher) would expect it to be. (S-18) Word reading was noted as a weakness for Student as was listening comprehension. Student also scored well above grade level in some areas. Student’s classes during seventh grade were regular education classes with extra support in science and history and a co-taught model in English Language Arts. Student was graded in the same manner as her regular education peers and received Bs and Cs.
17. In October 2005 Mother learned that the school district had not yet hired a speech language pathologist to deliver Student’s services. The school district hired a speech language pathologist from another district to deliver Student’s services and compensatory services for the sessions she had missed. The services were provided at that speech pathologist’s home after school as she informed Mother she was only available during after school hours. (Mother) The speech pathologist offered Mother two different time slots and Student was enrolled in C.C.D. during one of the offered time slots. Thus, the only time available for Student’s speech therapy was from 3:00 to 4:00 p.m. Mother would pick up Student from school and drop her off, return to her home to meet her other children at the bus stop, then return to pick up Student. (Student)
18. A speech language pathologist was asked to be a consultant on this case by and for the school district. She has a Master’s degree and forty-five additional credits in speech pathology and audiology. She was surprised to hear that clinicians at Lindamood-Bell administer a number of formal assessments to clients. She explained that only reading specialists administer the evaluations used by Lindamood-Bell in her school district. She received training in graduate school in diagnostic testing via a semester long course that explained how to interpret test results and read testing manuals. She has taken two of the four Lindamood-Bell classes and uses the program. She reviewed the Lindamood-Bell records and billing pertaining to Student. She noted that she was surprised that Student received as many as 32-54 hours of the Seeing Stars program.6 She explained that the Lindamood-Bell testing manual says that the Visualizing and Verbalizing program is supposed to be approximately an eight to twelve week course consisting of one-hour sessions five days per week. She explained that if Visualization and Verbalizing is done as the manual dictates it would consist of one-hour sessions five days per week for eight to twelve weeks and would total approximately sixty sessions. Student was billed for 431 sessions at a rate of $80.00 per hour.
The manual also prescribes a format for recording progress notes and Student’s notes were not written in that format. The manual states that a progress note must be taken every session, but there was not a note taken for each of Student’s sessions. (Consulting speech language pathologist)
19. Student’s eighth grade English Language Arts and pull-out Study Skills and Reading teacher is certified in special education and English Language Arts (hereinafter, “ELA”). Student is somewhat self-conscious about asking him questions during the larger ELA class and prefers asking him questions during the smaller group activities or pull-out sessions. During ELA, students sit at tables of four students and he carefully chose the peer models who sit with Student to include high performing friends of Student. Student has the foundation skills for reading comprehension and is able to read and understand grade level books and material. Her reading comprehension skills are average compared to the entire class. Student requires very minimal individual assistance during ELA. If he notices by Student’s body language that she is not understanding something he will go over to her table and address all four students to avoid singling her out. She will then ask him if she has a question.
He uses the Lexia computer program with Student during pull-out reading. Lexia is similar to Wilson in that it progresses through levels of phonetic awareness and builds phonics skills. Student has a limited functional vocabulary and the eighth grade special education teacher thinks Lexia has been helpful for her, but she did not like using it. He does not think Student requires any services other than those proposed in her IEP. He does not think that she requires any additional reading programs.
