Cohasset Public Schools – BSEA # 09-4922
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Cohasset Public Schools BSEA # 09-4922
This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL c. 71B), the state Administrative Procedure Act (MGL c. 30A), and the regulations promulgated under these statutes.
A hearing was held on June 3, 4, and 8, 2007 in Malden, MA before William Crane, Hearing Officer.1 Those who participated in or were present for all or part of the proceedings (including by telephone) were:
Melody O’Neil Assistant Director of Admissions, Landmark School
Christine Harty Admission Counselor, Landmark School
Elizabeth Baker Neuropsychologist, Franciscan Hospital for Children
William Fish Teacher, Cohasset Public Schools
Mary Dugan Speech-Language Pathologist, Cohasset Public Schools
Maureen Berry Speech-Language Pathologist, Cohasset Public Schools
Michael Hogan Special Education Liaison, Cohasset Public Schools
Aron Blidner School Psychologist and Team Chair, Cohasset Public Schools
Linda Gill Director of Student Services, Cohasset Public Schools
Carolyn Lyons Observer Attorney for Cohasset Public Schools
Mary Ellen Sowyrda Attorney for Cohasset Public Schools
The official record of the hearing consists of documents submitted by the Parents and marked as exhibits P-1 through P-32; documents submitted by the Cohasset Public Schools (Cohasset) and marked as exhibits S-1 through S-17; and approximately two and one-half days of recorded oral testimony and argument. As agreed by the parties, oral closing arguments were made on June 9, 2009, and the record closed on that date.
In order to apprise the parties in a timely manner of my findings and orders in this case, an Order was issued on June 12, 2009, in advance of the full text of this Decision. A copy of this Order is attached as Appendix A.
This dispute pertains to an intelligent, hard-working 11 th grade Student who has (and has had for many years) a substantial reading deficit. After many years of services from Cohasset, Student remains far behind her peers in reading fluency and comprehension. An independent educational evaluation was persuasive that, with an appropriately intensive and comprehensive program, Student would likely make progress commensurate with her educational potential, which progress has not occurred over the past three academic years.
Cohasset does not have, within the school district, an appropriately comprehensive and intensive program for Student. Landmark School was determined to be an appropriate placement for this purpose. Cohasset was ordered to place Student at Landmark commencing at the beginning of the 2009-2010 school year.
Parents also requested summer services, but they failed to carry their burden of persuasion on this part of the case.
The issues to be decided in this case are the following:
1. Is the individualized education program (IEP) most recently proposed by Cohasset reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment?
2. If not, can additions or other modifications be made to the IEP in order to satisfy this standard?
3. If not, would placement at the Landmark School satisfy this standard?
4. Is Student entitled to special education or related services during the summer of 2009?
III. FACTUAL BACKGROUND
A. Student Profile
Student, who lives with her Mother and Step-Father in Cohasset, is 17 years old and most recently attended the 11 th grade at the Cohasset Middle High School (High School) for the 2008-2009 school year. She is a friendly, cooperative, conscientious, and dedicated student. Student is also an accomplished athlete, participating in soccer and tennis. She has demonstrated compassion for others through her volunteer work at a local shelter for persons who are homeless. Testimony of Student, Mother; exhibits P-1, P-28, S-1, S-13.
Student has average (or above average) intelligence. She also has Dyslexia and a significant Reading Disorder, resulting in a substantial limitation regarding her ability to comprehend written information. Apart from her disabilities relating to reading fluency and comprehension, Student has average (or above average) language abilities. Student also has difficulties with executive functioning processes—for example, regarding planning and organizing—and she has weaknesses in math reasoning and numerical operations. Testimony of Student, Mother, Baker, Hogan; exhibits P-1, P-28, S-1, S-13.
For at least the past several years, Student has had significant emotional challenges as a result of her long-standing struggles regarding reading and school work in general. These difficulties have not, at least so far, reduced her determination and commitment to do well in school. Student is highly motivated to improve her learning abilities, including her reading skills, and she intends to attend college after graduating from high school. Testimony of Student, Mother, Baker, Hogan; exhibits P-28, S-13.
B. Most Recently-Proposed IEP
The IEP at issue in the present dispute, which is the most-recently proposed IEP for Student, was developed at an IEP Team meeting on March 5, 2009 and covers the period from March 5, 2009 to March 5, 2010—that is, for the end of Student’s 11 th grade and for the majority of her 12 th grade. The IEP calls for Student to be mainstreamed in co-taught classes in English, social studies, science, and mathematics. These classes are taught by a regular education teacher and a special education teacher or aide. In addition, pull-out 1:1 speech-language services are to be provided for 45 minutes, three times per week for the period from March 5, 2009 to June 19, 2009 and then reduced to two times per week starting on September 1, 2009. Academic support services are also to be provided for 45 minutes, four times per week. The IEP also calls for consultation by a speech-language pathologist for 15 minutes bi-weekly and consultation by special education staff for 15 minutes, once per week. Exhibits P-1, S-1.
On March 14, 2009, Mother rejected the proposed placement, which is at the Cohasset High School, but otherwise accepted the services. Exhibits P-1, S-1.
C. Educational History
Student, with her family, moved to Cohasset when she was in the 6 th grade, and she began attending the Cohasset Public Schools at that time. During the 6 th grade year, on January 23, 2004, Massachusetts General Hospital conducted a neuropsychological evaluation of Student. Student had been referred for the evaluation by Mother, who was concerned about her daughter’s continued academic difficulty, particularly regarding reading. The evaluation noted Student’s language-based learning disability (specifically, developmental dyslexia) and that Student was three grade levels behind in her academics. The evaluation also noted the special education and related services that Student was receiving, and then recommended that if Student did not make sufficient progress within the next year, she should be considered for referral “to an educational setting that is dedicated to teaching children with developmental dyslexia (e.g., Carroll or Landmark Schools). Of these, Landmark School offers education through grade 12, which may be helpful if she continues to struggle with reading in the coming years.” Testimony of Mother; exhibit P-20.
At Cohasset during her 6 th , 7 th , and 8 th grade years, Student received most of her instruction in substantially-separate classrooms. Over time, particularly after March of her 7 th grade year, more academic instruction was provided within co-taught, mainstream classes. Student also was provided specialized instruction to address her language deficits, as well as academic support. Maureen Berry, a Cohasset speech-language therapist, provided Student with the speech-language services for 6 th , 7 th , and 8 th grades. Ms. Berry worked on concept development for decoding and application of decoding for meaning, which are foundational skills for comprehension of language. Parents also provided private Orton-Gillingham tutoring after school during these years. There was general agreement among Ms. Berry, Mother, and Student that during this time period, Student made meaningful progress in her reading and writing skills. Ms. Berry testified that on the basis of the science book that Student was using in 7 th grade, she believed that by the end of 7 th grade, Student was reading independently at the 4 th grade level and was able to read at grade level with sufficient support. Testimony of Student, Mother, Berry; exhibits P-6, P-7, P-8, P-9.
Near the end of Student’s 7 th grade year, in May and June 2005, Cohasset conducted a three-year evaluation that included a speech-language evaluation, psychological evaluation, and academic achievement evaluation. Ms. Berry conducted the speech-language evaluation. She testified that, by this time, Student had developed important language skills, and there was no indication that Student had difficulty with word retrieval. Testimony of Berry; exhibits P-22, P-23, P-24.
During 8 th grade when an IEP was prepared for 9 th grade, Cohasset and Parents generally agreed that Student had made sufficient progress in her language skills so that Student should be integrated into the Cohasset High School curriculum. When Student entered the Cohasset High School for 9 th grade in the fall of 2006, she participated in mainstream academic classes, with no speech-language services. Student’s mainstream academic classes were co-taught by a regular education teacher and a special education teacher or aide. However, over the course of 9 th grade, it became apparent that Student required a resumption of specialized services, and the IEP that began in the spring of 9 th grade (for the period 5/21/07 to 5/21/08) was written to provide pull-out services for speech-language services (for 45 minutes, twice per week) and for academic support (for 45 minutes, four times per week). Cohasset’s High School speech-language pathologist (Ms. Dugan) began working with Student in May of 2007 (i.e., near the end of her 9 th grade year) pursuant to this IEP. Testimony of Mother, Dugan; exhibit P-10.
