COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Hanover Public Schools
BSEA # 05-0108
DECISION
This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL ch. 71B), the state Administrative Procedure Act (MGL ch. 30A) and the regulations promulgated under these statutes.
A hearing was held on February 15, 2005 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:
Student’s Father
Leah Wohlander Speech-language Pathologist, HealthSouth
Eugene Reiber Teacher, Hanover Public Schools
Suzanne Moffitt Speech-language Pathologist, Hanover Public Schools
Susan Daly School Adjustment Counselor, Hanover Public Schools
Elsa Abele Speech-language Pathologist, Private Practice
James Shillinglaw Director of Special Education, Hanover Public Schools
Robert Kraus Attorney for Parents and Student
Nancy Nevils Attorney for Hanover Public Schools
The official record of the hearing consists of documents submitted by the Parents and marked as exhibits P-1 through P-4; documents submitted by the Hanover Public Schools (Hanover) and marked as exhibits S-1 through S-31; and approximately five hours of recorded oral testimony and argument. (Parents incorporated by reference Hanover’s exhibits S-1 through S-8, and S-10 through S-29.) Closing arguments were made orally on February 17, 2005, and the record closed on that date.
ISSUE
The issue to be decided in this case is whether Student is eligible to receive special education and/or related services; and, if so, what special education and/or related services Student is entitled to receive.
PROFILE, HISTORY AND IEP
Student is a nine-year-old boy (date of birth 7/29/95) who lives with his parents (Parents) in the town of Hanover, MA. Student currently attends a 4 th grade, regular education classroom in the Hanover Public Schools. He is an intellectually bright student who is doing well academically in school. Testimony of Parent, Reiber; exhibits S-19, S-29.
Student has a disability of a speech articulation impairment. The impairment causes Student occasionally (approximately 10 to 15% of the time) to pronounce the “s” or “z” sound as though it were an “f” or “th” sound. Student’s speech is 100 % intelligible, even when he mispronounces the “s” or “z” sound. Testimony of Wohlander, Abele; exhibits S-9, S-20, S-24, S-28, S-30, S-31.
Student has been receiving speech-language services to address his articulation impairment since kindergarten. Student’s most recent IEP, which is accepted by Parents, calls for direct speech-language services for thirty minutes, two times each week, and consultation services regarding speech for fifteen minutes, once each week. The IEP does not provide for any other special education or related services. Testimony of Parent, exhibit S-8.
After conducting a speech-language assessment of Student in November and December 2003, Hanover determined on April 14, 2004 that Student was no longer eligible to receive speech-language services. Exhibits S-9, S-14.
Parents sought and obtained an independent speech-language evaluation on May 18, 2004, which recommended that Student continue to receive speech-language services. After considering this evaluation, Hanover confirmed its earlier determination that Student was no longer eligible to receive services, and so informed Parents by a notice dated June 11, 2004. Exhibits S-20, S-23.
Parents then appealed from this finding of no eligibility by filing their Hearing Request with the BSEA. This case was re-assigned to the present Hearing Officer on February 10, 2005.
FACTS
1. Student’s father (Parent) testified that he has lived in the town of Hanover for the past three years and currently is employed as a 7 th grade science teacher in another town. He explained that he first noticed his son’s speech difficulties at age three, and over the next two years, his son’s speech became more impaired. He noted that Student then began to receive speech-language services in 1999, and these services have continued through the present.
2. Parent testified that his son is sensitive and internalizes difficulties. He explained that because of his speech impairment (or lisp), Student is teased by his peers on the bus, on the playground and during the weekends. He explained that the teasing has included the use of derogatory names such as “retard”. Parent noted that he has a close relationship with his son, who has told him about the teasing.
3. Parent testified that when Student is teased, it impacts him regarding everything that he does, including his ability to achieve in school. Parent believes that although Student’s grades are “OK”, they are “not where they should be”. Parent also noted that, in general, the current school year (4 th grade) has gone better than last year (3 rd grade), and Parent has not complained to anyone at his son’s school this year about the teasing.
4. Parent testified that although he has attended a number of parent-teacher conferences this school year and has communicated with Mr. Reiber (Student’s 4 th grade teacher) on other occasions, he has not observed his son at school.
5. Leah Wohlander testified, and her resume reflects, that she has been licensed as a speech-language pathologist since 2001. She received her Master of Arts degree in speech-language pathology in 2001, was employed as a speech-language pathologist by the Taunton Public Schools from August 2001 to June 2002, and has been employed since July 2002 as a speech-language pathologist at the HealthSouth Braintree Pediatric Center, where she evaluates children to determine their need for speech-language services and provides services to children ages one to fourteen years. Exhibit P-2.