During Student’s pull-out class, the teacher instructs six eighth graders and focuses on reading comprehension approximately two days, study skills approximately two days, and uses Lexia on the fifth day. Student remains on task and is a diligent worker. He assists her in reading her history textbook, which contains chapters that are written at above grade level, and practices active reading strategies. He asks questions, makes predictions, reviews materials from history class and helps the students to create study guides and graphic organizers. Student requires a great deal of clarification regarding homework assignments with which he assists her, although that is not the primary goal of the class. None of Student’s teachers has ever told him that they thought his or her class was too difficult for Student. (Student’s eighth grade special education teacher)
20. Student’s English language arts (ELA) class during eighth grade was co-taught by a district English language arts teacher who has a bachelor’s degree in elementary education and a Master’s degree in Reading plus an additional sixty graduate credits. She focuses on reading instruction during class and utilizes a reading workshop approach in which students choose a book and she provides instruction in reading strategies. The reading portion of the class is based on active reading strategies and comprehension. Students read during class and work on graphic organizers to assist them in using prior knowledge and making connections in the stories they are reading. She knows that Student comprehends the books that she reads because Student is able to pick out the most important parts of the book and write them on her graphic organizers. The ELA teacher’s lessons focus on strategies for reading comprehension, she asks students about prior knowledge, and helps them make connections. She works on using vocabulary, visualizing, and making inferences. She teaches both incidental vocabulary and from a vocabulary workbook. Student continues to require work on vocabulary and her ELA teacher recommends that she continue to read to improve. Student participates at an above average level during small group activities and at an average to below average level in the large group. She has not required much support and earned a B in ELA. She believes Student has done well in the class and thinks Student’s vocabulary will improve if she reads daily and keeps a journal. (Eighth grade English language arts teacher)
21. The school district’s speech language pathologist has a Bachelor’s and Master’s degree and is certified. She has worked with Student since January 2007. She has done a formal assessment of Student’s vocabulary in which she scored in the average range. She has worked on vocabulary with Student using curriculum words and activities from workbooks. Student has made good progress. The district’s speech language pathologist thinks it is appropriate for Student to continue to receive one fifty-seven minute session of speech language therapy next year. None of the eighth graders who she sees receive more than one session and she believes Student benefits more from time in the resource room focusing on curricular materials. (Speech language pathologist)
FINDINGS AND CONCLUSIONS:
Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA)7 and the state special education statute.8 As such, she is entitled to a free appropriate public education (FAPE). Neither her status nor her entitlement is in dispute.
The burden of persuasion in an administrative hearing challenging an IEP is placed upon the party seeking relief. Schaffer v. Weast , 546 U.S. 49, 126 S. Ct. 528, 534, 537 (2005) In this case, the Parents are the party seeking relief, and thus have the burden of persuading the hearing officer of their position.
Transportation: speech language services during the 2005-2006 school year
There is no dispute that Student received compensatory speech language services during the 2005-2006 due to the school district’s inability to fill the position for a speech and language pathologist. There is some dispute regarding the reason Student received the compensatory sessions during after school hours at the home of speech pathologist hired from another district, necessitating Mother’s providing transportation from the school back to home for Student. Mother testified that she requested that the school district compensate her two round trips per fifty-seven minute session. Mother explained that when she contacted that speech pathologist relative to scheduling Student’s services, she was only available during after school hours. She also testified that she was unable to wait for the fifty-minute session to drive Student home because she had to return home to meet her other children when they got off the bus. The speech pathologist did not testify regarding the times that she was available to provide Student’s tutoring. The district’s special education administrator testified that she stays out of the scheduling of services when she hires an outside tutor and therefore was not privy to the conversations concerning scheduling the session. Since Mother is the only person to testify with direct knowledge of the scheduling to testify, I credit her testimony. Furthermore, services provided pursuant to an IEP are required to be free. The school district was obligated to provide Student with speech language services pursuant to an IEP and Parents could reasonably expect not to be required to incur costs associated with receiving services to which Student is entitled. Because the only available time for this particular service was after school, Parent was required to provide transportation from school to the speech pathologist’s home and back to student’s home. It would be unreasonable for the district to require that Mother remain during the entire session, as it was the district that failed to make Student’s speech language services available to her during the day. The school district has already provided Parents with reimbursement for one round trip per session. I find that Parents are entitled to reimbursement for the second round trip necessitated by Mother’s responsibilities to her other children. The school district shall submit payment to the Parents for the remaining trips made between the school, the speech pathologist’s house, and Student’s home. This order is limited solely to transportation related to the compensatory speech language sessions at that speech pathologist’s home during the 2005-2006 school year.
