In Re: Hingham Public Schools – BSEA # 11-3762

COMMONWEALTH OF MASSACHUSETTS

Division of Administrative Law Appeals

Bureau of Special Education Appeals

 

In Re: Hingham Public Schools                                                            

BSEA # 11-3762

 

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 c. 71B), the state Administrative Procedure Act (MGL c. 30A), and the regulations promulgated under these statutes.

A hearing was held on March 7, 8, 9 and 28, 2011 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:

Student

Student’s Mother

Student’s Father

Jennifer Griswold                   Private Special Education Tutor

Lorna Kaufman                       Private Reading Specialist

Kira Armstrong                       Private Neuropsychologist

Karl Pulkkinen                        Public Schools Liaison, Landmark School

Joan McLaughlin                    Academic Case Manager, Landmark School

Kristen Stuart                         3rd Grade Regular Education Teacher, Hingham Public Schools

Elizabeth O’Neill                    Special Education Teacher, Hingham Public Schools

Boris Samarov                         4th Grade Regular Education Teacher, Hingham Public Schools

Christine Rogg                        4th Grade Special Education Teacher, Hingham Public Schools

Joan Kilban                             5th Grade Regular Education Teacher, Hingham Public Schools

Irene Kopp                             Speech-Language Pathologist, Hingham Public Schools

Mary Stenson                         Speech-Language Pathologist, Hingham Public Schools

Jennine Pratt                           Occupational Therapist, Hingham Public Schools

Marian Francis                        Occupational Therapist, Hingham Public Schools

Elizabeth Costanza                 School Psychologist, Hingham Public Schools

Mary Ann Cushing                 School Psychologist and Team Chair, Hingham Public Schools

Alisa Valley                            5th Grade Special Education Teacher, Hingham Public Schools

Mary Beth Robinson              Reading Specialist, Hingham Public Schools

Charles Cormier                      Principal, Hingham’s Plymouth River Elementary School

Jean Curtis Loud                     Director of Student Services, Hingham Public Schools

Beth Simon                             Attorney for Parents and Student

Carolyn Kain                          Attorney accompanying (not representing) Parents and Student

Alexandra Peredo Carrion       Attorney accompanying (not representing) Parents and Student

Mary Joann Reedy                 Attorney for Hingham Public Schools

Laurie Jordan                          Court Reporter

Pauline Bailey             Court Reporter

Kristen Edwards                     Court Reporter

The official record of the hearing consists of documents submitted by the Parents and marked as exhibits P-1 through P-19; documents submitted by the Hingham Public Schools (Hingham) and marked as exhibits S-1 through S-44; and approximately four days of recorded oral testimony and argument. As agreed by the parties, oral closing arguments were made on April 7, 2011, and the record closed on that date.

SUMMARY

The principal issue in dispute is whether Hingham’s proposed IEP calling for placement in an inclusion, 5th grade classroom with special education supports and with pull-out services for reading and writing is appropriate.

For a number of years, Parents, including their educational expert, endorsed the inclusion model with pull-out services that was proposed and provided by Hingham. Parents and Hingham staff worked well together to make a number of adjustments to the IEP to conform to recommendations of Parents’ experts and to address Parents’ concerns. Parents have made clear their respect and gratitude for the accomplished and compassionate teachers and service providers who have worked with their son over the years in the Hingham Public Schools; Parents’ experts have similarly noted the highly qualified teachers whom they observed in Student’s classrooms; and Student himself clearly enjoyed being taught by these dedicated professionals who sustained him during several challenging years in school.

Over time, Parents and their experts came to believe that Hingham’s educational approach was not sufficient to allow Student to become an independent and proficient learner consistent with his educational capacity, and they remained concerned about Student’s continuing high level of frustration and low self-esteem regarding school. The parties essentially had an honest difference of opinion which came to a head at the end of 4th grade, with Parents opting to place their son privately at Landmark School (Landmark) for 5th grade.

Hingham takes the position that a Landmark placement is unnecessarily restrictive and allows fewer educational opportunities than were proposed through the Hingham IEPs.

Hingham believes that not only can Student access the curriculum in a regular education 5th grade classroom if given sufficient supports and accommodations, but that such a curriculum provides a far richer academic experience than would be provided within a substantially-separate learning environment such as a private, special education school. Hingham takes the position that Student’s underlying language deficits were appropriately remediated through special education and related services through 4th grade, and would continue to be appropriately remediated pursuant to its proposed 5th grade IEP.

This part of the dispute was closely contested, with each party presenting extensive, credible evidence in support of its position. Ultimately, for the reasons explained in detail in the Discussion section of the instant Decision, I found Parents’ position to be more persuasive and concluded that a more intensive educational model was warranted and needed for Student for 5th grade in order to allow him to make effective progress in his reading deficit areas and thereby develop his educational potential. I found that Student required a substantially-separate, language-based educational program, and that the educational services offered Student at Landmark for 5th grade were appropriate for this purpose.

Parents also presented claims for compensatory education based upon alleged failure to provide appropriate IEPs during parts of 3rd grade and all of 4th grade. But, Hingham generally followed the recommendations of Parents’ educational expert through 4th grade, and Parents accepted a number of IEPs as a result of Hingham’s responsiveness. For these and other reasons explained in more detail below, I found that Parents are entitled to no relief on the basis of their compensatory claims.

Parent presented one claim regarding an alleged procedural violation relative to Hingham’s alleged failure to review an independent evaluation on a timely basis. I found for Hingham regarding this claim on the basis of the statute of limitations.

ISSUES

 

The issues to be decided in this case are the following:

Prospective claim

 

  1. Is the IEP most recently proposed by Hingham (which IEP is for the period 10/26/10 to 6/15/11; exhibits S-1, P-6 B) 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 Landmark satisfy this standard?

Reimbursement claim

  1. Were the IEP amendment and IEP proposed by Hingham for the 2010-2011 school year (which is the IEP amendment from a June 15, 2010 Team meeting and the IEP for the period 10/26/10 to 6/15/11; exhibits S-1, S-5, P-6 B, P-11 C) reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment?
  2. If not, was Parents’ unilateral placement of Student at Landmark appropriate?
  3. If so, are Parents entitled to reimbursement of their out of pocket expenses attributable to their placement of Student at Landmark?

 

Compensatory claim

  1. Were the prior IEPs proposed by Hingham reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment?
  2. If not, are Parents entitled to compensatory relief?

Procedural claim

  1. Did Hingham violate Parents’ procedural rights under special education law?
  2. If so, are Parents entitled to compensatory relief?

FACTS

 

Profile of Student

  1. Student is a 5th grader and lives principally with his Mother in Hingham, MA. Student’s Parents are separated but are both highly involved with their son’s education and are dedicated advocates for his appropriate education. Testimony of Mother.
  1. Student is uniformly described as a wonderful person. He is intelligent, with full-scale IQ score around the 70th He is highly motivated to do well in school; and when Student feels comfortable and confident, he enjoys a challenge. He is also persevering, athletic (e.g., he is a competitive and successful downhill skier), kind, and social. Indeed, his good natured spirit and social skills were evidenced during his testimony. Testimony of Student, Mother, Griswold, Rogg, Samarov; exhibits P-11 D (pages 3, 6, 12), P-14 J.
  1. Student has been diagnosed with a variety of disabilities. Most notably, Student has a Reading Disability (dyslexia) characterized by weak phonological processing, weak verbal memory and mildly reduced rapid naming ability. Student’s dyslexia, in combination with other deficits, has negatively impacted his ability to gain language skills pertaining to reading and writing, and he continues to have significant reading deficits in automaticity and fluency. Student also has a Disorder of Written Expression that is likely attributable in large part to his reading and spelling difficulties. Additional deficits include an anxiety disorder and an Attention Deficit Hyperactivity Disorder (ADHD), with notable difficulties with organization and impulse control. Student is on medication for ADHD (medication commenced after a neurological evaluation near the end of 4th grade diagnosed Student, for the first time, with ADHD). Student has strengths in the areas of oral and reading comprehension when he is given substantial structure and the material is not complex. He also generally scores well within the average range for reading comprehension on multiple choice testing. Testimony of Mother, Cushing, Griswold, Rogg, Samarov, Robinson, Armstrong, Kaufman; exhibits P-6 B, P-11 C, P-11 D (pages 6, 12), P-14 J, S-1, S-5.

Hingham’s most recently proposed IEP and Student’s current placement

  1. Most recently and for the past several years, Hingham has proposed IEPs calling for Student to be placed in an inclusion setting with pull-out services to address his reading and writing deficits. The most recent IEP, which was developed at a Team meeting on October 26, 2010, calls for the following direct special education instruction outside of the general education classroom:
  • Reading instruction for 45 minutes, four times per six-day cycle. This is listed as being provided in a small group and, in fact, would have been provided through 1:1 instruction using the Orton Gillingham program.
  • Reading instruction (using the Wilson program) for a half hour, five times per six-day cycle. This would have been provided in a small group for purposes of practicing spelling, fluency and automaticity.
  • Written language instruction for a half hour, once per six-day cycle. This would have been provided in a small group.
  • Speech-language services for a half hour, twice per six-day cycle.

The IEP calls for the following special education instruction to be provided within the general education classroom:

  • Academic and behavior support for 360 minutes per day through an aide.
  • Written language instruction in a small group for a half an hour, twice per six-day cycle.
  • Math support for a half hour per day.

In addition, the IEP calls for consultation (unspecified) for fifteen minutes every six-day cycle. As described within the additional information section, the IEP also calls for one 30-minute session per cycle with the school adjustment counselor to address Student’s anxiety. Testimony of Valley; exhibits P-6B, S-1.

  1. Parents fully rejected this IEP; and for the 2010-2011 school year, they unilaterally placed their son at Landmark. Parents are seeking reimbursement of their expenses and an IEP calling for prospective placement at Landmark, in addition to compensatory services. Testimony of Mother; exhibits P-6B, S-1.