6. Ms. Wohlander testified (and her evaluation report reflects) that she evaluated Student on May 18, 2004 for ninety minutes with respect to his speech-language skills. She noted that she did not talk to anyone at Hanover, did not review any part of Student’s school records (including his previous speech-language evaluation) and has not seen Student since her evaluation of him in May 2004. Her only source of information, other than the evaluation itself, was Parent who provided Ms. Wohlander with Student’s history. She noted that Parent told her that Student was teased by his peers as a result of his impaired articulation. Exhibit S-20.
7. Ms. Wohlander testified (and her evaluation report reflects) that she administered to Student the Test of Language Development-Primary Second Edition. Through this testing, Ms. Wohlander determined that Student’s receptive, expressive and pragmatic language skills were all within average to above average limits for his age, and that he has no limitation, impairment or delay in these areas. Exhibit S-20.
8. Ms. Wohlander testified (and her report reflects) that she informally evaluated Student’s articulation skills and found that he presented with a frontal lisp resulting in impaired articulation of the “s” and “z” sounds in all word positions. She explained that when Student seeks to pronounce these letters, he produces an “f” or “th” sound. Ms. Wohlander testified that she had no difficulty understanding Student’s speech, “given the context”. Exhibit S-20.
9. Ms. Wohlander testified (and her evaluation report reflects) that because Student’s lisp is distracting to the listener and because it is treatable, she recommended speech-language services for thirty to forty-five minutes, twice each week. She explained that the therapy would focus on achieving posterior lingual placement to promote accurate production of the “s” and “z” sounds and to extinguish the distortion produced by the lisp. Exhibit S-20.
10. Ms. Wohlander testified that she has no opinion regarding the impact, if any, of Student’s articulation impairment upon his educational progress or upon his ability to access the school curriculum.
11. Eugene Reiber testified that currently and for the past eight years, he has been employed by Hanover as a 4 th grade teacher. He noted that he holds a Masters degree in early education. Mr. Reiber explained that Student is one of twenty-two students in his 4 th grade classroom this school year (2004-2005).
12. Mr. Reiber testified that Student volunteers to speak in class – for example, asking Mr. Reiber for clarification, presenting a poem to the class, offering information or answers to the class, presenting book reports once each month, and occasionally leading the morning meeting. Mr. Reiber explained that with respect to volunteering to speak in class, Student is within the upper third of students within the class. He further noted that when Student speaks in class informally (for example, to ask a question), Student does not appear hesitant; and when he speaks more formally (for example, making a prepared presentation to the class), he appears confident and well prepared. Mr. Reiber testified that in December 2004, Student was in a classroom play, performing as well or better than his classroom peers; Mr. Reiber was able to hear and understand what Student said.
13. Mr. Reiber testified that he has always understood the words that Student is saying and has never had to ask Student to repeat himself. He noted that Student’s peers appear also to understand Student; Mr. Reiber has never observed another child asking Student for clarification of what he said. Mr. Reiber explained that when he focuses on Student’s lisp, he is aware of it; at other times, Mr. Reiber does not notice that Student has an articulation impairment.
14. Mr. Reiber testified that he has responsibility to monitor recess and also observes students during lunch. He explained that in his classroom, during recess and during lunch, he has not observed any teasing of Student, and no one has reported to him that Student has been or is being teased during this school year. Mr. Reiber added that he has noticed that Student appears to have friends and interacts with other students in a typical way.
15. Mr. Reiber testified that, to his knowledge, Student’s articulation impairment does not impact, in any way, his ability to participate in the curriculum, nor does the impairment affect his educational progress.
16. Elisa Abele testified that she received her Masters degree in communication disorders in 1980, she is currently licensed as a speech-language pathologist and is certified as a teacher. She explained that for ten years, she was a clinical assistant professor at Boston University, teaching in the area of speech-language, and retiring in 2001; she was a speech-language pathologist for the Burlington Public Schools for seventeen years; and currently she is in private practice, providing consultation and training to Hanover and other school districts, as well as to parents.