Since May 2007, Ms. Dugan has been working with Student on her language and reading skills using an Orton-Gillingham approach, which is multi-sensory with scope and sequence, and includes spiraling back for purposes of reviewing what has been learned. Ms. Dugan opined that, with sufficient support, Student can access grade level text. Testimony of Dugan.
The academic support and specialized services reflected within Student’s 9 th grade IEP (for the period 5/21/07 to 5/21/08) were continued for Student for all of 10 th grade, and for 11 th grade. A temporary increase in speech-language services to three times per week was proposed in 10 th grade. Parents accepted the services (including the increase in speech-language services) and rejected the placement. Nevertheless, the temporary increase in services was never implemented by Cohasset, with the result that Student has continued to receive speech-language services two times per week. Testimony of Mother, Dugan; exhibits P-1, S-1.
In Student’s 10 th grade, in September and October of 2007, Cohasset conducted further evaluations, including a speech-language evaluation and a psychological evaluation. Ms. Berry, who had not provided speech-language services to Student past the 8 th grade, nevertheless conducted the speech-language evaluation and found, for the first time, that Student had substantial deficits with word retrieval—that is, Student had difficulty demonstrating what she knows through oral and written communication and required learning strategies for accessing words—for example, through word mapping and phonemic cues. Ms. Berry testified that, in her opinion, appropriate remediation of this deficit required that speech-language services be increased substantially. In her testimony, she recommended that the current IEP be amended so that Student would receive speech-language services for 45 minutes, five times per week, in 12 th grade; and she further recommended that a word retrieval goal be included within Student’s IEP. Testimony of Berry; exhibits P-6, P-7, P-8, P-9, P-10, S-25, S-26, S-27.
Pursuant to an independent evaluation funded by Cohasset, Student was evaluated by the Franciscan Hospital for Children on December 16 and 17, 2008. The Franciscan evaluation was multidisciplinary, including neuropsychological, educational, and speech-language evaluations and written reports, as well as a multidisciplinary summary report signed by the neuropsychological evaluator, Jennifer DelRey, and her supervisor, Elizabeth Baker. The consensus of the Franciscan evaluators was that Student continued to have substantial language deficits which have not been sufficiently remediated, with the result that Student should now be placed in an educational program that is built specifically around reading remediation, with intensive special education services incorporated throughout the curriculum. Dr. Baker testified that Landmark School would satisfy these recommendations and would be an appropriate educational program for Student. Testimony of Baker; exhibits P-28, S-11, S-12, S-13.
Cohasset declined to write an IEP for a Landmark School placement, instead choosing to continue the same array of special education and related services that Student has been receiving at Cohasset High School. Parents then brought the instant appeal.
IV. LEGAL STANDARDS
A. Free Appropriate Public Education
It is not disputed that Student is an individual with a disability, falling within the purview of the federal Individuals with Disabilities Education Act (IDEA)2 and the Massachusetts special education statute.3 The IDEA was enacted “to ensure that all children with disabilities have available to them a free appropriate public education [FAPE] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.”4 FAPE must be provided in the least restrictive environment.5
In addition to the federal standards included within the IDEA, FAPE is defined by the IDEA to include state educational standards, which may exceed the federal standards .6 The Massachusetts educational standards are found within state statute and state education regulations.7 The Massachusetts special education statute also includes a FAPE requirement.8
The Supreme Court has explained that under the IDEA, FAPE is intended to require special education services that provide a “basic floor of opportunity” to a disabled student,9 allowing the student to access public education .10 Access must be meaningful,11 but need not maximize a student’s educational potential.12
The IDEA requires that the IEP be designed to ensure the effectiveness of special education services.13 More specifically, the First Circuit and federal District Courts in Massachusetts have noted the importance of the IEP resulting in “effective and demonstrable” progress in the “ various educational and personal skills identified as special needs.”14
Similarly, Cohasset’s proposed IEP for Student is framed in terms of her receiving specially designed instruction and accommodations “necessary for the student to make effective progress.” Exhibits S-1, P-1 (page 3). Also, Massachusetts regulations emphasize the need to make effective progress that includes making documented growth in the acquisition of skills. These regulations explain that the progress regarding acquisition of skills must be in accord with developmental expectations and the individual educational potential of the student.15
Similar to these Massachusetts regulations that require progress in accord with the student’s educational potential, the Supreme Court has explicitly rejected a bright-line rule in determining the quantum of educational benefit necessary to satisfy the IDEA. Noting that children of different abilities are capable of greatly different achievements, the Court instead adopted an approach that requires consideration of the potential of the particular student.16 Lower federal courts similarly require the sufficiency of a student’s progress to be judged within the context of his or her individual potential or capacity to learn.17
In addition, Massachusetts special education statute and regulations focus on the importance of developing a student’s educational potential through the delivery of special education and related services. For example, Massachusetts identifies the purpose of its regulations as “to ensure that eligible Massachusetts students receive special education services designed to develop the student’s individual educational potential.”18 Similarly, the Massachusetts special education statute defines the term “special education” to mean “educational programs and assignments including, special classes and programs or services designed to develop the educational potential of children with disabilities.”19 More broadly, the Massachusetts education reform statute sets forth the “paramount goal of the commonwealth to provide a public education system of sufficient quality to extend to all children the opportunity to reach their full potential.”20
A student’s right to FAPE, including compliance with both state and federal standards, is assured through the development and implementation of each student’s individualized education program or IEP.21 The IEP must be custom-tailored to meet the “unique” needs of the particular special education student so that she will receive sufficient educational benefit.22
The issue presented in the instant dispute is whether the programming and specialized services embodied in Cohasset’s proposed IEP are reasonably calculated to provide sufficient educational benefit in the least restrictive environment.23 Parents have the burden of persuading me that Cohasset’s most recently proposed IEP is not appropriate, that it cannot be made appropriate through modification, and that a placement at the Landmark School would be appropriate.24
B. Summer Services
The state special education regulations utilize a regression standard to determine whether a summer program may be appropriate:
An extended year program may be identified if the student has demonstrated or is likely to demonstrate substantial regression in his or her learning skills and/or substantial difficulty in relearning such skills if an extended program is not provided.25
The federal special education regulations employ a FAPE standard:
(a) General . (1) Each public agency shall ensure that extended school year services are available as necessary to provide FAPE, consistent with paragraph (a)(2) of this section. (2) Extended school year services must be provided only if a child’s IEP team determines, on an individual basis, in accordance with §§300.320 through 300.324, that the services are necessary for the provision of FAPE to the child.26
Federal courts have interpreted the federal regulatory standard typically to mean that summer services are appropriate either when a regression standard is met,27 or when the benefits accrued to a disabled student during a regular school year will be significantly jeopardized if he is not provided with an educational program during the summer months, with the parameter of requisite summer services defined by what is necessary to avoid this outcome.28
V. FINDINGS AND CONCLUSIONS
A. Appropriateness of Cohasset’s IEP
The central question in dispute is whether Cohasset’s most-recently proposed IEP (which continues to March 2010 of Student’s 12 th grade year) is reasonably calculated to result in sufficient progress regarding Student’s IEP deficits pertaining to reading, writing, and math disabilities. Notwithstanding her math disability, Student appears to have done well in math in school. Testimony of Lee. Parents have not argued that additional services are needed in this area, and both parties have agreed that math is not an important part of the instant dispute.29 The evidence indicated that Student continues to struggle with written expression, and this topic will be addressed in greater detail within the context of Student’s grades in English for 11 th grade. See part V B, below.