Educational background

  1. Early school years. Student attended an integrated pre-school as a regular education student. This was a successful experience. Student’s academic difficulties began in 1st grade when he struggled with speech and writing. He was evaluated by Hingham, and an IEP was proposed, which Parents fully accepted. However, Student’s frustration was evident at home where he began resisting doing his homework and did not want to go to school even though he is highly motivated to do well in school. Student attended Hingham’s South Elementary School. Testimony of Mother.
  1. Student’s difficulties continued into 2nd grade when, his Mother reported, he felt the instruction was not understandable and that he was the “dumbest” student in his classroom. During 2nd grade, Hingham provided small group instruction for literacy, individual instruction for reading, and occupational therapy. Parents obtained an evaluation from Florence Lai, MD, at the Learning Disorders Unit at Massachusetts General Hospital on February 15, 2007. The evaluation report, which provides test results and summary impressions and recommendations, concluded that Student has “evidence for dyslexia” and recommended that Orton Gillingham services be provided by Hingham four to five times per week in “individual or very small group (3:1 or less) sessions.” Parents take the position that Hingham never reviewed this evaluation at an IEP Team meeting. At home, Student continued to complain about feeling exhausted at school and having difficulty with his attention. Near the end of the school year, Parents hired a private special education teacher (Jennifer Griswold) who began tutoring Student for one or two hours per week using Orton Gillingham instruction. Testimony of Mother, Griswold; exhibits P-17 (page 30), P-18.
  1. Hoping that it would ease Student’s learning difficulties, Parents requested (and Hingham agreed) that Student repeat 2nd For this school year (when Student repeated 2nd grade), Parents fully accepted the IEP, which called for continuation of Student’s special education services from the previous school year, plus speech-language services for articulation. Within a month after beginning the school year, Student felt that nothing had improved since the previous school year, the academics were no easier, and he did not feel any smarter. Student resisted going to school and doing his homework, even though he loved his teacher. Private Orton Gillingham tutoring continued, and Mother testified this was the only area where her son felt successful. Testimony of Mother; exhibit P-17.
  1. 2008-2009 school year (3rd grade). Pursuant to a fully accepted IEP, Student continued to attend Hingham’s South Elementary School in 3rd He was placed in Kristen Stuart’s regular education classroom and was taught in small group instruction for reading and written language. Special education services from the previous year continued. Parents and Student again were happy with Student’s teachers. But, as with previous years, Parents found that Student was unable to complete his homework independently, and he felt frustrated by his homework and by school in general. The private tutoring continued and, according to Mother, this continued to be the one area of success in that Student was making progress and appeared to enjoy the learning process. There was no coordination between the private tutor and Student’s Hingham teachers. Testimony of Mother, Griswold, O’Neill.
  1. Student’s 3rd grade special education teacher (Ms. O’Neill) testified that during this school year, Student was reading at the 3rd grade instructional level, as reflected in reading assessments (using the Informal Reading Inventory (IRI) and the Qualitative Reading Inventory (QRI) informal assessments), and she believed that he was appropriately placed within a regular education 3rd grade with pull-out services to remediate his deficits. Ms. O’Neill testified that through her direct instruction to Student, she taught him decoding skills using an Orton Gillingham methodology, focused on Student’s reading deficits in the areas of multi-syllable words and fluency, and taught him skills and strategies to improve his reading comprehension. Ms. O’Neill testified that despite Student’s areas of reading deficits (particularly regarding decoding multi-syllable words and fluency), he was able to demonstrate oral and reading understanding in the average range. In her opinion, Student made progress as demonstrated by test scores (the IRI, QRI, and MacMillan McGraw informal assessments), grades and classroom work. She testified that during 3rd grade, Student did not need more intensive special education instruction than he was receiving. Testimony of O’Neill; exhibits P-14 (pages 30, 77), S-28 (page 3), S-39, S-40 (page 2), S-44.
  1. During an IEP Team meeting in the spring of 3rd grade (March 2009), Parents, through their advocate, confronted Hingham, taking the position that Student’s services were not appropriate. Hingham did not agree, and Parents for the first time rejected an IEP—that is, the IEP that Hingham proposed as a result of this meeting for the period 3/17/09 to 3/17/10. This IEP called for a continuation of the same special education services which Student had been receiving up to this point in time during 3rd The services included the following direct special education instruction outside of the general education classroom:
  • Reading instruction in small group for 90 minutes, once per six-day cycle.
  • Written language instruction in small group for 90 minutes, once per six-day cycle.
  • Occupational therapy services for a half hour, once per six-day cycle.
  • Speech-language services for a half hour, once per six-day cycle.
  1. As with previous IEPs, this IEP did not call for any special education instruction to be provided within the general education classroom. The IEP proposed consultation (unspecified) for ten minutes every six-day cycle. Testimony of Mother; exhibits P-14 K, S-17.
  1. Parents then met separately with Dr. Loud (Hingham’s Director of Special Education) to seek a resolution. Although no agreement was reached regarding a change in services, Hingham agreed to fund an independent evaluation by an independent educational expert (Lorna Kaufman, PhD), and the evaluation occurred on May 7, 2009. Testimony of Mother, Kaufman, Loud; exhibit P-14 J.
  1. Kaufman’s written evaluation report found that Student had a Reading Disability (Dyslexia) characterized by weak phonological processing, weak verbal memory and mildly reduced rapid naming ability.   She found that Student continued to struggle with decoding, that his reading lacked automaticity and fluency, and that he was reading below grade level. Similarly, she found that his skills in spelling and writing were delayed. Dr. Kaufman noted that although Student is intelligent and despite receiving special education reading instruction, he “does not appear to have made appropriate progress in developing reading skills.” As a result, she recommended more frequent and more intensive reading tutorials than he had been receiving. Specifically, her recommendations included the following:
  • 1:1 tutoring three to five times per week using the Orton Gillingham reading program or the Wilson reading program.
  • Reading instruction that is consistent and coordinated from setting to setting (Dr. Kaufman observed that Student was receiving reading instruction from more than one teacher, using more than one methodology).
  • Instruction in written expression.

Testimony of Kaufman; exhibit P-14 J.

  1. A Team meeting occurred on June 15, 2009 to review Dr. Kaufman’s evaluation and recommendations, with Dr. Kaufman participating by speaker phone. Hingham adopted a number of Dr. Kaufman’s recommendations, including 1:1 Orton Gillingham instruction. More specifically, Hingham’s new proposed IEP called for the following direct special education instruction outside of the general education classroom:
  • Reading instruction provided individually for 45 minutes, three times per six-day cycle. Orton Gillingham reading program was utilized for this instruction.
  • Written language instruction in small group for 90 minutes, once per six-day cycle.
  • Occupational therapy services for a half hour, once per six-day cycle.
  • Speech-language services for a half hour, once per six-day cycle.

The IEP did not call for any specialized education instruction to be provided within the general education classroom. The IEP proposed consultation (unspecified) for ten minutes every six-day cycle. Parents rejected this IEP, except for the Orton Gillingham instruction. Exhibit S-15.

  1. During this period of time, Parents also met with Hingham’s Superintendent of Schools, and it was decided that it would be best for Student to switch schools to the Plymouth River Elementary School for 4th Parents were enthusiastic and hopeful that this switch would provide a fresh start for their son. Testimony of Mother.

 

  1. 2009-2010 school year (4th grade). On September 21, 2009, the Team reconvened with Parents, their (new) advocate and Dr. Kaufman. The IEP Team reviewed the results of a private speech-language recently completed by Kathleen Grabowski that recommended that Student receive direct speech-language services for purposes of remediation of his language deficits. Testimony of Mother, Kaufman, Cushing; exhibit P-14 I.
  1. On the basis of the Team meeting, Hingham proposed amendments to the IEP.   As amended, the new IEP called for the following direct special education instruction outside of the general education classroom:
  • Reading instruction for 45 minutes, three times per six-day cycle. This is listed as being provided individually or in a small group and, in fact, was provided through 1:1 instruction using the Orton Gillingham program.
  • Reading instruction (using the Wilson program) for a half hour, four times per six-day cycle. This was provided in a small group for purposes of practicing what was learned through the above reading instruction regarding spelling, fluency and automaticity.
  • Written language instruction for a half hour, once per six-day cycle. This was provided in a small group.
  • Speech-language services for a half hour, twice per six-day cycle.
  • Occupational therapy services for a half hour, twice per six-day cycle.

The IEP called for the following special education instruction to be provided within the general education classroom:

  • Speech-language services in a small group for a half hour, once per six-day cycle.
  • Written language instruction in a small group for a half an hour, twice per six-day cycle.

In addition, the IEP called for speech-language consultation for a half hour per six-day cycle, consultation (unspecified) for fifteen minutes per six-day cycle, and occupational therapy consultation for five minutes per six-day cycle. Testimony of Mother, Cushing; exhibits P-11 H, S-13.