There is no dispute that the school district stopped providing Student with Wilson reading services in December pursuant to a mediated agreement which amended the 2005-2006 IEP and was accepted by the Parents. The amended IEP (via the mediated agreement) stated in plain language that, “This service is being provided to allow [Student] to complete the final book of the Wilson program. Upon successful completion of book 12 this tutorial will end.” (S-29) Any right to “stay put” was extinguished when Parents accepted the amended IEP/mediated agreement. The district relied upon Parents acceptance and provided the Wilson services for the period that it was obligated to provide the services. Student had no right to continue Wilson services after she completed book 12. Although Mother testified that the school district should have assessed Student’s Wilson knowledge by administering the WADE after Student completed book 12, the accepted IEP did not require that Student be administered the WADE. Mother testified that Wilson requires a final assessment via the WADE. Special education teacher (#1), a certified Wilson trainer, testified that there is no requirement that a student be assessed via the WADE to complete the Wilson program. She credibly testified that once a student completes book 12 there is no reason to continue to provide Wilson services. She also credibly testified that based upon her direct knowledge gleaned through providing direct services to Student, Student successfully completed the Wilson reading program. I credit special education teacher (#1)’s testimony and find that Parents have not met their burden of persuasion with respect to their claim that Student had “stay put” rights relative to the Wilson services.
Even under an analysis that does not consider “stay put” rights, I cannot find any basis for reimbursing Parents for the Wilson services provided by their privately hired tutor. In general, parents are entitled to retroactive reimbursement for expenses associated with a unilateral placement if “1) the IEP and placement proposed by the school are deemed inappropriate, and 2) the placement in the which the parents placed the child is found to be appropriate.” Doe v. West Boylston School Committee , et al., 4 MSER 149, 161 (D. Mass. September 14, 1998) citing School Committee of Town of Burlington v. Dept. of Education of Mass ., 471 U.S. 359, 369-70 (1985). Pursuant to Doe v. West Boylston School Committee , 4 MSER 149, 161 (D. Mass. September 14, 1998), the placement selected by parents must “provide personalized instruction, with sufficient support services to permit [Student] to benefit educationally. Additionally, the services offered in the private placement must have been reasonably calculated to enable [Student] to achieve passing marks and advance from grade to grade.” Doe v. West Boylston School Committee , 4 MSER 149, 161 (D. Mass. September 14, 1998) If the public school program is deemed inappropriate, and the private placement was appropriate, the hearing officer may grant any relief (s)he deems appropriate, including reimbursement. Florence County Sch. Dist. Four v. Carter , 510 U.S. 7, 12-13 (1993) Thus, The standard to be applied to cases where Parents seek reimbursement for services they privately obtained for Student is outlined as follows. If a school district fails in its obligation to provide FAPE to a student with a disability, parents may enroll their son or daughter in a private school and seek retroactive reimbursement for the cost of the private school.9 Parents are entitled to reimbursement for their out-of-pocket expenses only if I conclude not only that the proposed IEP failed to provide FAPE, but also that the privately-provided educational services were appropriate.10 Determination of reimbursement is a matter of equitable relief.11
In the case at bar, Parents have not met their burden of persuasion with respect to the first prong of the analysis. They have not shown through credible evidence that the Wilson services provided to Student by Special education teacher (#1) were inappropriate, nor that Student continued to require Wilson services after she completed Book 12. Although Parents’ exhibit book contained some letters written by their privately hired tutor, who continued providing Student’s Wilson services after she completed Book 12 with Student’s special education teacher (#1), the Parents’ privately hired tutor did not testify at the hearing. I was unable to determine her credibility or ascertain her level of experience in assessing Student’s needs via Wilson services. On the other hand, Student’s special education teacher (#1) testified that she was a Wilson certified trainer of instructors with many years of experience in providing Wilson services and assessing students’ needs via Wilson instruction. She credibly testified that Student demonstrated knowledge of all of the Wilson steps and met the Step 12 Post-Test requirements on December 22, 2004. (See S-16) Parents were not able to meet their burden of persuasion with respect to reimbursement for Wilson services. Because I have found that Parents were unable to show that Student had not been provided with appropriate Wilson tutoring or that she required additional services to receive a free appropriate public education, I hereby deny Parents’ request for reimbursement of the costs associated with the private Wilson tutoring they provided. For the same reason, I also deny reimbursement for the cost of transportation associated with the provision of the services.