The IEP must be reasonably calculated to result in effective and demonstrable progress in Student’s areas of special education need. See part IV A, above (footnotes 13, 14, 15 and accompanying text). In the instant dispute, there is no greater special education need than Student’s reading difficulties. Student’s educational profile and history (including the special education and related services that have been proposed and provided by Cohasset) make clear that addressing Student’s reading deficit is central to the effectiveness and appropriateness of the IEP. See parts III A and C, above. For these reasons, the remainder of the instant Decision will focus principally upon Student’s reading disability and whether the proposed IEP is likely to address it appropriately.
This dispute is prospective in nature, focusing exclusively on the question of whether Cohasset’s proposed IEP is appropriate for Student’s future education. 11 th grade has now been completed, and therefore the appropriateness of the IEP is considered only for 12 th grade. (Services for the summer of 2009 are also at issue, and are discussed separately below.) For 12 th grade, the IEP proposes substantially the same services that have been provided Student since May of her 9 th grade year—that is, two weekly sessions (for 45 minutes each) of individual speech-language services to address language and reading issues, four weekly sessions (for 45 minutes each) of academic support through a resource room pull-out service, and mainstream classes co-taught by a special education teacher or aide for English, social studies, science, and math. Student has had the same speech-language pathologist (Ms. Dugan) since May of 9 th grade, and Ms. Dugan may continue to be Student’s speech-language pathologist in 12 th grade. Accordingly (and it is not disputed), the best indicator of the progress that Student is likely to make in 12 th grade pursuant to the currently-proposed IEP is the progress that she has made during 10 th and 11 th grades.
The essential issue is whether a continuation of the rate of progress seen over the past two years in reading is sufficient. I first consider Student’s current reading abilities, and then I will review Student’s educational progress that has led to her current status.
It is not disputed that Student has a significant Reading Disorder and Dyslexia, which result in her having substantial difficulty recognizing, understanding, and using phonemes. This difficulty, in turn, results in significant limitations regarding Student’s ability to comprehend written information and thus substantially complicates her ability to learn how to read. Testimony of Baker, Berry, Dugan; exhibits P-28, S-13.
Student’s reading difficulties are clearly reflected in standardized testing. In December 2008, Student underwent a comprehensive, multidisciplinary assessment by Franciscan Hospital for Children. Part of this assessment was a neuropsychological evaluation that included the NEPSY-II, which provides a number of tests covering a wide variety of skills including language. The NEPSY-II language test that involved phonological processing assessed Student’s ability to recognize, pull apart, and put back together phonemes. Phonological processing is a fundamental building block for learning how to read. Substantial difficulty in this area greatly slows down the processing of written information and putting it back together, making reading very stressful. On this test, Student scored at the 9 th percentile, indicating that 91% of the testing subgroup scored higher than Student. A further reflection of Student’s difficulty in this area is found within a NEPSY-II test entitled “speeded naming” in which Student also scored at the 9 th percentile, indicating that even if words are repeated, Student has significant difficulty with reading quickly. Testimony of Baker; exhibits P-28, S-13.
More recent standardized testing, administered by the Lindamood Bell Center on March 30, 2009, evaluated Student’s word attack (or word reading) skills as part of the Wide Range Achievement Test (A, Form Blue). Student scored at the 14 th percentile. Student was also evaluated for her ability to read passages on the Gray Oral Reading Test 4 (Form A). On this test, Student’s rate of reading and accuracy of reading were each scored at the 9 th percentile. Student’s rate and accuracy of reading were combined to give her a reading fluency score at the 1 st percentile. Student’s reading comprehension was scored at the 16 th percentile on this test. Dr. Baker testified that Student’s scores on the NEPSY-II tests, word attack test, and Gray Oral Reading Test were consistent with each other. Also, Cohasset’s speech-language pathologist (Ms. Dugan) concurred with Dr. Baker and the neuropsychological report that Student’s weaknesses with decoding fluency impact significantly upon her reading comprehension. Testimony of Baker, Dugan; exhibit P-29.
Student’s current reading difficulties are well summarized in Cohasset’s most recently-proposed IEP for Student, which was prepared during a meeting on March 5, 2009. Goal Number 1 pertains to “Reading: Decoding/Comprehension.” This IEP goal provides the following explanation of Student’s current performance level: “[Student] is not reading for meaning or applying active reading strategies consistently but exerting her energy in the decoding and fluency process.” Dr. Baker’s testimony, the Franciscan neuropsychological report, and Student’s own testimony regarding her reading difficulties are entirely consistent with this statement, prepared by Cohasset, of Student’s current performance level.
It takes Student so long to read and it takes so much effort that by the time that she has finished a sentence or paragraph, she has difficulty remembering the content of what she has read. In effect, the amount of time and effort required for Student to understand individual words result in a halting and painstaking process that leaves too little opportunity to gain meaning from what is being read. As the Franciscan neuropsychological explained, “an excessive amount of energy and concentration is required for her to decode the words that she is reading, with little reward.” Testimony of Student, Baker; exhibits P-28, S-13 (page 9 of Franciscan neuropsychological report).
In addition, the Franciscan neuropsychological report and Dr. Baker’s testimony indicated that Student did not automatically or consistently utilize reading strategies, and that Student has great difficulty reading for meaning. Student testified that she believes the above-quoted sentence from the IEP (regarding current performance level) to be an accurate reflection of her current reading abilities. Student further testified that through intensive instruction during 7 th and 8 th grade, she was able to learn and apply reading strategies, but she believes that she has now forgotten most of these strategies. Testimony of Student, Baker; exhibits P-1, P-28, S-13, S-1.
It therefore appears that there is little substantive dispute regarding the nature of Student’s disabilities and the implications of these disabilities on Student’s reading fluency and comprehension.
In summary, I find that Student has a fundamental weakness in being able to glean meaning from written language, and this significantly impedes her ability to learn through reading. I further find that reading remains a slow, difficult, and stressful process, precluding Student from using independent reading to access a high school curriculum. Testimony of Baker, Berry, Dugan, Student; exhibits P-28, S-13.
I now turn to the question of what progress Student has been made over the past several years regarding her reading skills.
Ms. Dugan, Student’s speech-language pathologist, testified that Student has made progress over the course of her 10 th and 11 th grade years. Ms. Dugan pointed, in particular, to informal testing (which she referred to as “pretests”) that Ms. Dugan utilized to gauge Student’s areas of need on April 29, 2008 and then again on April 29, 2009. Ms. Dugan testified that in comparing these test results, she noted that in 2009, Student had fewer incorrect responses in the part of the test that involved reading real and nonsense words, that Student did better on dictation, and that Student read aloud fluidly as compared to reading the same passage in a choppy manner in 2008, thereby indicating progress. Similarly, Ms. Dugan testified that Student had advanced from level three in 10 th grade to level four in 11 th grade within the Orton-Gillingham approach. Testimony of Dugan.
Ms. Dugan’s written progress report regarding reading, dated April 29, 2009, stated that Student “continues to work on acquiring increasingly difficult sound/symbol relationships and applying these patterns as she is decoding multisyllabic words. She benefits from on-going previewing/reviewing curriculum vocabulary words.” Exhibit S-15.