  1. It was agreed by Parents and Hingham that Dr. Kaufman would observe Student’s program. Testimony of Mother, Kaufman, Cushing.
  1. Parents continued to provide private Orton Gillingham tutoring, and also included private speech-language services, in part to minimize the amount of services that Student would need to receive at school through a pull-out model. Testimony of Mother.
  1. Parents were concerned that the pull-out services would result in Student’s missing parts of the school day that he enjoyed or that would benefit him. Mother testified that at the September 2009 Team meeting, it was agreed that Student would not miss any core subjects (including social studies and science), but Mr. Samarov testified that it was agreed at the meeting that Student would need to miss social studies and science in order to have room on his schedule for all of his pull-out services. In any event, Student did not participate in social studies and science pursuant to this IEP. Testimony of Mother, Samarov.
  1. Kaufman observed Student in his classroom on October 6, 2009 and prepared a written observation report. Her report explained that she was impressed with the reading instruction that Student was receiving from Student’s special education teacher (Ms. Rogg), noting that it was well taught and that Ms. Rogg is a “very accomplished reading teacher.” Dr. Kaufman recommended that Student’s individual instruction with Ms. Rogg be increased to every day in order to provide Student “with the best opportunity to improve his reading and will best meet his educational needs.” And, with this addition, Dr. Kaufman recommended that he discontinue participation in the Wilson reading group. Dr. Kaufman also strongly recommended that the reading teacher coordinate the material covered in the Orton Gillingham instruction and Wilson reading group if he remains in both. Her report also indicated that she was impressed with the classroom teacher who, it was observed, provided direct, multisensory, clear instruction. Nevertheless, Dr. Kaufman noted that Student appeared to be having difficulty with attention and understanding what was said in the classroom. Dr. Kaufman also testified that at this time, she believed that Student’s language difficulties could be appropriately remediated through the implementation of her recommendations in a pull-out model, without the need for placement within a substantially-separate, language-based classroom. Testimony of Kaufman; exhibit P-14 J.
  1. On November 10, 2009 an IEP Team meeting was reconvened to discuss Dr. Kaufman’s observation and recommendations. A new IEP was proposed for the period 11/10/09 to 11/9/10, which provided the same services as the above-described IEP from the September 2009 IEP Team meeting, with the following exceptions:
  • Orton Gillingham reading instruction was changed from 45 minutes, three times per six-day cycle to 40 minutes, five times per cycle.
  • Small group reading instruction (using the Wilson program) was changed from a half hour, four times per six-day cycle to a half hour, three times per cycle.
  1. These changes were consistent with Dr. Kaufman’s recommendations that the Orton Gillingham instruction be emphasized, with the result that there would be less need for the small group reading instruction. Parents were pleased with the results of these discussions and meeting, and they fully accepted this proposed IEP and placement on November 18, 2009. Testimony of Mother, Kaufman, Cushing; exhibits P-11 F, S-11.
  1. Mother testified as to her belief that Student was to be included in social studies and science pursuant to discussions during the November 2009 Team meeting. However, I credit Ms. Cushing’s testimony that there was no clear understanding regarding this matter during the November 2009 Team meeting. (Ms. Cushing is Hingham’s IEP chairperson and school psychologist. I found Ms. Cushing to be a particularly careful and reliable reporter of what occurred.) Testimony of Mother, Cushing.
  1. Mother testified that Student was happy and appeared to be doing well in the beginning of his 4th grade year. But, according to Mother, Student was soon as frustrated with school as he had been in the past, he was not able to do his homework, and he said that he was the “dumbest” kid in the classroom. Mother testified as to her concern and surprise when she learned that her son was not being included within social studies or science. She stated that when she confronted Student’s teachers about this, she was told that there was not sufficient time in Student’s schedule to be included in these subjects. Testimony of Mother.
  1. During a February open-house, Mother discovered that the amount of Student’s work that was displayed was not even half as much as the work of each other child. She also testified that some of his displayed work had been scribed. This heightened her concerns regarding the appropriateness of her son’s education and placement. Testimony of Mother.
  1. At Parents’ request, the Team met again on February 8, 2010 to discuss Parents’ concerns. The principal concern addressed during the meeting was Parents’ strong desire that Student be included within his social studies and science classes. The Team suggested that occupational therapy services be terminated since Student was able to complete the skill, in isolation, being worked on by the occupational therapist (the skill was handwriting) and that one of the five sessions of Orton Gillingham tutoring sessions be dropped (the reduced amount remained consistent with Dr. Kaufman’s recommendations), with the result that there would be room in Student’s schedule for science. Student would still not be included for social studies. Parents understood that it would only be possible for their son to take science if these schedule changes occurred. Mother signed a permission statement, allowing for these schedule changes to begin immediately, which they did. Testimony of Mother, Cushing; exhibit S-10.
  1. As a result of the February Team meeting, Hingham proposed an amendment to the 11/10/09 to 11/9/10 IEP that reflected these changes. In addition, the occupational therapy consultation was dropped from the IEP. Parents did not immediately either accept or reject this IEP amendment (Parents’ rejection was ultimately received by Hingham on or about June 15, 2010, as discussed below). Testimony of Mother; exhibits P-11 F, S-9.
  1. On March 5, 2010, Ms. Cushing received a telephone message from Parents’ advocate (Ms. Hickey) who stated that it was not acceptable that Student was missing social studies and that the IEP Team should re-convene to address this. Ms. Cushing called Mother, leaving a telephone message that the Team could re-convene on March 24, 2010. Ms. Cushing did not hear back from Mother. Testimony of Cushing.
  1. Cushing conferred with her colleagues and came up with the idea of dropping Spanish and one session of the Wilson reading group from Student’s schedule, thereby making room for Student to take social studies (as well as to continue to take science). Pursuant to a subsequent telephone message, Ms. Cushing advised Mother of this proposal. Ms. Cushing explained in her phone message that an IEP amendment would be drafted to reflect these changes and would be mailed to Parents. Ms. Cushing again did not hear back from Mother. Testimony of Cushing.
  1. Cushing prepared an IEP amendment with these changes as well as a proposed compromise regarding accommodations on the MCAS. (Parents had opposed any such accommodations, and Hingham compromised its position by proposing accommodations only in the area where they believed that the accommodations would be most needed.) The IEP amendments were mailed to Parents. No IEP Team meeting had occurred with respect to this proposed IEP amendment. Testimony of Cushing, Mother; exhibits S-6, S-7.
  1. Mother testified that believing that they had little choice, Parents did not object to these changes. However, Parents did not actually accept or reject this IEP amendment at this time. (Parents’ rejection was ultimately received by Hingham on or about June 15, 2010, as discussed below.) As a result, the proposed IEP amendment was not implemented; Student did not participate in social studies; and no accommodations were provided on Student’s MCAS. Testimony of Mother, Cushing, Stuart; exhibits P-11 E, S-7.
  1. Parents continued to be concerned about their son’s education. They believed that isolated reading skills were improving but that he was not able to generalize these skills and make use of them for purposes of reading for comprehension. Mother testified that Student was highly frustrated and he felt that he was a failure. She further noted that he rarely understood what was expected for homework, and that he continued to be unable to complete homework independently. Student’s 4th grade teacher (Mr. Samarov) similarly testified that by December and through the remainder of the school year, Student demonstrated a high level of frustration and low self-esteem, with Student’s believing that he was unable to be successful in school. Testimony of Mother, Samarov.
  1. Unsure of whether Hingham’s services were appropriate, Parents sought additional, independent expert advice through a neuropsychological evaluation by Kira Armstrong, PhD, which occurred in May 2010. Dr. Armstrong diagnosed Student as having an anxiety disorder and also concluded that Student had ADHD (Dr. Armstrong was the first person to make either diagnosis). Testimony of Mother, Armstrong.
  1. When comparing her test scores with those of Dr. Kaufman (one year earlier), Dr. Armstrong’s report concluded that although Student had made modest gains in certain isolated skill areas, he was not gaining automaticity in his learned reading skills and that he showed regression of skills in certain areas being addressed by Hingham’s special education services. She cautioned that Student was at risk for having a life-long disability characterized by reading, spelling, and writing deficits even though his cognitive abilities were consistent with full remediation of these deficits. Her written report concluded that Student “will require a school that will focus on his reading skills in all mainstream classes and that is designed to serve children with similar profiles: bright children with disabilities associated with Reading and Written Expression (e.g., the Landmark School).”
  1. On the basis of Dr. Armstrong’s report and their consultation with Dr. Armstrong, Parents concluded that the educational program being implemented by Hingham for 4th grade and proposed for 5th grade would not likely meet their son’s needs, that the educational program could not be modified to be appropriate, and that he required a substantially-separate, language-based program to remediate his language deficits and become an independent learner. It is undisputed that no such program is available within the Hingham Public Schools. Testimony of Parent, Armstrong, Loud; exhibit P-11 D (page 13).
  1. As a result, Parents partially rejected both the IEP amendments from the February 2010 Meeting and the March 2010 IEP amendments, expressing broad concerns regarding the appropriateness of their son’s educational services. Both rejections are dated April 25, 2010 on the IEP forms, but it is uncertain when Parents actually provided the rejected IEPs to Hingham. Mother testified that she hand-delivered the rejected IEPs two weeks or ten days prior to the next Team meeting, which occurred on June 15, 2010. But, Mr. Samarov testified that he believed the rejected IEPs likely arrived at school in Student’s backpack the day before this Team meeting. Ms. Cushing testified that she actually received the rejected IEPs on June 15, 2010 (and, as noted above, I credit her testimony as I found Ms. Cushing to be a particularly careful and reliable witness). In any event, it is not disputed that Hingham special education staff became aware of Parents’ rejection for the first time when they opened the envelope from Parents on June 15, 2010. The Hingham date stamp reflects this date. Testimony of Mother, Samarov, Cushing; exhibits S-7, S-9.
  1. The IEP Team met on June 15, 2010 to review Dr. Armstrong’s report and recommendations. During the meeting, Dr. Armstrong stated her recommendation that Student now required a substantially-separate, out-of-district educational program in order to progress appropriately. Testimony of Cushing, Armstrong.
  1. However, Hingham disagreed with several of the test results and recommendations of Dr. Armstrong. In particular, Ms. Cushing testified that Hingham staff strongly disagreed with the reading test scores as they did not reflect what they observed to be Student’s reading abilities in the classroom. By teacher report, Student was reading well enough to access the general education curriculum and was making reading gains during 4th Hingham witnesses testified that they believed that his dyslexia was not so severe as to require the intensity of remediation provided within a language-based program recommended by Dr. Armstrong, and that he had been making progress and accessing the curriculum with Hingham’s pull-out model. As a result, Hingham disagreed with the need for Student to be placed within a substantially-separate special education program. Testimony of Cushing, Robinson, Rogg, Samarov.
  1. At the same time, Hingham witnesses applauded Dr. Armstrong’s diagnosis of Student’s having ADHD since Hingham teachers had been observing, within the classroom, Student’s difficulties with attention and had concerns regarding the negative impact of this difficulty on his learning. Testimony of Cushing, Robinson.
  1. Also, the Team agreed to add summer services, apparently because of Dr. Armstrong’s concern regarding regression, although Hingham did not believe that Student had regressed. Other special education services were added to provide somewhat more intensive remediation in response to Dr. Armstrong’s concerns. Testimony of Cushing, Armstrong.
  1. As a result of the Team meeting, Hingham proposed amendments to the 11/10/09 to 11/9/10 IEP by adding services and recommended accommodations,[1] while maintaining the pull-out model. The amended IEP called for the following direct special education instruction outside of the general education classroom:
  • Summer services of 180 minutes, four times per week from 7/6/10 to 8/5/10.
  • Reading instruction for 45 minutes, four times per six-day cycle. This is listed as being provided in a small group or individually and, in fact, would have been provided through 1:1 instruction using the Orton Gillingham program.
  • Reading instruction (using the Wilson program) for a half hour, three times per six-day cycle. This would have been provided in a small group for purposes of practicing spelling, fluency and automaticity.
  • Written language instruction for a half hour, once per six-day cycle. This would have been provided in a small group.
  • Speech-language services for a half hour, twice per six-day cycle.

The IEP called for the following special education instruction to be provided within the general education classroom:

  • Academic and behavior support individually or in a small group for 360 minutes per day (Hingham anticipated assigning an aide to Student).
  • Written language instruction in a small group for a half an hour, twice per six-day cycle.
  • Math support for a half hour, four times per six-day cycle.

In addition, the IEP called for consultation (unspecified) for fifteen minutes every six-day cycle and speech-language consultation for fifteen minutes every six-cycle. Testimony Valley; exhibits P-11 C, S-5.

As described within the additional information section of the IEP, it also called for one thirty-minute session per cycle with the school adjustment counselor to address Student’s anxiety. Ms. Cushing testified that the school adjustment counselor, who is a licensed social worker, is highly experienced in teaching strategies to reduce anxiety. Testimony of Cushing; exhibits P-11 C, S-5.