17. Ms. Abele testified that she reviewed all of Hanover’s exhibits in this dispute, spoke with Mr. Reiber and Ms. Moffitt (Hanover’s speech-language pathologist), and on February 14, 2005, she observed Student for one and one-half hours in his 4 th grade classroom and observed him at recess. Ms. Abele reported that while she observed Student in his classroom, he clarified something with Mr. Reiber, he answered several questions during a spelling pre-test, and he asked a clarifying question in front of the whole class.
18. Ms. Abele testified that during her observation of Student in the classroom, his speech intelligibility was 100% (that is, she understood all of his speech), Student spoke twenty-one words containing the “s” or “z” sound, and out of these twenty-one words, he articulated eighteen of them correctly and three incorrectly. She explained that with respect to these three words pronounced incorrectly, he distorted the “s” or “z” sound into an “f” or “th” sound. She described Student’s difficulties as a “mild” speech impairment.
19. Ms. Abele testified, that based on her observation, Student communicates effectively with adults and peers. She found no indication that adults or peers have any difficulty understanding Student.
20. Ms. Abele testified that, in her opinion, Student knows when to pronounce the “s” or “z” sound, he knows how to pronounce these sounds correctly, but occasionally he is not able to obtain the correct pronunciation, indicating that correct pronunciation of these sounds is not automatic or fully generalized.
21. Ms. Abele testified that it is likely that even without further speech-language services, Student will continue to improve his articulation and master the correct pronunciation of these letters. On the basis of her observation and review of records, Ms. Abele opined that Student articulates well within the average range. She recommended that speech-language services not be continued for Student.
22. Ms. Abele testified that, in her opinion, Student is participating fully in his education and is part of the classroom in the same way as the other students in his 4 th grade class.
23. A speech-language evaluation was performed on 11/19/03-12/15/03 by Kathleen McLaughlin, Hanover Speech-language Pathologist, for the purpose of evaluating Student’s speech-language abilities. In her evaluation report, Ms. McLaughlin concluded that, overall, Student’s receptive, expressive and total language skills were very evenly developed and were indicative of high average abilities. No weaknesses or impairments were found in these areas. Exhibit S-9.
24. Ms. McLaughlin’s speech-language evaluation also included the Goldman-Fristoe Test of Articulation. During this Test, Student produced two words containing “very slight distortions” of the “s” sound, while seven other words containing this sound were correctly pronounced. Ms. McLaughlin concluded that at no time did this articulation distortion contribute to any difficulty with intelligibility. Student’s score on this test placed him at the 56 th percentile, which is in the average range.
25. Ms. McLaughlin’s assessment further explained that informal data suggests that Student is “extremely successful” in producing distortion-free “s” sounds during “targeted opportunities”; and during less structured opportunities, he produces the “s” sound with at least 65% accuracy. Exhibit S-9.
26. Ms. Abele testified that the Goldman-Fristoe Test of Articulation is a reliable measure of articulation abilities, and that Student’s score of 56 th percentile on this Test placed him slightly past the mid-point on the bell curve for typically developing students or, stated in another way, Student scored better than 56% of other children who are typically developing.
27. Progress reports prepared by Kathleen McLaughlin indicate that as of 11/25/03 Student’s accuracy level with the “s” sound “in the final word position” reached 80%. Exhibit S-30. Ms. McLaughlin’s progress report of 3/15/04 indicated further progress, with Student producing the “s” sound in all word positions with at least 90% accuracy. The progress report states that Student’s production of the “s” sound does not impact his intelligibility at the conversational level in the classroom. Exhibit S-31. Ms. McLaughlin’s progress report of 6/13/04 indicated that at the conversational level, Student’s accuracy levels in the initial, medial and final word positions met or exceeded 85%. Exhibit S-24.
28. A progress report prepared by Suzanne Moffitt, Hanover Speech-language Pathologist, dated 12/02/04, made the following findings:
At the beginning of the year, an initial intelligibilty baseline indicated that [Student] consistently used minor distortions with both /s/ and /z/ in all positions of words. His intelligibility with familiar and unfamiliar listeners was very good (i.e., his message was 100% understood). Currently, his intelligibility remains very good. He has made considerable progress in that he is now able to produce clear /s/ and /z/ in all positions of words and sentences with approximately 80% accuracy in the structured setting without placement cues given. [Student] is also beginning to self-correct within the structured setting.
Exhibit S-28.
29. Student’s academic progress report for 3 rd grade (2003-2004 school year) reflects grades in the “M” range (“M” indicates that a student “meets the standards”) in all subject areas for all three terms. Exhibit S-25, P-2. His academic progress report for 4 th grade (2004-2005 school year) reflects grades in the “A” and “B” range for all subjects for the first term. Exhibit S-29.