I found Ms. Dugan to be a credible witness, but this evidence of progress from her testimony and report, while helpful and relevant, does not provide an objective measure of progress nor does it provide any way of understanding, even informally, how much progress Student actually made during 10 th and 11 th grades.30
Dr. Baker’s comparison of standardized test scores provided the most meaningful analysis of progress. As discussed above, Franciscan Hospital completed a neuropsychological evaluation of Student in December 2008. Approximately five years earlier, in January 2004, the Massachusetts General Hospital also completed a neuropsychological evaluation of Student. In comparing this testing (and also noting the more recent Lindamood Bell testing on March 30, 2009), Dr. Baker testified that over this five-year period (since the January 2004 testing when Student was in the middle of 6 th grade through the spring of her 11 th grade year), Student had likely made three or four years progress in reading skills. Although standardized test scores only provide an approximation of the age or grade level of Student’s test scores, Dr. Baker estimated that in January 2004 (when Student was in 6 th grade), Student’s reading and spelling were at the 3 rd grade level; and, according to the more recent testing (when Student was in 11 th grade), Student is functioning at the 6 th to 8 th grade level, depending on the particular subtest. Dr. Baker testified that a review and comparison of these test scores indicate that Student started off significantly behind her peers in 6 th grade and has been falling further behind her peers since then. Dr. Baker is well qualified to review the two neuropsychological reports and the more recent Lindamood Bell testing, and render these opinions.31
Student testified that she believes that she made significant progress in reading while attending Cohasset middle school for 6 th , 7 th and 8 th grades. Student’s opinion is supported by unrebutted evidence that Student made substantial reading progress in middle school. Testimony of Berry, Mother. See also part III C, above. Student further testified that over the course of her three years at the Cohasset High School, she has made no progress in reading. More specifically, Student explained that although speech-language services in high school have assisted her with vocabulary, they have not helped her to read for meaning. Testimony of Student.
Student’s testimony was credible but subjective. Nevertheless, this evidence suggests that when one considers the three or four years progress that Student has made between the 2004 neuropsychological testing and the more recent testing in December 2008 and March 2009, it is likely that more of this progress occurred during Student’s middle school years than during her high school years, including 10 th and 11 th grades.
For all of these reasons, I find that Student has made minimal reading progress during 10 th and 11 th grades, and that Student continues to fall further behind her peers. This minimal progress has left Student’s reading skills, including fluency and decoding (areas that have been worked on by Ms. Dugan and that are central to reading progress), at very low levels for her age and grade. Testimony of Baker; exhibit P-28 (page 1 of multidisciplinary summary).
I now consider Student’s educational potential. As discussed above, the law is clear that the amount of progress necessary under state and federal special education law is dependent upon each individual student. More specifically, the Supreme Court, lower federal courts, and Massachusetts regulations describe the need for the IEP to result in Student’s making progress in accord with her educational potential. This is not to say that Cohasset has a responsibility to maximize Student’s educational potential, but rather that a determination of whether Student’s progress is meaningful and effective must be judged within the context of her educational potential. See part IV A, above (footnotes 15, 16, 17 and accompanying text).
It is not disputed that Student has at least average intelligence, as reflected in various testing. In addition, testing demonstrated that apart from her ability to understand written language, Student’s language abilities are in the average (or above average) range. Also, when tested on the basis of visual information not utilizing language, Student tested in the average range or above. Dr. Baker testified persuasively that Student has at least average ability to learn if provided information in a manner that is meaningful to her. The Franciscan neuropsychological report concluded that currently, there is a “significant discrepancy between [Student’s] abilities and current academic performance.” Testimony of Baker; exhibits P-28, S-13 (page 9).
When provided significantly more intensive special education services during 7 th and 8 th grade, Student made significant progress in reading, and she demonstrated the ability to learn and independently utilize reading strategies. Student testified that she believes that she has now forgotten most of these strategies. Student’s current speech-language pathologist (Ms. Dugan) testified that Student can access grade level texts when given sufficient support, which includes someone being with Student to help her utilize reading strategies while she is reading. Testimony of Berry, Dugan, Student.
Student’s educational potential is further enhanced by what Cohasset teachers and staff, as well as Mother, described as Student’s exceptional motivation, determination, and perseverance to learn. Student’s current English teacher (Mr. Fish) described Student as a “model” in this regard. The neuropsychological report, as well as Mother’s testimony, made clear the emotional challenges she has faced, including the negative impact upon her self-esteem, because of her learning disabilities. Student’s own testimony revealed the distress which she has felt over the years as a result of her reading weakness; and, at the same time, Student made clear her high, current motivation for working hard and addressing her reading difficulties. Thus, Student has maintained her motivation and positive attitude towards learning throughout high school while, at the same time, being extraordinarily frustrated with her limited reading ability. Student’s goal, which is realistic, is to attend college after graduation from high school. Testimony of Student, Mother, Baker, Fish, Hogan, Lee; exhibits P-28, S-13.
For these reasons, I find that Student has substantial educational potential, including the potential to make significant progress regarding her reading skills if given appropriate instruction.
The evaluations conducted by the Franciscan Hospital for Children on December 16 and 17, 2008 included neuropsychological, educational, and speech-language evaluations. In addition to their individual written reports, the evaluators met and prepared a written, multidisciplinary summary that was signed by Dr. Baker and the neuropsychological evaluator.32 Dr. Baker presented this summary, as well as the neuropsychological evaluation, through her testimony at the evidentiary hearing. The multidisciplinary Franciscan evaluations are the most comprehensive and detailed review to date of Student’s special education needs and how they should be met. In addition, Dr. Baker has extensive experience and expertise, and she testified candidly, carefully, and credibly.
The central thesis of the Franciscan evaluations and Dr. Baker’s testimony was that (1) Student has a significant Reading Disorder and Dyslexia, (2) these disabilities substantially limit her ability to understand written information, (3) Student has the potential to make substantially greater educational gains in reading than were evidenced from 2004 until December 2008 (the date of the Franciscan testing), and (4) Student requires significantly more intensive and comprehensive special education services in order to make educational gains commensurate with her potential. Dr. Baker’s testimony and the Franciscan evaluations recommended more intensive, comprehensive services because they concluded that, based upon Student’s potential to learn, she should have made significantly more progress than has occurred at Cohasset. The evidence of Student’s reading disability, her reading progress, and her potential to learn, as reviewed in detail above, strongly support these conclusions. Testimony of Baker; exhibits P-28, S-13.
For these reasons, I find that a continuation of the services provided by Cohasset in the past is unlikely to provide Student with an opportunity to make meaningful reading progress commensurate with her educational potential. I further find that with appropriate services, Student has the educational capacity to make meaningful reading progress. Accordingly, I find that Cohasset’s most-recently proposed IEP is inappropriate.
In addition, as discussed above in part IV A (see footnotes 18, 19, 20 and accompanying text), the Massachusetts regulations require that special education services be designed to develop Student’s educational potential.33 It is not disputed by the parties that learning to read is a fundamental component of Student’s public education. As Dr. Baker explained in her testimony, not only is reading, in and of itself, a skill important to everyday life, but reading also, by the 4 th grade, becomes a principal means by which children learn within school and later becomes an essential tool for a student’s education thereafter. Dr. Baker persuasively testified that Student’s current level of reading ability places her at a great disadvantage in gaining new knowledge and furthering her education. Continuation of the same services proposed by Cohasset would likely do little to change this. Testimony of Baker.
For these reasons, I find that developing Student’s educational potential in a meaningful manner requires that she be given the opportunity to learn to read at a significantly higher level than would likely be the case through a continuation of the special education services that have been provided over the past two years. Accordingly, I find that Cohasset’s most-recently proposed IEP is inappropriate.
A further indication of the inappropriateness of the Cohasset’s proposed IEP for 12 th grade is the testimony of the two Cohasset speech-language therapists. As discussed above, the IEP proposes 45 minutes of speech-language therapy, two times per week, which is the amount of speech-language services that has been provided Student since 9 th grade. Ms. Berry, who provided speech-language services to Student in 6 th , 7 th , and 8 th grade and who evaluated Student in 2005 and 2007, and Ms. Dugan who has provided speech-language services to Student since 9 th grade each testified that they would recommend at least doubling the amount of proposed speech-language services for 12 th grade in order to address appropriately Student’s current unmet needs regarding language and reading.34 Testimony of Berry, Hogan; exhibits S-1, P-1, P-22, P-26.