  1. Cushing testified that this proposed IEP ensured that Student would participate in all content areas of instruction for 5th grade. Nevertheless, Parents remained concerned that with the additional, specialized services in the IEP, Student would likely miss parts of his core curriculum, and they were anxious to see a schedule showing precisely what educational services and classes Student would participate in for 5th grade. Parents were notified by a form dated June 18, 2010 that Hingham was not able to provide Parents with Student’s 5th grade schedule until after the 5th grade daily schedules, as well as the special education staffing schedules for 5th grade, had been determined, which would be after the beginning of the 2010-2011 school year. Testimony of Mother, Cushing; exhibit S-4.
  1. By the end of the 4th grade school year, Student’s special education teacher (Ms. Rogg) who taught Student both Orton Gillingham instruction and the small group Wilson reading instruction, and Student’s regular education teacher (Mr. Samarov), believed that Student had made effective progress over the course of the school year, particularly with respect to his reading skills and reading comprehension, as reflected on assessments that were conducted throughout the school year. Hingham’s Team Chair and School Psychologist (Ms. Cushing) testified that, in her opinion, Student’s educational services were appropriate for her in the 4th She noted that Student’s reading skills were sufficient for purposes of his understanding what was being taught in the classroom, although she noted that his math skills declined during 4th grade. Ms. Robinson (Hingham’s Literacy Specialist who has reviewed Student’s IEPs, reports and evaluations) testified that Student made progress working with Ms. Rogg and also made progress (but less so) working with Mr. Samarov. Testimony of Samarov, Rogg, Cushing, Robinson.
  1. During the summer of 2010, Student accessed the summer program proposed by Hingham, and he continued to receive private Orton Gillingham tutoring and private speech-language services. Testimony of Mother.
  1. Over the summer, Parents applied for Student’s admission to Landmark for the 2010-2011 school year. Landmark determined Student to be appropriate for admission. Parents notified Hingham that their son would be attending Landmark and requested public funding. Testimony of Mother.
  1. On August 9, 2010, Parents rejected the June 15th Mother testified that one reason for their rejection was that they had not been provided a 5th grade schedule by this date. Parents were not provided a schedule for their son until September 13, 2011, with a revised (and final) schedule provided during a Team meeting on October 26, 2010. Testimony of Mother; exhibits P-11 C, S-5.
  1. 2010-2011 school year (5th grade). Student began the 5th grade school year at Landmark and has continued to attend school there. Landmark staff testified that Student is engaged in the classroom and is making good progress. They opined that he is appropriately placed at Landmark. Testimony of Mother, McLaughlin, Pulkkinen.
  1. As a result of Dr. Armstrong’s diagnosis of ADHD, Parents consulted a physician who prescribed medication to address Student’s difficulty attending in the classroom. Student takes the medication (although not every day) and indicated that it may be helpful but he dislikes the side effects. Ms. Cushing testified that from her observation, it appeared that Student is focusing better in the classroom at Landmark than when he attended school in Hingham. She opined that this would be predictable as a result of taking medication for ADHD. Testimony of Student, Mother, McLaughlin, Cushing.
  1. Kilban (who would have been Student’s 5th grade regular education teacher at Hingham) testified that, each year, she typically has three or four students with a learning profile similar to that of Student (she has read Student’s evaluations and IEPs but has not worked with or observed Student). She noted that reading at the 5th grade instructional level (rather than reading independently at the 5th grade level) is sufficient to fully access the instructional materials in her classroom. She explained that no child in her classroom is expected to learn a lesson from reading a text independently, but rather everything is chunked into manageable learning pieces, and discussed and reviewed in class. Testimony of Kilban.
  1. Kilban described in detail the schedule that Student would have followed, noting in particular the times when Student would have been pulled out for special education instruction or would have received small group instruction within the regular education classroom of 22 students (23 including Student). She explained that during his pull-out times, Student would not miss any direct instruction. Ms. Kilban testified that she is assisted by a full-time, highly-experienced aide, and noted that no aide within her classroom is assigned exclusively to one student but rather may have responsibilities for certain identified children while, at the same time, assisting Ms. Kilban with instructing the class more generally.
  1. Kilban testified as to the slow pace of her instruction, the multi-sensory approach used to instruct all students, her careful monitoring of all children that they understand all homework assignments, the continual repetition and review (a “snowball” effect) for all instruction, the use of graphic organizers and writing prompts, the high structure of her class, and additional remediation as needed for any particular student.
  1. The last IEP Team meeting (which was Student’s annual review) occurred on October 26, 2010. The proposed IEP from this meeting is the same as the amendments to the 11/10/09 to 11/9/10 IEP described above, except that
  • Summer services were not included,
  • Orton Gillingham reading instruction was changed from small group or individually to small group although it would have been provided through 1:1 instruction, and
  • Wilson reading instruction was changed from a half hour, three times per six-day cycle to a half hour, five times per cycle.
  1. The IEP services are described more fully above in the Facts section of this Decision, under the headingHingham’s most recently proposed IEP and Student’s current placement.” Exhibits P-6 B, S-1.
  1. On December 9, 2010, Dr. Kaufman conducted her last observation of a Hingham classroom. Dr. Kaufman observed the classroom that Student would have attended pursuant to the above-described Hingham proposed IEP for 5th (Ms. Kilban testified that when Dr. Kaufman observed, it was a typical day in her classroom.) In addition, Dr. Kaufman reviewed the neuropsychological evaluation of Dr. Armstrong, referenced above. Dr. Kaufman’s observation report concluded that many of the elements of the program were “impressive” including the regular education teacher (Ms. Kilban) who is “a fine master teacher.” Testimony of Kaufman; exhibit P-6 (page 4).
  1. However, Dr. Kaufman testified and her report reflects that, in her opinion, Student had not made the requisite progress within the pull-out model and that a continuation of this model through Hingham’s proposed educational program for 5th grade would not have been appropriate for Student since it would not likely allow him to “achieve reading skills appropriate to his grade and cognitive ability.” She recommended that to meet this goal, Student needs to be placed within a “fully integrated language based program.” Testimony of Kaufman; exhibit P-6 (pages 4-5).
  1. Hingham teachers and staff testified that they continued to believe that Hingham’s last-proposed IEP is appropriate for Student. For example, Ms. Robinson testified that the proposed IEP offered educational services that are “extremely adequate” to meet Student’s needs. Hingham witnesses also noted that as compared to Landmark, the Hingham program offers valuable contact with typical peers, is therefore less restrictive, and would provide Student with a far-richer content of instruction. Testimony of Robinson, Cushing, Kilban, Rogg, Loud.

 

DISCUSSION

FAPE legal standards

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 stated purpose of the IDEA is “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]

Student’s right to FAPE is assured through the development and implementation of an individualized education program or IEP.[6] An IEP must be custom-tailored to address Student’s “unique” educational needs.[7]

As a general rule, FAPE mandates proposed special education and related services that are “reasonably calculated to enable [Student] to receive educational benefits.”[8] This “does not imply that a disabled child is entitled to the maximum educational benefit possible.”[9] Rather, “[a]n IEP need only supply some educational benefit, not an optimal or an ideal level of educational benefit, in order to survive judicial scrutiny.”[10]

On multiple occasions, the Supreme Court has referenced a FAPE standard that a student is entitled to “meaningful access” to his or her education.[11] Similarly, the First Circuit and several Massachusetts federal district court judges,[12] as well as other Circuit courts have utilized a standard of a “meaningful educational benefit”.[13]

In the application of these standards, “levels of progress must be judged with respect to the potential of the particular child”[14] because “benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end, with infinite variations in between”.[15]

FAPE is defined by the IDEA to include state educational standards,[16] which may exceed the federal floor.[17] Massachusetts regulatory standards require that Student’s IEP Team “include specially designed instruction or related services in the IEP designed to enable the student to progress effectively in the content areas of the general curriculum.”[18] Similarly, the Massachusetts Department of Elementary and Secondary Education-mandated IEP form requires a school district to include within each IEP the specially-designed instruction “necessary for the student to make effective progress” both in the general curriculum and in “other educational needs” including, communication, behavior, language, and social/emotional needs.[19]

Massachusetts statutory standards further require that special education services be “designed to develop the [student’s] educational potential”.[20] And, the stated purpose of Massachusetts special education regulations is “to ensure that eligible Massachusetts students receive special education services designed to develop the student’s individual educational potential.”[21]

In the event that a school district fails to provide FAPE, a parent may enroll the student in a private school and seek reimbursement as equitable relief.[22] Within the reimbursement context, not all of the statutory requirements of FAPE apply to consideration of the appropriateness of the private educational services, nor must every necessary special education service be provided by the private school.[23] Even so, Parents will not be entitled to reimbursement for their privately obtained services at Landmark unless the Landmark placement provided Student is “reasonably calculated to enable the child to receive educational benefits”[24] so that it is “an education otherwise proper under [the] IDEA.”[25]

In Mr. I. v. Maine School Administrative District No. 55, the First Circuit further clarified the necessary elements for reimbursement of a private placement. The Court explained:

In Burlington, the Supreme Court reasoned that because parents who disagree with the proposed IEP are faced with a choice: go along with the IEP to the detriment of their child if it turns out to be inappropriate or pay for what they consider to be the appropriate placement, they are entitled to reimbursement of the expenses of that placement if it turns out they were right in choosing it. Implicit in this reasoning is the notion that parents rightfully decide on a private placement when it addresses, at least in part, their child’s special educational requirements, while the IEP does not. . . .

As we have recognized, a private placement need provide only some element of the special education services missing from the public alternative in order to qualify as reasonably calculated to enable the child to receive educational benefit. Nor must the placement meet every last one of the child’s special education needs. But the reasonableness of the private placement necessarily depends on the nexus between the special education required and the special education provided.[26]

When considering the appropriateness of the private school, the First Circuit has focused on the appropriateness of the services provided to the student in light of the recommendations of the educational experts.[27]

The Supreme Court and First Circuit have made clear on several occasions that reimbursement is a matter of discretionary, equitable relief. In exercising this discretion, I therefore consider the equities, including, among other things, the reasonableness of the parties’ positions.[28]

In the instant dispute, Parents have the burden of persuasion on all issues.[29]

 

Compensatory claims regarding the end of 3rd grade and all of 4th grade

There are many parts to the instant dispute, but fundamental is the question of whether Student’s special education needs have been in the past (and can be prospectively) appropriately addressed through a pull-out model of services as proposed through Hingham’s IEPs, or whether, as Parents assert, nothing less than a substantially-separate, language-based educational program was (and currently is) needed for Student to receive FAPE in the least restrictive environment. I first consider this question in the context of Parents’ compensatory claims.

As explained within the Facts section above, Parents first rejected a Hingham IEP in March 2009. See Facts, par. 11. I will not look back prior to March 2009 because of the general and well-settled rule that acceptance of an implemented IEP precludes the Hearing Officer from considering its appropriateness.[30]

This rejected IEP covered the period from 3/17/09 to 3/17/10. At the time that Parents rejected the IEP in March 2009, there was little probative evidence supporting Parents’ claim of its inappropriateness. As discussed within the Facts section above, Student’s special education teacher and her assessments indicated that Student was accessing the curriculum and making effective progress. The only probative evidence to the contrary was a 2007 evaluation report from Dr. Lai at Mass. General Hospital and Mother’s testimony regarding her son’s level of frustration, low self-esteem, and difficulty doing his homework independently. See Facts, pars. 7, 9, 10.

However, Mother’s testimony is relevant but, by itself, not persuasive. And, Dr. Lai’s evaluation report provides no explanation for her recommendations, Dr. Lai did not testify and therefore there was no opportunity to understand the foundation of her opinions, and her evaluation was completed two years earlier (February 2007). Thus, this evidence was not sufficient to rebut Hingham’s credible evidence in support of the appropriateness of Student’s IEP proposed in March 2009.

Several months later, Parents provided a comprehensive and credible expert educational opinion that Student’s services were not appropriate. In May 2009, as a result of her independent evaluation funded by Hingham, Dr. Kaufman proposed that Student receive more intensive pull-out reading services because, in Dr. Kaufman’s opinion, Student was not making appropriate progress in this area. Dr. Kaufman’s recommendations consisted principally of 1:1 tutoring three to five times per week using the Orton Gillingham reading program or the Wilson reading program, reading instruction that is consistent and coordinated from setting to setting, and instruction in written expression. Once Hingham was presented with these recommendations, it considered Dr. Kaufman’s recommendations and then essentially followed them through a proposed IEP that was developed at a June 15, 2009 IEP Team meeting and an amended proposed IEP as a result of a second Team meeting on September 21, 2009. See Facts, pars. 14-18.

As a result of these two Team meetings, Student began receiving 1:1 Orton Gillingham instruction for 45 minutes, three times per six-day cycle, small group Wilson reading instruction for a half hour, four times per cycle, and written language instruction for a half hour per cycle. See Facts, par. 18.

On October 6, 2009, Dr. Kaufman observed this increased level of pull-out services and was impressed by the quality of instruction. She nevertheless concluded that the 1:1 Orton Gillingham instruction should occur daily. The IEP Team did not adopt this recommendation, but did increase the Orton Gillingham instruction to four sessions per cycle while decreasing the Wilson reading group to three times per cycle. As a result of these changes and Dr. Kaufman’s observation report, Parents fully accepted Hingham’s proposed IEP on November 18, 2009, and I therefore do not now consider the appropriateness of this IEP. See Facts, pars. 22-24.

Parents did not reject a subsequently-proposed IEP until they rejected the IEP amendments proposed by Hingham in February 2010 and then in March 2010. Hingham mostly likely received these rejections on June 14, 2010. There was then little time left in the 4th grade school year to make substantive changes to the services being provided to Student, and the parties’ attention was properly focused more on the summer and the next school year (5th grade). See Facts, pars. 28, 29, 32, 38.

As explained by the First Circuit, Hingham’s actions are only required to “[take] into account what was, and was not, objectively reasonable when the snapshot was taken, that is, at the time the IEP was promulgated.[31] As summarized above, until Dr. Kaufman’s report, Hingham did not have sufficient basis to conclude that its services were not appropriate. And, when Parents provided (through Dr. Kaufman’s evaluation and observations) sufficient basis to intensify Student’s services, Hingham did so. And, Parents fully accepted these more intensive services until their later rejection of IEPs was received by Hingham in mid-June of 4th grade when there was virtually no time left to make changes for 4th grade.