Lindamood-Bell Reimbursement/Transportation/Prospective Services
To determine whether Parents are entitled to reimbursement for Lindamood-Bell services and associated transportation I turn to the analysis outlined above. I must first look to the services that Student was receiving when Parents made the decision to provide Student with Lindamood-Bell services and seek reimbursement for the same. The IEP proposed for Student at the May 2005 Team meeting proposed that Student continue in the mainstream with a co-taught English Language Arts Class, speech 1 x 45 minutes per week and reading once per week with the special education teacher. Additionally, the district offered to provide ten hours per week of reading comprehension tutoring. The district did not provide a great deal of evidence as to the content of the proposed reading comprehension program, but Mother was also not able to meet her burden of showing the proposed program was inappropriate for Student. Mother testified that she had spoken to the publisher of the proposed reading comprehension program and he had told her that the program was inappropriate for Student. However, she did not provide any written documentation of her conversation (other than notes handwritten across an exhibit pertaining to the proposed program). She did not present the publisher as a witness nor provide a letter from the publisher regarding the purported inappropriateness of the program for Student. Because neither party met its burden of demonstrating by a preponderance of the evidence that the comprehension program proposed by the school district was either appropriate or inappropriate, I must find that Parents failed to meet their burden as to the inappropriateness of the services offered by the school district.
With respect to the Lindamood-Bell services Student received during the school year, I look to the appropriateness of the services provided to Student during her seventh grade. Student’s seventh grade special education teacher testified regarding the services she provided to Student during the seventh grade and Student’s performance. She presented as an engaged and enthusiastic teacher. She credibly testified that Student generally was successful in answering comprehension questions and was able to read grade-level material. She also testified regarding the results of the WIAT she administered to Student. The WIAT assessed Student’s reading comprehension to be at the seventh grade level in May 2006. It reasonably follows that the services that she was receiving at the time were providing her with an appropriate education. Parents were not able to rebut Student’s seventh grade teacher’s testimony. Therefore, I find that Parents have not met their burden of demonstrating that the program provided to Student during the 2005-2006 school year was inappropriate.
Even though I have found that the Parents have not met their burden with respect to prong one of the analysis pertaining to reimbursement, I must move to the second prong of the analysis to address Parents’ claim for prospective Lindamood-Bell services.
At the outset, I note that none of the many independent evaluators who assessed Student recommended that she receive Lindamood-Bell services.12 The neuropsychological assessment of Student on April 25, 2005 did not recommend Lindamood-Bell services. In fact, that evaluator reported that Student’s full scale I.Q. was a 99, within the average range and that the scores she reported all fell within the average to low-average range. She made a series of recommendations for services, most of which were adopted and incorporated into Student’s IEP by the school district. She recommended that Student continue to receive reading services focusing on reading comprehension, but did not recommend that Student be pulled out of school to receive such services.
Despite Student’s average to low-average scores, the LBC Director testified that Student required intensive services. When comparing the credentials of the people assessing Student’s needs it is crucial to note that the neuropsychologist with a Psy.D., did not recommend intensive services outside of the mainstream for Student. However, the center Director, who holds a bachelor’s degree in theater and has no education related degree, license, certification or experience in education recommended that Student receive intensive services. In fact, over the course of the time that Student received services from the LBC, the Center Director recommended that she receive over 400 hours of services for which Parents were billed $34,081.00. I find that the Center Director was not qualified to make recommendations for Student’s special education services given her lack of credentials and her testimony that the clinicians who work at the LBC are not required to have an educational degree and that she was trained to administer evaluations and interpret results and make recommendations by other Lindamood-Bell “clinicians.” It is baffling that the Center Director would conduct her own assessment when Student had been assessed by an appropriately credentialed neuropsychologist on April 18, 2004.
The Center Director was not able to provide useful testimony regarding the services provided to Student. She did not remember what the credentials of the “clinicians” who provided Student’s services were. Additionally, despite the fact that Student spent in excess of 400 hours at the LBC, the Center director did not seem to have very much knowledge about Student. She testified that she worked directly with Student and observed her session approximately once per week, but she was unable to remember details about the sessions and did not seem to know Student. Additionally, she was unable to recall whether she or another “clinician” had administered Student’s pre-test and follow up testing.
Despite Student’s average to low-average scores on the neurological assessment she received shortly after beginning Lindamood-Bell services and despite that fact that Student received over 400 hours of Lindamood-Bell services, the center Director testified that Student continued to require services from Lindamood-Bell and recommended that she receive a “boost” in the Seeing Stars program and receive additional sessions of the Visualization and Verbalization program.