This raises the question of whether additional speech-language services may cure the inappropriateness of Cohasset’s IEP. During her testimony, Dr. Baker directly addressed this aspect of the dispute. She testified persuasively that while important, speech-language services, in-and-of themselves, are not sufficient to address Student’s reading deficit in an effective or meaningful manner. Simply increasing these services is not enough to make the IEP appropriate for Student. Testimony of Baker.
If Student were in the 8 th or 9 th grade, one might argue that a marginal increase in speech-language services could be tried for a period of time to see what effect it might have on Student’s reading progress prior to placing Student in a substantially-separate program, and that a more intensive, comprehensive approach could be used if necessary thereafter. Student is entering her 12 th grade year. It is anticipated that she will graduate from high school in the spring of 2010, thereby terminating her eligibility for special education services. Thus, Student is likely to have only one more academic year to develop her reading skills before entering college. This speaks to the urgency of addressing Student’s reading deficits appropriately as soon as possible. It is also relevant that Cohasset has had many years to evaluate Student and provide special education services to address appropriately Student’s reading disability. It is now simply too late in the day to make minor adjustments in 12 th grade, where those adjustments have little likelihood of significantly impacting Student’s reading skills over the course of a single academic year. Testimony of Baker; exhibits P-28, S-13.
Dr. Baker testified persuasively that Student now requires a substantially more intensive and comprehensive special education that is specifically designed to remediate her reading disability—that is, Student’s educational program should be designed specifically around the need to address this deficit, with special education services incorporated throughout the curriculum. Dr. Baker also testified persuasively that Student’s need for this level of intensive and comprehensive special education services is not satisfied by Cohasset’s current and proposed approach of taking a mainstream high school program and adding speech-language services and academic support in a resource room. Testimony of Baker; exhibits P-28, S-13.
It is not disputed that the type of program recommended by Dr. Baker and the Franciscan evaluations does not exist within the Cohasset School District. Testimony of Hogan, Gill.
For these reasons, I find that Cohasset’s proposed IEP does not appropriately address Student’s reading deficit and cannot be modified to do so. I therefore find that Student requires an out-of-district placement.
Parents have applied for and obtained admission to the Landmark School for the 2009-2010 school year and ask that Cohasset be ordered to place Student at this school. I therefore consider the appropriateness of Landmark for this purpose.
The Landmark witnesses testified that, based on its own testing of Student, its interviewing Student, and its review of Student’s records including previous evaluations, Landmark believes it to be an appropriate placement for Student. The Landmark witnesses testified that Student fits, precisely, the profile of its students—that is, having a language disability that impacts significantly upon reading and writing skills, and having average (or above) intelligence. They explained that Student’s level of language deficits would fall, approximately, in the middle of all students currently enrolled at Landmark and would fall on the low end of students currently in the 12 th grade at Landmark. Testimony of Harty, O’Neil.
If enrolled at Landmark, Student’s Landmark case manager would design for her a 12 th grade program that would include encoding, decoding, vocabulary, fluency, reading comprehension, and written expression. Student’s Landmark program would also include a daily 1:1 language arts tutorial to address her decoding and fluency deficits. In addition, Student would attend a reading fluency class that would be designed to address her needs in this area. All of Student’s content courses (for example, science, social studies, math, and English) would be taught so as to be consistent with and support the study skills approach being used to teach Student reading skills. Language-based instruction would be used throughout her curriculum. Testimony of Harty, O’Neil.
Based upon her personal knowledge of Landmark and her understanding of Student’s educational strengths and weaknesses, Dr. Baker recommended a Landmark School placement as being appropriate for Student. Dr. Baker testified that a Landmark School placement would conform to the recommendations in the Franciscan Hospital evaluations as well as her own testimony as to the kind of program now needed by Student in order to make meaningful educational progress. Testimony of Baker.
I find this evidence to be persuasive that a Landmark School placement for 12 th grade would be reasonably calculated to provide Student with a free appropriate public education within the least restrictive environment.
Finally, I consider Parents’ position that Cohasset should provide services for Student during the summer of 2009. As discussed above in part IV B, eligibility for summer services requires meeting certain legal standards that do not apply to eligibility for academic-year services. Essentially, Parents must demonstrate that Student would likely regress without appropriate summer services or that, for other reasons, summer services are necessary in order for Student to receive FAPE.
In support of their position, Parents have pointed out correctly that Cohasset has found Student eligible for services for previous summers. This fact, without more, is not probative regarding Student’s need for services during the summer of 2009. The Franciscan Hospital education evaluation noted that as a general rule, summer services may be warranted for students with Student’s learning deficits, and the evaluator recommended extended year special education services for Student. However, the Franciscan education evaluator did not testify, Dr. Baker was not familiar with the education evaluation and could not testify regarding it, and the education evaluator’s general, conclusory statement, without more, is not sufficient to establish the need for Student to receive summer services. In addition, the Cohasset witnesses testified that recently there has been no significant regression as a result of Student’s vacations and absences. Testimony of Lee, Hogan; exhibits P-17, P-18, P-28, S-13.
In sum, Parents have failed to carry their burden of persuasion regarding the issue of summer services.
B. Cohasset’s Arguments
Cohasset makes a number of arguments as to why its most-recently proposed IEP is appropriate and why a placement at Landmark would not be appropriate for Student. Prior to making the above findings, I have considered these arguments and found them unpersuasive for the reasons set forth below.
Cohasset emphasizes that Student has been successful at the High School, attaining grades of B and B+, with a class rank falling roughly in the middle of her class of all students (including regular education students). Exhibit S-14. It is not disputed that Student has done well academically at Cohasset High School, and that this is, in part, due to the appropriateness of many of the accommodations on Student’s IEPs, as well as Student’s ability to utilize these accommodations and other compensatory strategies. Grades and other indicia of academic progress may be relevant to a determination of whether an IEP is reasonably calculated to provide sufficient educational progress. However, grades and other indicia of academic progress are not necessarily dispositive.35
The evidence was persuasive that Student’s grades and her general success in school bear little, if any, relation to either her abilities or her progress in her areas of principal weakness being addressed by her IEP—that is reading and writing. It is not disputed that Student is not required to read any books for purpose of her academic work. As is allowed under her IEP, Student obtains her grade-level text books on tape and listens to the material, making it unnecessary for her to read these texts for meaning. In addition, Student’s English teacher (Mr. Fish) explained that in class he reads the difficult portions of assigned books. Accordingly, Student’s high school grades and her academic success are simply irrelevant to her ability to read, as well as her progress in reading. Also, the accommodations that allow Student to listen to all her grade-level text books on tape (rather than read her text books) substantially reduce the amount of Student’s reading opportunities, thereby likely negatively impacting her reading development.36
The evidence was also persuasive that Student’s grades and academic success in school are not likely a true indication of her writing abilities or progress in this area. Near the beginning of Student’s one-semester English class during 11 th grade, she wrote a paper on the book that she had read during the summer. On this paper, she received a grade of D+. On two subsequent papers, Student received grades in the B range. However, Student testified persuasively that during her academic support periods in the resource room, Student’s special education aide prompted Student with specific language to be used in these latter papers, with the result that the papers reflected the suggestions of the aide and did not reflect Student’s own writing. The English teacher attempted to rebut this testimony by testifying that he did not believe that the aide would provide this much assistance and, if this much assistance had been provided, Student would have received an even higher grade. However, the English teacher had not spoken to the aide about this issue, and his testimony was speculative; in contrast, Student’s testimony was credible and persuasive. In addition, Student’s testimony regarding one of the writing assignments was substantiated by the actual written page (submitted into evidence) that was provided by the aide to be used by Student as part of her writing assignment. Testimony of Student, Fish; exhibit P-14.