It is also pertinent that until near the end of 4th grade, neither Parents nor their experts had taken the position that Hingham could not appropriately educate Student within its pull-out model. During this period of time, the dispute regarding special education services centered principally upon the number of Orton Gillingham tutoring sessions and the number of Wilson reading group meetings. The parties wrestled with these issues at nearly every Team meeting, and Hingham was careful to consider input of Parents and their experts and made adjustments accordingly. Within a reasonable period of time, the parties were able to work out their concerns regarding type and amount of special education services. See Facts, pars. 7, 14, 17, 22.

What the parties had more difficulty resolving was Parents’ substantial concern that Student was not participating in social studies and science. Eventually, Hingham proposed schedule changes to allow Student to participate first in science and then in social studies. As reflected within the Facts section above, it was likely a failure to communicate clearly around these issues that accounted for the delay in Hingham’s proposing these adjustments to Student’s schedule. I do not fault Hingham in this regard. See Facts, pars. 25, 28, 30-32.

In sum, I find that Hingham took into account what was objectively reasonable at the time the IEPs were promulgated and made reasonable efforts to adjust Student’s services and schedule accordingly. As a result, Parents have not sustained their burden of persuasion that Hingham’s proposed IEPs through 4th grade were inappropriate. Accordingly, I find that Parents are not entitled to any compensatory relief.

Parents’ procedural claim regarding alleged failure to convene an IEP Team meeting to consider an independent evaluation [32]

Parents obtained an evaluation from Florence Lai, MD, at the Learning Disorders Unit at Mass. General Hospital on February 15, 2007. The evaluation report, which provides test results and summary impressions and recommendations, concluded that Student has “evidence for dyslexia” and recommended that the Orton Gillingham services being provided by Hingham be increased to four to five times per week in “individual or very small group (3:1 or less) sessions.” Exhibit P-17 (page 30).

Parents take the position that this independent evaluation was never reviewed by Hingham. State special education regulations require an independent evaluation to be reviewed within ten school days.[33]

The IDEA’s statute of limitations, which is applicable to the instant dispute, requires Parents to “request an impartial due process hearing within 2 years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint”.[34] Exceptions to this two-year rule are not relevant here.

Parents’ only basis for avoiding this bar to their claim is the doctrine of “continuing violation”. Assuming for purposes of discussion that this doctrine applies to the IDEA statute of limitations, I note that the First Circuit has concluded that a party will be barred from utilizing the continuing violation doctrine if, prior to the statute of limitations cutoff, “the acts are sufficiently permanent to make the plaintiff aware of the need to assert his or her rights.”[35] I find this to be the case in the present dispute, thereby making the continuing violation exception unavailable to Parents.

Accordingly, I find that Parents’ procedural claim is barred by the statute of limitations.

Appropriateness of Hingham’s proposed IEPs for 5th grade

I now turn to Parents’ prospective claims. Parents’ arguments rely principally upon the testimony and written reports of their two experts, Dr. Armstrong and Dr. Kaufman. In assessing Parents’ position that the proposed IEPs for 5th grade were inappropriate, I therefore begin with consideration of the credibility and persuasiveness of these two expert witnesses.

I found the testimony of Dr. Kaufman to be credible and generally persuasive. She has substantial knowledge and experience regarding the special education services needed to address Student’s reading and writing deficits. As discussed in more detail below, I found her opinions to be particularly reliable and useful with respect to the question of whether Student can be appropriately educated within a pull-out educational model. I found her testimony to be thoughtful, careful, candid, objective and balanced. I also found Dr. Armstrong’s testimony to be credible and generally persuasive. It is not disputed that she was a highly knowledgeable expert with a solid grasp of Student’s constellation of deficits.[36]

The basis of Parents’ claims regarding the inappropriateness of the 5th grade IEPs depends, to a large extent, on Dr. Armstrong’s neuropsychological evaluation, which occurred in May 2010. At this time, Dr. Armstrong had the advantage of Dr. Kaufman’s educational evaluation a year earlier in May 2009. By using some of the same test instruments, Dr. Armstrong was able to determine, more objectively and more comprehensively than had been previously determined, the extent of Student’s progress from May 2009 to May 2010 as a result of Hingham’s pull-out model of services. Testimony of Armstrong; exhibit P-11 D.

Of most concern to Dr. Armstrong was a comparison of the May 2009 and May 2010 Woodcock Reading Mastery Test scores, which measured Student’s skills regarding word identification, word attack, word comprehension, and passage comprehension. As Dr. Armstrong explained in her written report and testimony, these test scores reflect Student’s ability to utilize decoding strategies for purposes of reading novel words. In order for his decoding instruction to be useful, Student must learn to automatize the decoding skills he has been taught so that he can apply these skills in situations where he must read a word that he has not previously memorized. The Woodcock test scores revealed that with respect to this area of skill development, which is central to Student’s making effective progress towards becoming an independent reader, Student had regressed over the twelve month period from May 2009 to May 2010. Testimony of Armstrong; exhibit P-11 D.[37]

A comparison of the May 2009 and May 2010 Gray Oral Reading Test (GORT) scores from her testing and Dr. Kaufman’s earlier testing was also of concern to Dr. Armstrong. The GORT measures reading rate, accuracy, fluency, and comprehension. This comparison did not reflect regression, but nevertheless indicated that the gap between Student’s skills in this area and those of his peers was widening, in that he was making less than a year’s progress in a year’s time. Testimony of Armstrong; exhibit P-11 D.

Student’s regression, as demonstrated by the Woodcock Reading Mastery Test scores, and his losing ground in relation to his peers, as demonstrated by the GORT scores, were particularly alarming because, as noted in Dr. Armstrong’s written report and testimony, Hingham had been provided intensive pull-out reading instruction through highly capable staff who were using appropriate reading methodologies specifically to address the reading skills measured by Dr. Kaufman and then Dr. Armstrong. Testimony of Armstrong; exhibit P-11 D (page 10).[38]

In her testimony and recommendations, Parents’ other expert (Dr. Kaufman) also considered the comparison of standardized testing regarding reading skills from Dr. Kaufman’s May 2009 and Dr. Armstrong’s May 2010 evaluations. As did Dr. Armstrong, Dr. Kaufman concluded that these test scores demonstrated a lack of effective progress in critical reading skill areas even after extensive and individualized reading services from Hingham that were intended to address those skill areas. Testimony of Kaufman; exhibit P-6, (pages 2, 4).

As explained earlier within the instant Decision, “levels of progress must be judged with respect to the potential of the particular child”.[39] And, Dr. Armstrong’s and Dr. Kaufman’s concerns (regarding Student’s regression and failure to keep pace with his peers regarding reading skills) were heightened in light of their opinion (which was not disputed by any Hingham witness or report) that Student has the educational capacity for remediation of his reading deficits. (In Dr. Kaufman’s words, Student has every ability to become an independent learner.) Similarly, Student’s private tutor (Jennifer Griswold) who has been a special education teacher in the Braintree Public Schools language-based program for ten years, testified that, in her opinion, Student’s reading deficits are capable of remediation with appropriate services. Testimony of Armstrong, Kaufman, Griswold.

Dr. Kaufman further testified that a comparison of her assessment and that of Dr. Armstrong revealed that over the course of twelve months, Student’s written expression had not improved. Student’s writing skills scores, as reflected on the Test of Written Language-3 given by Dr. Armstrong in May 2010 near the end of 4th grade, were all below the 2nd grade equivalency. Testimony of Kaufman; exhibit P-11 (page 8).

In addition to Dr. Armstrong’s and Dr. Kaufman’s concerns regarding Student’s reading deficits and the remediation of those deficits, Dr. Armstrong provided, for the first time through her evaluation, a comprehensive understanding of Student’s other disabilities. Dr. Armstrong testified persuasively that what makes Student’s situation more compelling than his reading deficits alone are the implications of additional deficits. Of most concern are Student’s ADHD (which makes it difficult for him to organize his work, break down tasks into manageable tasks, and put things together in a meaningful way) and his performance-based anxiety (which “flavors everything” for Student). Testimony of Armstrong; exhibit P-11 D.

It is not disputed that what has played out in the classroom and at home (when trying to do homework) over the past several years at Hingham Public Schools reflects these deficits. During this time, Student had a very high level of frustration, anxiety, confusion and, often as a result, exhaustion, all of which substantially impacted his ability to make educational progress within the educational model provided and proposed by Hingham.

For example, Mother testified that Student typically did not understand what was expected of him for homework and had not been able to complete his homework independently since 1st grade. Even though Student’s 4th grade teacher (Mr. Samarov) recognized this concern and sought to address it, Student continued to be confused about his homework expectations. Testimony of Mother, Samarov.

Mother also testified that Student was highly frustrated and felt that he was a failure during 3rd and 4th grades. She explained that this led to Student’s resisting going to school even though, in general, he is highly motivated both to succeed in school and to please adults. Similarly, Mr. Samarov testified that by December of 4th grade and through the remainder of the school year, Student demonstrated a high level of frustration and low self-esteem, with Student’s believing that he was unable to be successful in school. Mr. Samarov testified that Student’s frustration, which likely stemmed from the increasing difficulty of the 4th grade curriculum over the course of the school year, affected his ability to learn. Testimony of Mother, Samarov.

Mr. Samarov also testified that for much of the second half of the 4th grade, Student appeared to be exhausted. He explained that this limited Student’s resiliency and ability to focus. He opined that Student’s fatigue may have been caused by the pace of the instruction in his classroom. Student’s 4th grade special education teacher (Ms. Rogg) also testified as to Student’s appearing exhausted during the second half of 4th grade, although she also stated that by the end of the school year, there appeared to be less fatigue. Testimony of Samarov, Rogg.

During her 4th grade observation, Dr. Kaufman observed that Student appeared to be having difficulty with attention and often did not appear to understand what was said in the classroom. Dr. Armstrong similarly testified that Student often feels lost in class. She added that when this occurs, he tends to freeze and his brain “spins”, thereby compromising his ability to learn. Similarly, when Dr. Armstrong asked Student’s teachers for input as part of her evaluation, she was informed that when Student does not understand a direction or is not sure of what he should be doing in class, he can become distressed and even “shut down”. Dr. Armstrong also testified that he responds slowly and rigidly when he becomes anxious. In contrast, Dr. Armstrong wrote that when Student was comfortable and confident, he “enjoyed a challenge.” Testimony of Armstrong; exhibit P-11 D (page 3).

These concerns reflect Student’s difficulties in 4th grade. It is not disputed that, with relatively minor adjustments, Hingham has proposed a continuation of the 4th grade pull-out model for delivery of services for 5th grade. Hingham’s 5th grade special education teacher (Ms. Valley) testified that in Hingham’s proposed placement for Student for 5th grade, she would have provided essentially the same special education services that had been provided by Ms. Rogg during 4th grade. Testimony of Valley. Thus, Student’s 4th grade experiences are the best evidence of what progress Student would likely make in 5th grade.

Dr. Kaufman observed Hingham’s proposed program for Student for 5th grade, as reflected within Hingham’s most recent IEP. She testified that the observed program proposed left her with substantial doubts as to whether Student would have been able to keep up with and independently access the curriculum. Dr. Kaufman explained that a fundamental concern regarding Hingham’s proposed 5th grade program was that it attempted to teach him at a level above his instructional capacity and to add supports and make accommodations with the hope that Student could access the curriculum. She noted that what was proposed for 5th grade “is similar to the program that was provided in the fourth grade. Both programs have an extensive amount of support, accommodations, and pull-out reading services.” She found that this approach was not successful in 4th grade and would be even less likely to be successful in 5th grade. Testimony of Kaufman; exhibit P-6, page 5.[40]

Dr. Kaufman concluded in her testimony and in her December 2010 observation report that Hingham’s special education services (including pull-out services and support in the regular education classroom), modifications in curriculum and accommodations in its proposed 5th grade placement would not likely result in progress towards remediating Student’s underlying reading deficits. She opined that Hingham had made its best efforts through the educational services provided through 4th grade and proposed for 5th grade, but, in the final analysis, the educational program was (and would be in 5th grade) too disjointed and not sufficiently intensive in order for Student to make effective or meaningful progress in his reading and written language skills. Testimony of Kaufman; exhibit P-6.