30. A psychological evaluation was conducted by Hanover psychologist Lionel Lyon, Psy.D., on 5/12/04, 5/19/04 and 6/03/04. Dr. Lyon administered the Wechsler Intelligence Scale for Children-4 th Edition to assess Student’s cognitive and intellectual abilities. Student received a full-scale IQ score of 123, placing him at the 94 th percentile. Exhibit S-19.
31. As part of his psychological evaluation, Dr. Lyon also administered the Wechsler Individual Achievement Test-II to assess Student’s achievement levels. Student’s scores were at the 75 th percentile for decoding, 77 th percentile for word reading and spelling, 88 th percentile for numerical operations, 95 th percentile for reading comprehension, and 98 th percentile for written expression. Exhibit S-19.
32. As part of his psychological evaluation, Dr. Lyon administered projective testing. Dr. Lyon’s findings were that Student indicated that he is happy in the areas of school, his behavior and his friendships. The evaluation included the following additional finding at page 5:
[Student] said that he likes people and that he believes that they like him. He indicated that he is social and that he has friends. He said he is not picked on or scapegoated, and that he feels accepted.
Exhibit S-19.
DISCUSSION
A. Summary of Decision
Student has an articulation impairment that causes him occasionally (approximately 10 to 15% of the time) to pronounce the “s” or “z” sound as though it were an “f” or “th” sound. Student’s speech is always intelligible. The issue to be decided by me is whether Student is currently eligible to continue to receive speech-language services to address this articulation impairment.
In order for Student to be eligible to receive speech-language services, the articulation impairment must adversely affect his education. There was testimony that Student’s articulation impairment may be distracting to the listener and that it has resulted in teasing by his peers. However, the evidence persuaded me that Student’s articulation impairment currently does not adversely affect his education; and for this reason, I agree with Hanover that Student is no longer eligible for special education.
Student has made significant progress over the years regarding his speech impairment. It perhaps may be of some consolation to Parents that testimony indicated that Student is likely to continue to improve to the point of mastering the correct pronunciation of “s” and “z”, even without further speech-language services.
My detailed analysis follows.
B. Federal Eligibility Standard
Student may be determined to be eligible for special education and/or related services under either Massachusetts or federal standards. I first consider Student’s eligibility under the federal statute (IDEA) and regulations thereunder, and then turn to the Massachusetts statute and regulations.1
The federal special education statute and regulations use an eligibility standard that is similar to the Massachusetts standard. As with the Massachusetts standard, the federal special education regulations use a two-part test of requiring (1) that the student have one of the enumerated disabilities (the federal and state definitions of disability are similar) and (2) that by reason of the disability, the child needs special education and related services.2
A principal difference between the federal and state standards is that under the federal regulations, even if I were to find that Student has one of the enumerated disabilities and even if I were to further find that as a result of this disability, he needs a related service (in this case, speech-language services), Student would not be eligible if he needs only the related service and not special education.3
Student does not seek “special education”, as that term is defined in the federal regulations.4 Rather he seeks only speech-language services, which are considered to be a “related service”.5
Since, at most, Student needs only the related service of speech-language services, I find that Student does not meet the federal eligibility standard.6
C. Massachusetts Eligibility Standard
To satisfy the Massachusetts eligibility standard, a student must satisfy both parts of a two-part test. First, the student must have one or more of the enumerated disabilities; and second, the student “ as a consequence [of the disability] is unable to progress effectively in the general education program without specially designed instruction or is unable to access the general curriculum without a related service.”7
I consider each of these two parts separately below.
1. Communication Impairment .
The evidence made clear (and there is no dispute) that of the possible disabilities under which Student might fall for purposes of eligibility, the only possible disability would be a “communication impairment” as result of his difficulties with articulation.
The state special education regulations’ definition of “communication impairment” provides as follows:
(g) Communication Impairment – The capacity to use expressive and/or receptive language is significantly limited, impaired, or delayed and is exhibited by difficulties in one or more of the following areas: speech, such as articulation and/or voice; conveying, understanding, or using spoken, written, or symbolic language. The term may include a student with impaired articulation , stuttering, language impairment, or voice impairment if such impairment adversely affects the student’s educational performance .8
Parents’ expert and Hanover’s speech-language evaluation are in agreement that Student does not have any limitation, impairment or delay with respect to his expressive and/or receptive language. Fact section of this Decision (Facts), pars. 7, 23. There is no contradictory evidence. For these reasons, I conclude that Student does not satisfy the first sentence of the above-quoted definition of “communication impairment”.