As Cohasset has correctly pointed out, Student’s grades and academic success indicate that Student is successfully accessing the 11 th grade curriculum. Through the many accommodations on her IEP (most importantly regarding reading), Student’s special educational deficits are, essentially, by-passed so that she has the opportunity to learn content material and to express her understanding of this material without the need to read and without having to develop her own writing abilities. The state and federal special education laws note the importance of providing special education and related services sufficient to allow a student to access the curriculum. However, this does not complete Cohasset’s responsibilities where, in the present dispute, Student has substantial, long-standing special education deficits. State and federal law requires that services be provided for purpose of their remediation. See part IV A, above (see footnotes 13, 14, 15 and accompanying text).
Cohasset’s second principal argument was directed at the Franciscan Hospital multidisciplinary evaluations. Cohasset pointed out, and the evidence supports its position, that the speech-language portion of the Franciscan evaluation found that Student should continue to receive the speech-language services that were being provided by Cohasset and that would continue to be provided by Cohasset under its proposed IEP, and the evaluation further recommended accommodations that Cohasset has been and will continue to provide Student. Cohasset argues from this that the Franciscan evaluations support its proposed IEP, as written, rather than the out-of-district placement sought by Parents. Exhibits P-28, S-12.
I do not find this argument to be persuasive. The Franciscan speech-language evaluation was one part of a multidisciplinary evaluation. The fact that this part of the evaluation supported Cohasset’s then current and now proposed speech-language services does not, by itself, indicate that the IEP, as a whole, is appropriate. It is telling that the Franciscan evaluations include a multidisciplinary summary that reflects a Franciscan team meeting of its evaluators and provides the combined recommendations of the three evaluations (neuropsychological, educational, and speech-language). This summary recommends that Student continue to receive her then current speech-language services and, at the same time, it recommends that Student be placed in the specialized educational program described more fully within the neuropsychological and educational assessments. From this perspective, the Franciscan speech-language evaluation is consistent with the conclusion that Cohasset’s proposed IEP is not appropriate as a whole. It is also noteworthy that the Franciscan team, as reflected within its multidisciplinary summary, concluded that appropriate speech-language services are not sufficient to address Student’s special education needs regarding reading, and that additional, specialized services are required in order for Student to make an acceptable level of progress in this area. Dr. Baker testified that the multidisciplinary summary reflected a consensus among the evaluators, including the speech-language evaluator. Testimony of Baker; exhibit P-28.
Cohasset also seeks to discredit the Franciscan educational evaluation, taking the position that the test instruments used were not the best suited for this purpose and that there were insufficient subtests utilized. Cohasset also criticized the Franciscan education evaluator for apparently not speaking with Cohasset staff to gain greater understanding of Cohasset’s current and proposed educational program for Student. Exhibits P-28, S-11.
The Franciscan educational evaluator did not testify and, for this reason, it is difficult to reach any conclusions as to why she chose certain test instruments and whether she utilized sufficient subtests. I decline to find that the educational evaluation is deficient on this basis.
In her testimony, Dr. Baker agreed that it would have been useful for the Franciscan evaluator to speak with Cohasset staff. I concur with Dr. Baker, but I do not find this to be of sufficient concern to discredit the educational evaluation.
As is clear from the face of the education evaluation report, the Franciscan education evaluator understood the basic content and structure of Cohasset’s then current and proposed services for Student. On the basis of the information available to her (which included the results of previous testing, together with the evaluator’s own standardized testing), the education evaluator could determine whether the level and intensity of Cohasset’s services was providing Student with sufficient opportunity to gain needed reading skills, and whether additional services were warranted. The education evaluator was warranted in reaching conclusions on this basis. Of course, her conclusions would likely carry greater weight if she had talked directly with the Cohasset educators.
Finally, Cohasset argued against the appropriateness of Landmark School. Cohasset correctly described the academic program in which Student would participate at Landmark as a study skills program that has less emphasis (than Cohasset High School) on providing a content-driven curriculum. Cohasset also correctly pointed out the various advantages of Student’s attending a fully-mainstreamed high school program, including learning alongside typical peers, being challenged by a content-driven, college-preparatory program of study that develops a student’s critical learning skills, engaging in high school sports and other extracurricular activities, and continuing to go to school with high school peers and teachers with whom she has learned over the past three years. In addition, as discussed in part IV A, above (see footnote 5 and accompanying text), the law establishes a requirement of placement within the least restrictive educational environment (LRE) that can appropriately meet Student’s needs.
The essential weakness with Cohasset’s argument is that the less restrictive environment (which is Cohasset High School) must also be able to address Student’s special education needs appropriately.37 For the reasons explained earlier within this Decision, I have found that placement within the 12 th grade at Cohasset High School is not likely to result in meaningful and effective progress commensurate with her educational potential regarding reading skills, which is the area of Student’s principal learning weakness.
Cohasset also sought to attack the appropriateness of Landmark as a special education placement for purposes of addressing Student’s language needs. Cohasset correctly pointed out that the Landmark witnesses could not identify the particular reading program that would be utilized with Student if she should attend 12 th grade there, and that the Landmark witnesses did not address the question of whether speech-language services would be offered at Landmark. It is apparent that it would have been helpful to have the answers to these questions, but this lack of information is not significant. First, there is a good reason why the Landmark witnesses did not know which reading program would be used for Student—which is that the particular reading program will be selected at a later point in time for Student. Second, nothing more than speculation may be inferred from the Landmark witnesses not being asked about, and therefore not responding regarding, speech-language services for Student. It is not disputed that speech-language services could be added (by Cohasset if necessary) to supplement Landmark’s program if such services are needed and are not otherwise provided by Landmark.
I conclude that the IEP most recently proposed by Cohasset is not reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment because it is not likely to provide Student with sufficient opportunity to make progress in reading skills commensurate with her educational potential and because the IEP is not likely to develop sufficiently her educational potential.
I conclude that modification of the IEP for the purpose of keeping Student in an educational placement within the Cohasset School District would not address Cohasset’s responsibility to provide Student with FAPE. The IEP modifications that could be implemented by Cohasset and that were recommended by several Cohasset witnesses (that is, additional speech-language services) would not result in the kind of intense, comprehensive, language-based program required at this point in time for Student to make meaningful and effective progress. Cohasset does not have the kind of educational program within its School District that is now required by Student.
Accordingly, I conclude that Student requires an out-of-district program. I further conclude that the educational program at Landmark School has been specifically designed to address the educational needs of children with Student’s particular special education profile and is an appropriate placement for Student for 12 th grade.
Finally, I conclude that Parents have not met their burden of persuasion to establish that Student is entitled to services during the summer of 2009.
The IEP most recently proposed by Cohasset (for the period 3/5/09 to 3/5/10) is not reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment. Additions or other modifications to the IEP are not sufficient to satisfy this standard. Placement at the Landmark School would satisfy this standard. The IEP shall be amended to reflect a Landmark School placement to commence at the beginning of the 2009-2010 school year.
Cohasset shall immediately take all steps necessary for Student to be placed at the Landmark School, commencing at the beginning of the 2009-2010 school year.
Student is not entitled to receive (and therefore Cohasset is not responsible for providing Student with) special education or related services during the summer of 2009.
By the Hearing Officer,
Dated: June 30, 2009
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Cohasset Public Schools BSEA # 09-4922
In order to apprise the parties in a timely manner of my findings and orders in this case, this Order is issued in advance of a full Decision. The full Decision will be issued no later than 25 days after the close of the record, which occurred on June 9, 2009.
This Order is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL c. 71B), the state Administrative Procedure Act (MGL c. 30A), and the regulations promulgated under these statutes.
A hearing was held on June 3, 4, and 8, 2007 in Malden, MA before William Crane, Hearing Officer. The official record of the hearing consists of documents submitted by the Parents and marked as exhibits P-1 through P-32; documents submitted by the Cohasset Public Schools (Cohasset) and marked as exhibits S-1 through S-17; and approximately two and one-half days of recorded oral testimony and argument. As agreed by the parties, oral closing arguments were made on June 9, 2009, and the record closed on that date.
I have now had an opportunity to review and consider the entire evidentiary record, as well as the arguments of both parties. On the basis of this careful review, I make the following findings and orders.