Dr. Kaufman and Dr. Armstrong testified as to the urgency of providing Student with an educational program that will remediate his reading deficits and within which he can be successful. Dr. Armstrong testified and her report reflects that because Student’s reading deficits had not been appropriately remediated when he was younger, these deficits are now more difficult to remediate simply because he is older. Also, she explained that at higher grade levels, the work becomes more challenging, and it becomes increasingly difficult to find sufficient time within a student’s schedule to focus on remediation of basic reading skills. Dr. Kaufman and Dr. Armstrong concluded that remediating Student’s reading deficits in 5th grade would be more difficult than remediating these deficits in 4th grade; and as Student advanced into higher grades, his deficits would be even more difficult to remediate successfully. Dr. Armstrong opined that there is a “very significant risk” of his always being a dysfluent reader. Similarly, Ms. Griswold testified that if Student’s reading deficits are not remediated, he will likely struggle throughout his academic career. Testimony of Kaufman, Armstrong, Griswold; exhibit P-11 D.

Dr. Kaufman further testified that Student’s increasing sense of failure and shame also make it more challenging for him to engage and learn. Dr. Kaufman wrote: “Time is running out for [Student] and he cannot continue in a placement that does not provide him with a solid reading foundation.” She testified as to the risk of “losing” Student if his learning needs were not addressed appropriately. Similarly, Dr. Armstrong testified that if Student continues in a learning environment that is characterized by his inability to gain mastery of reading skills, together with frustration and anxiety, there is a “real risk” that Student will increasingly disengage from the learning process, become increasingly anxious and depressed (including “emotional decompensation”), and withdraw from school. Testimony of Kaufman, Armstrong; exhibit P-6 (page 6).

Dr. Kaufman testified that for these reasons, Student now requires a curriculum and instruction that are provided at his pace and level of understanding for all subjects, that will provide more intensive reading services, and that will thereby support his gaining meaningful academic skills. After finding that the type and kinds of instruction offered by Hingham for 5th grade would be insufficient, Dr. Kaufman concluded in her observation report as follows:

At this point, if [Student] is to catch up with his peers and achieve reading skills appropriate to his grade and cognitive ability, he will require a fully integrated language based program. He requires a language based program where the curriculum is coordinated for all subjects and where he can receive daily tutoring in reading and written language. [Exhibit P-6, page 5.]

Similarly, Dr. Armstrong recommended that Student’s service model be changed.[41] She concluded that even with enhanced special education services, “it seems unlikely that a regular public school setting will be able to provide him with the full range of interventions necessary to support his multiple disabilities.” “Consequently, his school TEAM will need to consider whether he should be transferred to an outside placement that is capable of supporting his disabilities in all academic courses ….”   Dr. Armstrong concluded that Student “will require a school that will focus on his reading skills in all mainstream classes and that is designed to serve children with similar profiles: bright children with disabilities associated with Reading and Written Expression (e.g., the Landmark School).” Testimony of Armstrong, Cushing; exhibit P-11 D (pages 12-13). See also her report at page 10, 4th par. (“This indicates with some degree of certainty that [Student] has a particularly severe dyslexia that requires an intensive intervention program that can emphasize language-based teaching strategies throughout his academic curriculum.”)

During her testimony and within her report, Dr. Armstrong further clarified that a substantially-separate, language-based educational program, such as Landmark, is necessary for Student, because such a program will integrate skill development into everything that he does academically, instruction will be taught at a pace appropriate to Student with the result that he will not become lost and frustrated during class, and the instruction will address appropriately not only his reading deficits but also his other weaknesses in written language and organization. She explained that he not only will likely gain critical skills but also will likely gain a sense of competence and success that has been lacking for years in the Hingham Public Schools. Ultimately, this will give Student an opportunity to become an independent learner. Testimony of Armstrong; exhibit P-11 D.

Hingham disagreed with this assessment of Student’s past progress and likely future success within the pull-out model of instruction that has been provided and proposed by Hingham. Hingham witnesses further disagreed that Student now needs a substantially-separate placement to make effective or meaningful progress. Hingham witnesses attacked, in particular, the usefulness and validity of Dr. Armstrong’s test scores because, in Hingham’s view, these scores are inconsistent with informal testing by Hingham, because the test scores showing regression are rebutted by teacher reports of progress and Student’s access to the curriculum, and because Student’s behavior during Dr. Armstrong’s testing may have deflated his test scores. Hingham also takes the position that now that Student is taking medication for ADHD, he would likely have more success in any educational program during 5th grade. I address each of these arguments below.

Ms. Cushing (who testified both as Hingham’s Team chair and as a School Psychologist) testified and it is not disputed that Student’s strength is oral and reading comprehension when he is given substantial structure and the material is not complex; and testing of Student supports this conclusion. Ms. Cushing also testified and it is not disputed that Student generally scores well within the average range for reading comprehension on multiple choice testing. In supporting its position, Hingham relied on testing that reflected these strengths.

For example, during 4th grade Student’s scores on the MacMillan McGraw Hill (MMH) test showed that Student’s reading comprehension increased from 80% in December 2009 to 82% in March 2010 to 94% in June 2010. The MMH testing is multiple choice. In addition, the Dynamic Indicator of Basic Skills (DIBELS) test which showed that Student improved his rate of reading (with 99% accuracy) over this same period of time. The DIBELS testing involves reading a passage. Testimony of Rogg; exhibits S-28, S-29, page 4.

Student’s 4th grade special education teacher (Ms. Rogg) testified that these test scores demonstrated Student’s progress and competence in reading comprehension. Ms. Rogg’s written progress reports during 4th grade further describe Student’s progress in reading and written language. Testimony of Rogg; exhibits S-28, S-29, page 4.

It is not disputed that Student has consistently scored within the average range and appears to be a relatively normal reader in Hingham’s testing. Dr. Kaufman and Dr. Armstrong explained the reason for Student’s relative strengths in this context. They testified that test instruments that provide context and structure (for example, using a reading a passage) and the opportunity to choose an answer from a number of choices (for example, multiple choice testing) permit Student to use his intelligence to gain information and make choices. Dr. Kaufman and Dr. Armstrong were persuasive that this kind of informal testing permits Student to compensate for his continuing reading deficits (particularly, his significant deficits in automaticity and fluency) with the result that he has been able to consistently score in the average range on reading comprehension testing even though his underlying reading deficits are not being remediated. Testimony of Kaufman, Armstrong.

Ms. Rogg testified that the Orton Gillingham instruction that she provided Student throughout 4th grade allowed Student to make effective progress and this progress was demonstrated, in particular, in his reading fluency. She also explained that the small group Wilson reading group, for which she was the teacher and in which Student participated, provided very similar instruction to Orton Gillingham and allowed Student the opportunity to practice and review the concepts introduced in the Orton Gillingham class, with the result that the two methodologies (Wilson and Orton Gillingham) were coordinated and integrated. She opined that Student also made effective progress in the Wilson reading group. Testimony of Rogg.

Ms. Rogg testified that in both the Orton Gillingham instruction and in the Wilson group, Student was working on decoding, comprehension, fluency and spelling; and in the regular education English language arts class, Student worked on these same areas. In order to promote consistency between her instruction and the instruction in the regular education class, she coordinated with the regular education teacher, for example, by sharing what she was working on and generating a spelling list for the regular education teacher. Ms. Rogg testified that everything that she did with respect to Student supported his regular education reading instruction. Ms. Rogg’s testimony is supported by Hingham’s 4th grade testing that indicated that Student was making progress in the Orton Gillingham program by moving from level 3 to level 4 to level 5 from December to March to June, and a similar rate of progress in the Wilson program. Testimony of Rogg; exhibits S-28, S-29, page 4.

It is not disputed that this testing indicated that Student was progressing within the context of the Orton Gillingham and Wilson programs. Dr. Armstrong and Dr. Kaufman agreed that this progress has helped Student to gain isolated reading skills. However, Dr. Armstrong’s and Dr. Kaufman’s test scores (and their testimony based on these test scores) were persuasive that what Student has learned through Hingham’s special education instruction has not been (and is not likely to be) sufficient to allow Student to generalize these skills so that they can be utilized by Student for purposes of becoming an independent reader. Testimony Armstrong, Kaufman.

Student’s 4th grade regular education teacher (Mr. Samarov) testified that notwithstanding Student’s frustration (that affected his ability to learn), Student continued to make progress and continued to meet his benchmarks. Mr. Samarov explained that Student’s writing improved over the course of the school year as he began to include adjectives and similes, and Student learned to make transitions within his writing. Student met teacher expectations regarding written output, provided that he was given substantial support and structure to prompt and guide his writing. Testimony of Samarov; exhibit S-28.

Mr. Samarov also noted progress in spelling. Ms. Rogg also testified that WRAT testing at the end of 4th grade indicated that Student was at grade level in spelling, but she explained that Student continued to need substantial teacher support in this area and Student did not appear to be able to transport his learned spelling into his writing. The WRAT testing is contradicted by Landmark testing (discussed below) indicating that Student continued to struggle with spelling. Testimony of Rogg; exhibits S-28, S-29 (page 4), P-5 (page 76).

Mr. Samarov also testified that over the course of the school year, Student made significant progress in reading. Mr. Samarov noted that when Student was given a passage he had read before, he was able to give appropriate responses, and that when given a novel passage, he could do well in responding if given a multiple-choice test. In reaching his conclusions regarding reading progress, Mr. Samarov relied, in part, on the test results from MMH testing and DIBELS testing, discussed above. As discussed above, Dr. Kaufman and Dr. Armstrong were persuasive that during this kind of informal observation and testing, Student is able to compensate for his continuing reading deficits with the result that he can appear to have good reading comprehension skills. Similarly, Student’s cognitive abilities allow him to appear to access grade level curriculum (with supports and accommodations) even though his underlying reading deficits are not being remediated. Testimony of Samarov, Kaufman, Armstrong.

Hingham also relied on Landmark’s testing of Student in September 2010 using the Stanford Achievement Test. Test scores relative to reading comprehension and listening were at the 6.4 and 6.3 grade level, respectively. Hingham argued that these test scores undercut the credibility of Dr. Armstrong’s testing. However, when Dr. Armstrong testified, she specifically considered these test scores, noting that the Stanford Achievement reading comprehension score was similar to what she reported on the GORT in her own evaluation. She also noted that Landmark’s Stanford Achievement Test showed that Student’s reading vocabulary was at the 3.5 grade level and that a Kaufman Test of Educational Achievement test administered by Landmark in October 2010 revealed that Student’s spelling was at the 3.2 grade level. She testified that these lower test scores were also consistent with her own testing, which found Student to be approximately two years below grade level in these areas. Testimony of Armstrong; exhibit P-5, page 76.

Hingham argued that Student’s behavior (particularly, performance-based anxiety and difficulties with attention) during Dr. Armstrong’s testing (as reported in Dr. Armstrong’s report) may have deflated Student’s test results. In her report and during cross-examination and questioning by the Hearing Officer, Dr. Armstrong acknowledged that her test results “are likely to be a low estimate of his actual abilities” but nevertheless she was persuasive that the test “results are believed to be a valid representation of [Student’s] day-to-day functioning.” As noted above, Dr. Armstrong was a reliable and credible witness. She, better than anyone else, would be the best judge of whether Student’s test behavior during her testing compromised the test results. I credit Dr. Armstrong’s testimony and written report on this issue. Testimony of Armstrong; exhibit P-11 D (pages 5, 6).