Finally, the school district’s consulting speech and language pathologist, a master’s level speech language pathologist who has received training in Lindamood-Bell, testified that the amount of services provided to Student far exceeded those anticipated in the Lindamood-Bell manual13 . Her testimony was unrebutted by the Parents.
Based upon the foregoing, I find that the Lindamood-Bell services were not appropriate for Student, and therefore I deny Parents’ claim for reimbursement for services already provided. Additionally, I deny Parents’ claim for transportation costs associated with the Lindamood-Bell services. Finally, I deny Parents’ request for prospective Lindamood-Bell services and transportation.
Additional Speech Language Therapy
Parents were unable to meet the burden of showing that Student requires more than the one fifty-seven minutes session that her 2007-2008 IEP provides. Parents relied upon the report submitted by a Ph.D., CCC-SLP, which recommended that Student receive “at least two sessions of direct services per week.” The recommendation did not specify the duration of each session and the evaluator was not made available to testify as to whether he believed one fifty-seven minute session would provide Student with FAPE. The school district’s speech-language pathologist, who has worked with Student since January 2007, testified that she believes that one fifty-seven minute session per week is appropriate for Student. Parents were not able to rebut her testimony and did not meet their burden with respect to this issue. Therefore, I find that Student does not require a second weekly fifty-seven minute session to receive a free appropriate public education.
Fast Forward II Software
Parents did not present any testimony regarding Student’s need for the Fast Forward II software. The record contained only a passing reference to the software included in a report in which the writer stated Student “may benefit” from the software. Parents have been unable to meet their burden and their request that Student be provided with the Fast Forward II software is denied.
Based upon the foregoing, I order that THE SCHOOL DISTRICT reimburse Parents for one round trip per session for the compensatory speech language sessions that were provided at the home of the speech pathologist from another district that the school district hired to provide some tutoring to Student. All other claims for relief are denied.
By the Hearing Officer,
Catherine M. Putney-Yaceshyn
Dated: October 5, 2007
This decision has been modified for public dissemination. The student’s name and all other information that could reasonably lead to the identification of the student has been rephrased or removed. This is not the “official record” decision.
The hearing officer offered several earlier dates, but the parties were not mutually available until the above dates.
Mother requested that the school district provide a tutor with level 2 certification because Student was being instructed in the upper level of the Wilson program. (Mother, Special education administrator)
The tester recommended that Student receive summer services in the area of comprehension and the Team adopted her recommendation and offered Student summer services. (P-IEPs-12, S-6)
She noted that the records reflected that Student received between 32 and 54 hours of Seeing Stars Services. She indicated that the records were somewhat confusing and she could not ascertain the exact number of hours Student received.
20 USC 1400 et seq .
MGL c. 71B.
20 USC 1412 (a)(10)(C)(ii); Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 370 (1985).
Florence County Sch. Dist. Four v. Carter , 510 U.S. 7, 11-13 (1993).
Diaz-Fonseca v. Commonwealth of Puerto Rico , 451 F.3d 13 (1 st Cir. 2006); Roland M. v. Concord Sch. Comm., 910 F.2d 983, 999 (1st Cir. 1990).
Although the evaluator, holding an Ed.D., CCC-A/SLP, FAAA, made mention of the Lindamood-Bell Visualization and Verbalization program in the July 14, 2005 addendum to his June 28, 2005 Auditory Processing Consultation Report, he indicated that it would be an appropriate program for Student “if a qualified speech-language pathologist who understands auditory processing were to employ the V/V program after working on the objectives for lexical extraction outlined above, this would be an appropriate program for [Student.]” It is noteworthy that the evaluator never met Student and only reviewed selected reports. He did not make reference to reviewing any of Student’s IEPs and did not testify at the hearing. It is further noteworthy that the Visualization and Verbalization program offered at LBC was not provided by a speech language pathologist.
The witness referred to the Lindamood-Bell training manual several times during the hearing. The manual was not in evidence. Parent’s advocate sent a letter to the hearing officer after the hearing had concluded, dated July 11, 2007, complaining that the witness should not have been able to refer to the manual. However, she made no objection during the hearing and did not question the witness regarding the manual on cross-examination.
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