I find that the individualized education program (IEP) most recently proposed by Cohasset (for the period 3/5/09 to 3/5/10) is not reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment. I find that additions or other modifications to the IEP are not sufficient to satisfy this standard. I find that placement at the Landmark School would satisfy this standard. I also find that Student is not entitled to receive (and therefore Cohasset is not responsible for providing Student with) special education or related services during the summer of 2009.
Accordingly, Cohasset shall amend the most recently-proposed IEP to reflect a Landmark School placement to commence at the beginning of the 2009-2010 school year. Cohasset shall immediately take all steps necessary for Student to be placed at the Landmark School, commencing at the beginning of the 2009-2010 school year.
By the Hearing Officer,
Dated: June 12, 2009
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
THE BUREAU’S DECISION, INCLUDING RIGHTS OF APPEAL
Effect of the Decision
20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must obtain such stay from the court having jurisdiction over the party’s appeal.
Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).
A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).
Rights of Appeal
Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).
An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).
In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
Record of the Hearing
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.
On June 3, 2009, Ms. O’Neil and Ms. Harty testified by telephone. The June 8, 2009 portion of the hearing was conducted by telephone for the purpose of taking the testimony of a single witness, Ms. Dugan.
20 USC 1400 et seq .
MGL c. 71B.
20 USC 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A).
The phrase “least restrictive environment” means that, to the maximum extent appropriate for the particular student, the educational services are to be provided with other students who do not have a disability. 20 USC 1400(d)(1)(A); 20 USC 1412(a)(1)(A); 20 USC 1412(a)(5)(A); MGL c. 71B, ss. 2, 3; 34 CFR 300.114(a)(2(i) ; 603 CMR 28.06(2)(c).
20 USC 1401(9)(b); Winkelman v. Parma City School Dist., 127 S.Ct. 1994, 2000-2001 (2007) (“education must … meet the standards of the State educational agency); Mr. I. v. Maine School Administrative District No. 55, 480 F.3d 1 , 11 (1 st Cir. 2007) (state may “ calibrate its own educational standards, provided it does not set them below the minimum level prescribed by the [IDEA]”); Town of Burlington v. Department of Education , 736 F.2d 773, 792 (1 st Cir. 1984) (states are “free to exceed, both substantively and procedurally, the protection and services to be provided to its disabled children”). See also Philip T.K. Daniel & Jill Meinhardt, Valuing the Education of Students with Disabilities: Has Government Legislation Caused a Reinterpretation of a Free Appropriate Public Education?, 222 Educ. L. Rep. 515 (2007) ( language of the 2004 Reauthorization of the IDEA as well as the implementing Regulations “likely implies that FAPE now requires more than mere access to a basic floor of opportunity and should be aligned with the high expectations in state educational standards”).
MGL s. 71B, s.1 (definition of FAPE that describes Massachusetts educational standards as those “ established by statute or established by regulations promulgated by the board of education”).
MGL c. 71B, ss. 1, 2, 3.
Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 201 & n.23 (1982).
Rowley, 458 U.S. at 192 (“intent of the Act was more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside”) .
Rowley, 458 U.S. at 192 (“in seeking to provide such access to public education, Congress did not impose upon the States any greater substantive educational standard than would be necessary to make such access meaningful”); Houston Independent School Dist. v. VP , 2009 WL 1080639 (5 th Cir. 2009) (after reviewing Rowley standard, concluding that IEP must be reasonably calculated to provide “meaningful educational benefit”, and setting out four factors that serve as indicators of whether this standard of meaningful benefit is met); Lauren P. v. Wissahickon School Dist. , 2009 WL 382529 (3 rd Cir. 2009)(IEP must confer “significant learning” and “meaningful benefit” on student); N.B. v. Hellgate Elementary School Dist ., 541 F.3d 1202, 1212-13 (9 th Cir. 2008) (under 1997 amendments to the IDEA, a school must provide a student with a “meaningful benefit”); Frank G. v. Board of Educ. of Hyde Park, 459 F.3d 356, 364 (2 nd Cir. 2006) (IDEA requires a student to be provided with “meaningful access” to education); A.B. ex rel. D.B. v. Lawson , 354 F.3d 315, 319 (4 th Cir. 2004) (“state must provide children with ‘meaningful access’ to public education”); Alex R.. v. Forrestville Valley Community Unit School Dist. # 221, 375 F.3d 603, 612 (7 th Cir. 2004) (question presented is whether the school district appropriately addressed the student’s needs and provided him with a meaningful educational benefit), cert. denied , 543 U.S. 1009 (2004); Deal v. Hamilton County Board of Education, 392 F.3d 840 (6 th Cir. 2004); Shore Regional High School Bd. of Educ. v. P.S. , 381 F.3d 194, 198 (3d Cir. 2004); L.E. v. Ramsey Bd. of Educ ., 435 F.3d 384, 395 (3d Cir. 2006), citing T.R. ex rel. N.R. v. Kingwood Twp. Bd. of Educ ., 205 F.3d 572, 577 (3d Cir. 2000) (phrase “some educational benefit”, as utilized by Supreme Court in Rowley , requires provision of a “meaningful educational benefit”); Adams v. Oregon , 195 F.3d 1141, 1145 (9 th Cir. 1999); Town of Burlington v. Dep’t of Educ ., 736 F.2d 773, 789 (1st Cir. 1984) (“federal basic floor of meaningful, beneficial educational opportunity”), aff’d 471 U.S. 359 (1985).
Rowley , 458 U.S. at 197, n.21 (1982) (“ Whatever Congress meant by an “appropriate” education, it is clear that it did not mean a potential-maximizing education.”); Lt. T.B. ex rel. N.B. v. Warwick Sch. Com., 361 F.3d 80, 83 (1st Cir. 2004) (“IDEA does not require a public school to provide what is best for a special needs child, only that it provide an IEP that is ‘reasonably calculated’ to provide an ‘appropriate’ education as defined in federal and state law.”).
20 USC 1400(d)(4) (purposes of this title are . . . to assess, and ensure the effectiveness of , efforts to educate children with disabilities” (emphasis added).
See, e.g., North Reading School Committee v. Bureau of Special Education Appeals, 480 F.Supp.2d 479, 489 (D.Mass. 2007) (educational program “must be reasonably calculated to provide effective results and demonstrable improvement in the various educational and personal skills identified as special needs ”), quoting Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1090 (1 st Cir. 1993) and Town of Burlington v. Dep’t of Educ., 736 F.2d 773, 788 (1 st Cir. 1984), aff’d 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985).
603 CMR 28.05(4)(b) (Student’s IEP must be “designed to enable the student to progress effectively in the content areas of the general curriculum”); 603 CMR 28.02(18) (“ Progress effectively in the general education program shall mean to make documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to chronological age and developmental expectations, the individual educational potential of the child, and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district.”).
Rowley , 458 U.S. at 202.
E.g., Lessard v. Wilton Lyndeborough Cooperative School Dist. , 2008 WL 484042 (1 st Cir. 2008) (“levels of progress must be judged with respect to the potential of the particular child. So here: while the reported progress is modest by most standards, it is reasonable in the context of Stephanie’s manifold disabilities and low IQ”); Beth R. v. Forrestville Valley Comm. Unit Sch. Dist. No. 221, 375 F.3d 603, 615 (7 th Cir. 2004) (“ requisite degree of reasonable, likely progress varies, depending on the student’s abilities” ), cert. denied , 125 S. Ct. 628 (2004); Shore Regional High School Bd. of Educ. v. P.S. , 381 F.3d 194, 198 (3d Cir. 2004) (“IEP must be reasonably calculated to enable the child to receive meaningful educational benefits in light of the student’s intellectual potential”) (Alito, J.); Deal v. Hamilton County Board of Education, 392 F.3d 840 (6 th Cir. 2004) (“IDEA requires an IEP to confer a ‘meaningful educational benefit’ gauged in relation to the potential of the child at issue”); Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) (progress should be measured with respect to the individual student, not with respect to others); Mrs. B. v. Milford Board of Ed. , 103 F.3d 1114, 1122 (2d Cir. 1997) (“child’s academic progress must be viewed in light of the limitations imposed by the child’s disability”) .