Hingham argues that now that Student has been diagnosed with ADHD and, pursuant to a physician’s order, is taking medication to address his attentional issues, he would predictably make greater progress and achieve more success in the classroom. Ms. Cushing testified that, as a general rule, when ADHD is present but not addressed appropriately, a student’s ability to fully engage in the classroom can be compromised, the student often continues to work hard but his academics can suffer, with the result that the student feels inadequate and stressed, and this can lead to anxiety. Ms. Robinson (Hingham’s literacy specialist) emphasized that attention difficulties can have a substantial impact upon a student’s ability to learn how to read. Testimony of Cushing, Robinson.

Ms. Cushing and Ms. Robinson take the position that, with ADHD medication, Student’s attentional issues and anxiety would likely have ameliorated, and he would likely have done significantly better in 5th grade in Hingham that he did in 4th grade. Hingham notes that their argument is supported by what has been observed at Landmark to be Student’s improved attention and engagement in 5th grade now that Student has been taking his ADHD medication. Testimony of Cushing, Robinson.

Hingham also takes the position that its proposal for Student to spend a half hour each week with the guidance counselor during 5th grade to address anxiety issues would benefit Student and ameliorate some of the difficulties encountered during 4th grade.

I do not find these arguments to be persuasive. It is not possible to conclude that because Student appears to be more engaged in class and have less anxiety and frustration at Landmark, that Student would have been more engaged and less anxious and frustrated and generally would have been more successful if he were to have attended 5th grade in the Hingham Public Schools while receiving ADHD medication and services from the Hingham adjustment counselor. Student’s current educational landscape at Landmark is different in many substantive ways as compared to what Hingham provided in 4th grade and what it proposed for 5th grade. From the evidentiary record, it is simply not possible for me to determine with any precision the extent that Student’s ADHD medication accounts for his successes at Landmark (including being engaged in the classroom) nor is it possible to know with any certainty why Student feels less anxiety at Landmark. The smaller class sizes at Landmark with more homogeneous grouping of students, for example, allow for Student to more easily engage and be more comfortable and successful with the instruction.

Apart from Student’s experience at Landmark, there is little basis for concluding with any certainty whether Student’s taking medication for ADHD and Hingham’s proposed services to address Student’s anxiety would have made any substantial difference regarding Student’s attention, his frustration and anxiety, and his academic progress if Student had attended 5th grade at the Hingham Public Schools. Mr. Samarov testified that Student was highly frustrated from December through the end of the school year. Mr. Samarov sought to address this by providing encouragement and positive feedback, but nothing helped. He opined that the frustration was likely caused, in large part, by the increasingly challenging curriculum in 4th grade and by Student’s belief that, in effect, he was right back to where he had been in previous years with respect to his difficulties and frustration in school. Also, as Ms. Cushing acknowledged during cross-examination, Student’s anxiety while at Hingham could easily have had any number of different causes. I also note that Hingham is relying on the testimony of Ms. Cushing and Ms. Robinson for the proposition that ADHD medication and guidance counselor services would have substantially helped Student, but neither of these witnesses knows Student (for example, neither has observed or evaluated Student). Rather, their testimony was based on their experience, in general, working with other students with a diagnosis of ADHD. I do not doubt that Ms. Cushing and Ms. Robinson may be correct in general, but there was no evidence linking their general conclusions to Student’s specific difficulty in learning fundamental reading skills necessary to become an independent learner. Testimony of Samarov, Cushing, Robinson.

In sum, Hingham put into evidence a substantial amount of testimony and documents reflecting Student’s abilities and progress, particularly during 4th grade. I do not doubt that Student made progress within certain splinter areas and I do not doubt the competence of the Hingham staff and their belief that they could appropriately educate Student during 5th grade.

However after considering the evidence in support of Hingham’s position, I do not find it sufficient to rebut the credible and persuasive testimony and written reports of Dr. Armstrong and Dr. Kaufman. For reasons explained above, Dr. Kaufman and Dr. Armstrong were persuasive in drawing into question the probative value of the informal assessments and progress reports relied upon by Hingham. Testimony of Kaufman, Armstrong.

I also note that the undisputed facts regarding Student’s substantial and persistent frustrations and his low self-esteem regarding school work (together with his strong intelligence and motivation to succeed at school and please adults) supported Parents’ position that Hingham’s educational model was not well-suited for Student in the past and would continue not to be well-suited for Student in the future.

In addition, I re-emphasize the reliability of Dr. Armstrong’s and Dr. Kaufman’s testimony and recommendations. Dr. Armstrong did not reach her conclusions and make her recommendations solely on basis of test scores and Mother’s concerns. As reflected within Ms. Cushing’s testimony, Dr. Armstrong first sought and obtained input from Ms. Cushing as well as Student’s 4th grade special education teacher (Ms. Rogg) and regular education teacher (Mr. Samarov); then Dr. Armstrong shared a draft of this part of her report with Ms. Cushing, Ms. Rogg, and Mr. Samarov; and finally, Dr. Armstrong corrected this part of her report based on their further input. This allowed Dr. Armstrong to understand and consider Student’s progress within the classroom. And, of course, Dr. Armstrong considered Mother’s input, previous testing, IEPs, and other school records reflecting Student’s educational needs, services and progress. Testimony of Cushing, Armstrong; exhibit P-11 D (pages 1 through 4).

It is particularly important to note the basis of Dr. Kaufman’s opinions with respect to the question of whether Student can be appropriately educated within a pull-out educational model. Dr. Kaufman is an educational consultant with an impressive depth and breadth of experience as a consultant principally to parents. She has also substantial experience working within the public schools and in academia. More specifically, for eight years, she was the teacher in charge of a learning disabilities mainstreaming program within the Cambridge Public Schools; currently and for the past eleven years, she has been an instructor at Simmons College in the area of assessment of reading disabilities; and she has a long history of conducting cognitive, psychological, and educational evaluations of children, mostly for parents but with occasional consultations to school districts. Testimony of Kaufman; exhibit P-14, (page 27, resume).

Dr. Kaufman has been involved with Student through evaluation and observations from May 2009 through March 2011. It is noteworthy that for most of that time, she recommended that Student could be appropriately educated within the Hingham Public Schools. She testified and her educational evaluation reflects that Student does not have a severe reading disability and he is intelligent and motivated to learn. She initially expected that, with intensive services, Student’s reading deficit would be appropriately remediated. She continued to maintain this opinion through her October 2009 observation of Student. See Facts, pars. 14, 22.

Thus, Dr. Kaufman was a proponent of giving Hingham every opportunity to try to serve Student appropriately within its pull-out model. Dr. Kaufman changed her recommendations for services and placement only after a series of events that included first evaluating Student and making recommendations to Hingham (many of which recommendations were adopted), then observing the results of these services, observing the proposed 5th grade program, and finally comparing Dr. Kaufman’s test scores with the test scores obtained through the evaluation of Dr. Armstrong a year later in May 2010. It was only then demonstrated to her satisfaction that Student’s remediation needs could not be met within the Hingham Public Schools and that he required an out-of-district placement for this purpose. See Facts, pars. 56, 57. [42]

All of this lends to the reliability and usefulness of Dr. Kaufman’s position. Ultimately, more than any other witness, I found her views to be persuasive that the pull-out educational model provided to Student through 4th grade had been thoroughly tried (and adapted) by Hingham and Parents without adequately addressing Student’s reading deficits, that there was no basis for concluding that Hingham’s proposal to continue the same model of instruction for 5th grade would yield substantially different results, and that it was therefore time to provide Student with a more individually-tailored program of instruction designed specifically for children with dyslexia where language-based instruction could be integrated into the entire curriculum and where he would be taught at his instructional level throughout the day.

As discussed above in the section entitled “FAPE legal standards”, an IEP need not provide an “optimal” or an “ideal” level of educational benefit. Rather, an IEP must be custom-tailored to meet Student’s specific special education deficits, with the result that he would be likely to receive “meaningful” educational benefit as gauged in relation to Student’s individual educational potential. It is not disputed that Student has now, as he always has had, the educational potential to become a fluent and independent reader. For Student, appropriate educational services must include special education and related services that are reasonably calculated to allow him to make meaningful progress towards remediating his reading deficits.

Also as discussed above in the section entitled “FAPE legal standards”, Massachusetts FAPE legal standards require that Hingham provide special education services that are “necessary for the student to make effective progress”. The effectiveness of a student’s progress must be judged in light of the overarching purpose of the Massachusetts statutory and regulatory special education standards, which is “to develop the [student’s] educational potential.” Also, under Massachusetts standards, appropriate educational services must include special education and related services that are reasonably calculated to allow Student to develop his educational potential. For Student, this means making effective progress towards remediating his reading deficits. As Dr. Kaufman and Dr. Armstrong testified, remediation of reading skills is central to the development of Student’s educational potential not only with respect to reading, but also in regard to the development of written language skills and the acquisition of substantive knowledge in all subjects.

I now turn to consideration of the point in time when Hingham’s proposed IEPs were appropriate for purposes of the IDEA. As noted above within the context of compensatory claims, Hingham’s actions are only required to “[take] into account what was, and was not, objectively reasonable when the snapshot was taken, that is, at the time the IEP was promulgated.[43]

By the time Hingham received and reviewed Dr. Armstrong’s neuropsychological evaluation report and then discussed this report with Dr. Armstrong at an IEP Team meeting on June 15, 2010, it should have been apparent to Hingham that Student required a substantially-separate, language-based classroom that was not available within the Hingham Public Schools. Dr. Kaufman’s written observation report was prepared subsequently, but what Dr. Kaufman observed in December 2010 was not new information to Hingham and either was or reasonably should have been considered when it proposed its IEPs for 5th grade. I therefore find that Hingham’s proposed IEP for 5th grade was insufficient at the time that it was first proposed in June 2010.

I find this evidence to be persuasive that the IEPs that Hingham proposed for 5th grade were not reasonably calculated to allow Student to make effective or meaningful progress towards remediating his reading deficits, that the IEPs therefore did not meet FAPE standards, and that they cannot be modified to meet FAPE standards without placement into an out-of-district program. Thus, Parents satisfied their burden of establishing the inappropriateness of Hingham’s proposed IEP for purposes of reimbursement and prospective placement, and that an out-of-district placement was and is required to meet FAPE standards for 5th grade.

Landmark School

As noted above, Student began the current school year at Landmark and has continued to go to school there. Landmark’s primary mission is to educate and remediate students who have a language-based learning disability through intensive and integrated instruction, including daily, 45 minute 1-1 reading tutorials, and by teaching students in small, homogeneous groups. Emphasis is placed on remediating learning deficits while, at the same time, teaching self-advocacy skills, organizational skills and content knowledge, with the goal of returning each student to the mainstream setting. Extensive training is provided to all new staff, including a week-long training and on-going supervision for six weeks during Landmark’s summer program. All staff participate in a three-day training at the beginning of the year, as well as monthly in-service training. The training serves the purpose of ensuring that all teachers at Landmark are well versed in the teaching methodologies used at Landmark, so that there can be consistent and integrated instruction across all aspects of the curriculum for purpose of remediating each student’s learning deficits. Testimony of Pulkkinen.