I now turn to the second sentence of the definition, and consider whether Student’s articulation impairment adversely affects his educational performance.
Student’s 4 th grade teacher (Mr. Reiber) credibly testified that Student’s articulation impairment is, at times, noticeable, but that Student’s speech is always intelligible both to Mr. Reiber and, apparently, to the other children in the classroom. Facts, par. 13. All of the evidence presented in this dispute is consistent with the conclusion that Student’s speech is always intelligible. Facts, pars. 8, 19, 24, 27, 28.
With respect to Student’s participation in the classroom, Mr. Reiber credibly testified that Student participates orally in class (through asking and answering questions and through more formal, prepared presentations) without any apparent limitation or difficulty. Facts, par. 12. Mr. Reiber concluded that Student’s articulation impairment does not negatively affect his educational progress. This conclusion was supported by Ms. Abele’s observation of Student in the classroom. Facts, par. 15, 22. The achievement testing and academic progress reports reveal no difficulty regarding educational performance. Facts, pars. 29, 31.
Parents’ only expert testified that she had no opinion regarding the impact, if any, of Student’s articulation impairment on his educational progress. Facts, par. 10.
The only evidence in support of the conclusion that Student’s articulation impairment adversely affects his educational performance was the testimony of Parent. Parent testified that his son has told him of teasing by his peers on the bus, on the playground and during the weekends. Parent believes that this teasing is occurring as a result of Student’s articulation impairment and that, because Student is sensitive and internalizes difficulties, the teasing negatively impacts Student’s ability to achieve in school. Parent did not offer any additional details or any examples of how the articulation impairment has actually impacted Student’s education.9 Facts, pars. 2, 3.
Parent presented as a candid and credible witness who has a close relationship with his son and who cares deeply about him. I have no reason to doubt that Student has told Parent about being teased because of his articulation impairment and similarly have no reason to doubt that Parent believes that the teasing has negatively impacted Student’s educational performance.
However, for the reasons explained below, Parent’s testimony is not sufficient to persuade me that Student’s articulation impairment either directly (or indirectly as a result of teasing) has a negative impact upon Student’s education.
Parent’s belief that Student’s articulation impairment (at least indirectly) impacts Student’s ability to achieve in school is unsupported by any other evidence in the record. Parent has never observed Student in school during this school year, nor has he brought his concerns regarding teasing to the attention of Mr. Reiber. Parent has not pointed to any examples or objective indications that Student’s academic performance is negatively impacted by his articulation impairment.
In contrast, the objective indications of Student’s educational performance, including academic progress reports and achievement testing, and the credible testimony of Student’s 4 th grade teacher (Mr. Reiber) that Student is performing well in the classroom, strongly support Mr. Reiber’s conclusion that Student’s articulation impairment does not impact his educational progress. Facts, pars. 12, 15, 29, 31. I also note that those who have observed Student in school have testified that they have never seen Student being teased and that he appears to have friends and interacts with other children in a typical manner. Student’s appearance at school as well as projective testing reveal no negative impact from any teasing that may be occurring. Facts, pars. 3, 4, 14, 32.
For these reasons, I am persuaded that Student’s articulation impairment does not adversely affect his educational performance.
I therefore find that Student does not meet the definition of communication impairment, and therefore does not meet the first prong of the Massachusetts eligibility standard. On the basis of these findings, I conclude that Student is not eligible under the Massachusetts standard.
2. Ability to Access the General Curriculum Without a Related Service .
Having found Student ineligible under the first prong (above), I need not consider the second prong. However, in order to provide the parties with further guidance, I will nevertheless consider whether Student satisfies the second prong – that is, it must be demonstrated that as a consequence of his impairment, Student is “unable to progress effectively in the general education program without specially designed instruction or is unable to access the general curriculum without a related service .”10
It is apparent that Student does not seek “specially designed instruction”.11 Rather he seeks only speech-language services, which are considered to be a “related service”.12 Therefore, to satisfy this part of the Massachusetts eligibility standard, I must find that Student is unable to access the general curriculum without the related service of speech-language services.
As discussed above, there is no dispute that Student’s speech is intelligible, both to adults and other students. Facts, pars. 8, 12, 13,19, 24, 27, 28. Mr. Reiber’s and Ms. Abele’s unopposed testimony was persuasive that Student’s articulation impairment does not, in any way, limit or impede Student’s participation in 4 th grade or, in any other way, limit or impede his access to the general curriculum. Facts, pars. 15, 22.