603 CMR 28.01(3).
MGL c. 71B, s. 1.
MGL c. 69, s. 1. See also Mass. Department of Education’s Administrative Advisory SPED 2002-1: Guidance on the change in special education standard of service from “maximum possible development” to “free appropriate public education” (“FAPE”), Effective January 1, 2002 , 7 MSER Quarterly Reports 1 (2001) (appearing at www.doe.mass.edu/sped) (Massachusetts Education Reform Act “underscores the Commonwealth’s commitment to assist all students to reach their full educational potential”).
20 USC 1414(d)(1)(A)(i)(I)-(III); Honig v. Doe, 484 U.S. 305, 311-12 (1988) ; Rowley , 458 U.S. at 182.
20 USC 1400(d)(1)(A) (IDEA enacted “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living”); 20 USC 1401(9), (29) ( “free appropriate public education” encompasses “special education and related services,” including “specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability”); Honig v. DOE , 484 U.S. 305, 311 (1988) (FAPE must be tailored “to each child’s unique needs”); Lessard v. Wilton Lyndeborough Cooperative School Dist. , 2008 WL 484042 (1 st Cir. 2008) (noting the school district’s “ obligation to devise a custom-tailored IEP”); Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1086 (1 st Cir.1993) ( FAPE requires that IEP be “custom tailored to address the handicapped child’s unique needs in a way reasonably calculated to enable the child to receive educational benefits”) (internal quotations and citations omitted).
Rowley , 458 U.S. at 207.
Schaffer v. Weast , 546 U.S. 49, 62 (2005) (burden of persuasion in an administrative hearing challenging an IEP is placed upon the party seeking relief).
603 CMR 28.05(4)(d)1.
34 CFR 300.106.
E.g., Cordrey v. Euckert, 917 F.2d 1460, 1474 (6th Cir. 1990). Although the federal FAPE standard may, arguably, be broader than the Massachusetts regression standard, the commentary to the 2006 federal regulations appears to take the position that states may properly use regression as their criteria for eligibility for extended year services. Federal Register, vol. 71, no. 156, August 14, 2006, page 46582, 3 rd column.
Kenton County School District, v. Hunt , 384 F.3d 269, (6 th Cir. 2004); MM by DM and EM v. School Dist. of Grenville County , 37 IDELR 183 (4 th Cir. 2002); Johnson v. Indep. Sch. Dist. No. 4, 921 F.2d 1022, 1028 (10th Cir. 1990); Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ. , 790 F.2d 1153, 1158 (5th Cir. 1986).
Cohasset agreed (through its closing argument) that Student’s disabilities manifest themselves most notably in reading and writing. Parents have also focused their advocacy on Student’s reading and writing.
Other teachers/therapists who have worked with Student testified as to her progress, but these witnesses either had not worked with Student recently (Ms. Berry) or based their opinions of progress on Student’s work that was unrelated to her ability to read and write (Mr. Fish and Ms. Lee). See a further discussion of this in part V B, below.
The Cohasset witnesses who testified regarding Student’s standardized testing scores (Ms. Gill, Dr. Blidner) took the position that, as a general rule, Student’s standardized scores were essentially the same over time—that is, Student’s abilities vis-à-vis the testing subgroup with whom she was being compared, were staying the same. This would indicate that for each year of school, Student made essentially one year of progress. However, Ms. Gill and Dr. Blidner did not identify the particular test scores that were being compared—for example, Dr. Blidner considered his 2007 psychological evaluation and the two neuropsychological evaluations, but Dr. Blidner’s evaluation did not included testing relevant to reading skills that can be compared with testing within the two neuropsychological evaluations. Thus, it seemed possible that these witnesses were comparing Student’s subtest scores pertaining to language progress generally, as compared to tests pertaining only to reading skill development. Student’s language abilities outside of reading are generally average, and she has been making good progress in the language skills that do not include reading. It was also unclear whether these witnesses took into consideration the most recent testing in March 2009 by Lindamood Bell. Dr. Blidner appeared to compare only the 2004 neuropsychological evaluation, his own psychological evaluation in 2007, and the 2008 Franciscan neuropsychological evaluation. It was unclear which particular evaluations Ms. Gill was comparing. Testimony of Gill, Blidner. For these reasons and because of Dr. Baker’s greater expertise, I found Dr. Baker’s comparison of standardized test scores to be more persuasive than Dr. Blidner’s and Ms. Gill’s comparison.
Dr. Baker testified that although she did not conduct the neuropsychological evaluation, she discussed it with Ms. DelRey who performed the evaluation, she reviewed all of the documents relied upon by Ms. DelRey, she made corrections to the written neuropsychological report, and she signed this report.
Also, as discussed above in part IV A (see footnote 4 and accompanying text), the IDEA emphasizes the importance of designing special education and related services to meet Student’s unique needs so as to prepare her for further education and employment.
Ms. Berry recommended speech-language services five times per week for 12 th grade; Ms. Dugan recommended that it be provided four times per week. Ms. Dugan testified that her recommendation for a higher level of services was based, in part, on the Franciscan evaluation reports of Student’s learning weaknesses.
See, e.g., Rowley, 458 U.S. at 203, n. 25 and 207, n.28 (“We do not hold today that every handicapped child who is advancing from grade to grade in a regular public school system is automatically receiving a ‘free appropriate public education.’ In this case, however, we find Amy’s academic progress, when considered with the special services and professional consideration accorded by the Furnace Woods school administrators, to be dispositive…. When the handicapped child is being educated in the regular classrooms of a public school system, the achievement of passing marks and advancement from grade to grade will be one important factor in determining educational benefit”); M.S. ex rel. Simchick v. Fairfax County School Bd . , 553 F.3d 315, 327 ( 4 th Cir. 2009) ( “progress, or the lack thereof, while important, is not dispositive”); M.S. ex rel. S.S. v. Board of Educ. of the City School Dist. of the City of Yonkers , 231 F.3d 96, 104 (2 nd Cir. 2000) (“ Once it is conceded that the IEP is materially incomplete in identifying the learning deficits acknowledged to exist, and the IEP has been found ineffective by the [State Review Officer] as a tool for setting baselines and measuring progress, the School Board cannot rely on the passing grades it has given and the promotional decision it has made to argue that the remedial measures in the IEP are, as a matter of law, reasonably calculated to deliver educational benefits”); In Re Conklin, 946 F.2d 306, 315-16 (4th Cir. 1991) (interpreting Rowley to mean that while grade-to-grade advancement and passing marks can be an appropriate gauge of whether a child receives a free appropriate education, they do not automatically resolve the inquiry and courts should not accord these factors dispositive significance); West Chester Area Sch. Dist. v. Bruce and Suzanne C , 194 F. Supp. 2d 417 (E.D.Pa. 2002) (was error to focus on student’s grades while disregarding his potential).
For example, in her closing arguments, Cohasset’s attorney chose to illustrate Student’s excellent academic work by how well Student had done on a pictorial project in English class involving the book, Siddhartha. In his testimony, Student’s English teacher commended Student’s understanding of this book. However, there was no indication that Student actually read this book (as compared to listening to it on tape), and the report submitted by Student on this book was pictorial, rather than a written report. It is not disputed that Student is intelligent and hard working, and she likely understood the concepts central to this book and demonstrated this understanding through the poster that she prepared; but this academic success is essentially irrelevant to her two principal special education needs, which are reading and writing.
Burlington v. Mass. Department of Education , 471 US 359, 369 (1985) ( least restrictive principles may not result in a placement that does not meet the education needs of the student ).