Parent’s testimony, discussed above, is the only possible basis upon which I might conclude that Student is not able to access the general curriculum without speech-language services. However, Parent has not observed Student in school, and Parent provides no factual foundation upon which his conclusion might be based. I further note that Parents’ only expert testified that she had no opinion as to whether Student’s articulation impairment negatively impacted his ability to access the general curriculum. Facts, pars. 3, 10.
I find the evidence to be persuasive that Student is able to access the general curriculum without the related service of speech-language services. I also note that, on the basis of Ms. Abele’s testimony, it is reasonably likely that even without continued speech-language services, Student’s articulation will further improve and he will master the correct pronunciation of “s” and “z”.13 Facts, par. 21
I find that Student does not meet the second prong of the Massachusetts eligibility standard and therefore is not eligible under the Massachusetts standard.
ORDER
Hanover’s determination that Student is no longer eligible for special education and/or related services is AFFIRMED.
By the Hearing Officer,
William Crane
Dated: March 1, 2005
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL
Effect of the Decision
20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must obtain such stay from the court having jurisdiction over the party’s appeal.
Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).
Compliance
A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appeals 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 superior court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).
Under Massachusetts General Laws, Chapter 30A, Section 14(1), appeal of a final Bureau decision to state superior court must be filed within thirty (30) days of receipt of the decision.
The federal courts have ruled that the time period for filing a judicial appeal of a Bureau decision in federal district court is also thirty (30) days of receipt of the decision, as provided in the Massachusetts Administrative Procedures Act, M.G.L. c.30A . Amann v. Town of Stow , 991 F.2d 929 (1 st Cir. 1993); Gertel v. School Committee of Brookline , 783 F. Supp. 701 (D. Mass. 1992).
Therefore, an appeal of a Bureau decision to state superior court or to federal district court must be filed within thirty (30) days of receipt of the Bureau decision by the appealing party.
Confidentiality
In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
Record of the Hearing
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.
1
Parents have not raised the issue of eligibility under Section 504 of the Rehabilitation Act, and I therefore do not address it.
2
20 USC 1401(3); 34 CFR 300.7.
3
34 CFR 300.7(a)(2)(i).
4
34 CFR 300.26.
5
The federal definition of “related services” includes “speech-language pathology services”. 34 CFR 300.24(b)(14).
6
Student also does not meet the federal eligibility standard because he does not have one or more of the disabilities required for eligibility. Under the federal eligibility standard, the only impairment or disability that Student might arguably meet is “speech or language impairment”. 34 CFR 300.7(c)(11). To meet the definition of “speech or language impairment”, Student must have a communication disorder (that may include impaired articulation) that “adversely affects [his] educational performance”. For same reasons explained in part C1 of this Decision, I find that Student’s articulation impairment does not adversely affect his educational performance, and therefore Student does not meet the federal eligibility standard.
7
603 CMR 28.02(9). MGL c. 71B, s. 1 provides similar language within its definition of a “school age child with a disability”.
8
603 CMR 28.02(7)(g) (emphasis supplied).
9
Parent testified that Student has missed one day of school this academic year, implying that the absence was caused, at least indirectly, by teasing. Parent’s further testimony made clear, however, that he was unsure of the reason for his son’s absence. I therefore do not consider this evidence to be relevant.
10
603 CMR 28.02(9). See also the statutory definition of “school age child with a disability” at MGL c. 71B, s. 1.
11
Although not defined within the state statute or regulations, the term “specially designed instruction” is defined within the federal regulations as follows:
Specially-designed instruction means adapting, as appropriate to the needs of an eligible child under this part, the content, methodology, or delivery of instruction—
(i) To address the unique needs of the child that result from the child’s disability; and
(ii) To ensure access of the child to the general curriculum, so that he or she can meet the educational standards within the jurisdiction of the public agency that apply to all children.
34 CFR 300.26(a)(3).
12
Massachusetts has adopted the federal definition of “related services”. 603 CMR 28.02(19) (“ Related services shall have the meaning set forth in federal special education law at 34 CFR §300.24”). The federal definition of “related services” includes “speech-language pathology services”. 34 CFR 300.24(b)(14).
13
I found Ms. Abele’s testimony regarding Student’s articulation impairment to be particularly credible. She has extensive, relevant experience and knowledge, and testified in a candid and thoughtful manner.