Karl Pulkkinen, who is the is the Landmark public school liaison and who previously was the program director for the Landmark elementary and middle school program testified that through the application process (which included testing of Student), Landmark determined that Student was appropriate for Landmark. He further testified that, on the basis of his observations of Student and review of his records, Landmark continues to be an appropriate placement for Student because Landmark is addressing Student’s remediation needs regarding decoding, reading, math, executive functioning skills, and written language. Mr. Pulkkinen explained that although Landmark is teaching Student grade-level content material, there is an emphasis on teaching skills and strategies so that Student can be an independent learner, particularly in the areas of reading. Testimony of Pulkkinen.

Joan McLaughlin, who is Student’s academic case manager at Landmark, testified that she is familiar with Student through observation and working with his teachers. She explained the integration and consistency of instruction—for example, the instruction in the daily reading tutorial is supported within Student’s English language arts class through review and practice of what the reading tutor is teaching, with the goal of Student’s being able to generalize a learned skill so that he can use it within context and not only in isolation. Ms. McLaughlin opined that the pace and content of instruction appear to be appropriate for Student, he is engaged within the classroom and participating appropriately, he is showing no signs of anxiety, and he is making good progress. She explained that at Landmark, there are no direct, individual speech-language services as a general rule because Landmark uses a speech-language pathologist who comes into the classroom and consults to the teachers in order to allow the teachers to provide the appropriate speech-language techniques. She noted that if a particular student requires additional, individual speech-language services, this can be arranged but, in her opinion, Student does not need this additional service. Testimony of McLaughlin.

Ms. McLaughlin testified (and the written progress notes reflect) that Student is making effective progress. This progress has occurred in his academic subjects, including gains in reading and spelling skills that Student has been able to generalize, and equally important, the teachers report that he is fully engaged in the learning process at Landmark, he is gaining confidence and increasing his positive (as compared to reliant) self-advocacy, he is improving is organizational skills, and he is meeting the expectations of the school. Testimony of McLaughlin, Armstrong; exhibit P-5.

On March 4, 2011, Dr. Kaufman observed Student in his educational program at Landmark. She did not issue a report, but testified as to what she observed. She observed Student in his reading tutorial, written language class and social studies, and she met with Ms. McLaughlin. Dr. Kaufman testified that what she observed was appropriate instruction for Student. In particular, she found the reading tutorial to provide appropriate instruction, Student appeared to making progress during the class, and he maintained his attention. With respect to the written language class, Dr. Kaufman testified that it was a very good example of the kind of integrated class model that Student needs—that is, the teacher integrated cursive handwriting instruction, written language and reading comprehension instruction. She found that the class to be very structured and to be appropriate for Student. Testimony of Kaufman.

Dr. Kaufman testified that she also found social studies to be appropriate, noting that in social studies, the teacher was working on some of the same skills taught in English language arts class, and that the pace, which was appropriate for Student, was much slower than in a typical 5th grade classroom. She also obtained sufficient information from Ms. McLaughlin to conclude that Student’s math class is likely appropriate for him. Overall, Dr. Kaufman concluded that Landmark provides an appropriate placement for Student because the curriculum content is appropriate for him, the course work is appropriately challenging for Student, the teachers are providing high quality instruction, he is making progress in remediating his learning deficits, and over time he can learn to become an independent learner. She testified that in order to provide an appropriate education for 5th grade, there is, in her opinion, no appropriate option for Student other than Landmark or a similar school. Testimony of Kaufman.

Dr. Armstrong testified that she observed Student at Landmark on March 2, 2011. She testified that, in her opinion, Landmark is appropriate for Student. She explained that at Landmark, all students have the same learning needs, making it possible for Student to feel okay about himself, gain confidence, and thrive on the challenge of learning. She believes that Landmark meets all of Student’s needs by remediating all of his reading, writing and math deficits, by helping him to address his organizational deficits by learning specific organizational strategies, and, as a result, by allowing him to become functionally independent. She noted, in particular, the importance of Landmark’s instruction being at Student’s pace so that he keep up and use his intellect without being lost, and the importance of Landmark’s integrating skill development into all aspects of the curriculum. Testimony of Armstrong.

Mother testified that she believes the Landmark placement has been completely successful, even “life altering” for her son. She explained that he is making academic progress, he is able to understand the assignments and complete all of his homework independently, and he is confident and happy to the point that he does not want to miss a single day of school—in short, he is a different child than the student who attended the Hingham Public Schools. Testimony of Mother.

Hingham witnesses observed Student at Landmark. Ms. Rogg testified that she did not see a multi-sensory teaching approach being used in math and she expressed concern that some of the texts and reading books being used by Landmark were at too low a level and would not be sufficiently challenging for Student. Ms. Cushing testified that, based upon her observation of Landmark, Student is not appropriately matched with his educational strengths. She found the instruction to be very simplistic. She noted that at Hingham, in comparison, Student would be taught a rich curriculum and he would utilize his higher reasoning skills. Testimony of Rogg, Cushing.

Notwithstanding the criticisms by Hingham witnesses, I find that the overwhelming weight of the evidence is that the program of instruction at Landmark is meeting the recommendations of Dr. Kaufman and Dr. Armstrong, that the Landmark program is individually-tailored to meet Student’s unique needs so that he can make meaningful and effective progress particularly in his areas of special education need, and that it is therefore appropriate. For these reasons, I further find Student’s placement at Landmark satisfies the criteria articulated by the Supreme Court and First Circuit (discussed above in the section entitled “FAPE legal standards”) for purposes of reimbursement of a parent’s unilateral placement when a school district’s proposed IEP is found to be inappropriate.

Parents seek reimbursement for their out-of-pocket expenses attributable to Student’s placement at Landmark. Reimbursement is equitable relief and requires consideration of all relevant factors. This inquiry leads me to conclude that Parents should be reimbursed for all of their out-of-pocket expenses (including tuition and transportation costs) for their placement of Student at Landmark for the current school year.

On the basis of the above findings, I further conclude that Student’s Landmark placement satisfies FAPE requirements for purposes of prospective placement because the Landmark program is individually-tailored to meet Student’s unique needs so that he can make meaningful and effective progress particularly in his areas of special education need. Accordingly, Parents are entitled to have the currently-proposed IEP amended to place Student at Landmark prospectively.

ORDER

Prospective claim

 

The IEP most recently proposed by Hingham (which IEP is for the period 10/26/10 to 6/15/11; exhibits S-1, P-6 B) is not reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment. Additions or other modifications cannot be made to the IEP in order to satisfy this standard without an out-of-district placement. Placement at Landmark satisfies this standard. Hingham shall immediately amend this IEP to provide for Student’s placement at Landmark.

Reimbursement claim

The IEP amendment and IEP proposed by Hingham for the 2010-2011 school year (which is the IEP amendment from a June 15, 2010 Team meeting and the IEP for the period 10/26/10 to 6/15/11; exhibits S-1, S-5, P-6 B, P-11 C) were not reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment. Parents’ unilateral placement of Student at Landmark was appropriate. Hingham shall reimburse Parents for their out of pocket expenses attributable to their placement of Student at Landmark, including tuition and travel expenses.

Compensatory and procedural claims

The prior IEPs proposed by Hingham were reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment. Parents’ one claim of procedural violation is barred by the statute of limitations. Parents are not entitled to any compensatory relief.

By the Hearing Officer,

William Crane

Dated: May 2, 2011

COMMONWEALTH OF MASSACHUSETTS

Division of Administrative Law Appeals

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).

 

Compliance

 

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).

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] Accommodations included within the IEP (that were recommended by Dr. Armstrong) included access to a computer, books on CD, scribing as needed, preferred seating, repeating instructions, instructions provided verbally and in writing, using a process approach to writing, and increased organizational supports. Testimony of Cushing; exhibits P-11 C, S-5.

[2] 20 USC 1400 et seq.

[3] MGL c. 71B.

[4] 20 USC § 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A); Mr. I. ex rel. L.I. v. Maine School Admin. Dist. No. 55, 480 F.3d 1, 12 (1st Cir. 2007) (referencing “broad purpose behind the IDEA: ‘to ensure that all children with disabilities have available to them a free and 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’” citing to 20 USC § 1400(d)(1)(A)).

[5] The phrase “least restrictive environment” means that “[t]o the maximum extent appropriate, children with disabilities . . . are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” 20 USC § 1412(a)(5). See also 20 US § 1400(d)(1)(A); 20 USC § 1412(a)(1)(A); MGL c. 71B, s. 1; 34 CFR 300.114(a)(2(i); 603 CMR 28.06(2)(c).

[6] 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.

[7] 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, 484 U.S. at 311 (FAPE must be tailored “to each child’s unique needs”); Rowley, 458 U.S. at 181 (FAPE must be “tailored to the unique needs of the handicapped child by means of an ‘individualized educational program’ (IEP)”); Lessard,, 518 F.3d at 23 (referencing the school district’s “obligation to devise a custom-tailored IEP”); 603 CMR 28.02 (20) (“Special education shall mean specially designed instruction to meet the unique needs of the eligible student or related services necessary to access the general curriculum and shall include the programs and services set forth in state and federal special education law.”).

[8] Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 207 (1982). See also Lessard v. Wilton Lyndeborough Cooperative School Dist., 518 F.3d 18, 23 (1st Cir. 2008) (“IEP must be individually designed to provide educational benefit to [a particular] handicapped child.”) (internal quotations and citations omitted).

[9] Lessard, 518 F.3d at 23 (citations omitted). See also Rowley, 458 U.S. at 197, n.21 (“Whatever Congress meant by an “appropriate” education, it is clear that it did not mean a potential-maximizing education.”).

[10] Lessard, 518 F.3d at 23-24 (internal quotations and citations omitted). See also G.D. v. Westmoreland Sch. Dist., 930 F.2d 942, 948 (1st Cir. 1991) (educational services need not necessarily be “the only appropriate choice, or the choice of certain selected experts, or the child’s parents’ first choice, or even the best choice”).

[11] See Cedar Rapids Community School Dist. v. Garret F. ex rel. Charlene F., 526 U.S. 66, 79 (1999) (IDEA dispute “is about whether meaningful access to the public schools will be assured”); Irving Independent School District v. Tatro, 468 U.S. 883, 891 (1984) (“Congress sought primarily to make public education available to handicapped children and to make such access meaningful”) (internal quotations omitted); Rowley, 458 U.S. at 192 (“in seeking to provide … 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”).

[12] See Murphy v. Timberlane Regional School Dist.  22 F.3d 1186, 1196 (1st Cir. 1994) (referencing IDEA standard of a “federal basic floor of meaningful, beneficial educational opportunity”); Town of Burlington v. Dep’t of Educ., 736 F.2d 773, 789 (1st Cir. 1984) (same), aff’d 471 U.S. 359 (1985); Dracut School Committee v. Bureau of Special Educ. Appeals of the Massachusetts Dept. of Elementary and Secondary Educ., 2010 WL 3504012, at *12 (D.Mass. 2010); (using a meaningful education benefit standard to determine appropriateness of transition services); DB v. Sutton, 07-cv-40191-FDS (D.Mass. 2009) (“meaningful progress … is the hallmark of educational benefit under the [federal] statute”); Hunt v. Bureau of Special Education Appeals, 109 LRP 55771, CA No. 08-10790-RGS (D.Mass. 2009) (“School districts provide a FAPE by designing and implementing an IEP ‘reasonably calculated’ to insure that the child receives meaningful ‘educational benefits’ consistent with the child’s learning potential” citing Rowley). The First Circuit and Massachusetts federal district courts have sometimes articulated a meaningful benefit standard in terms of effective results and demonstrable improvement. 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 (1st Cir. 1993) and Town of Burlington v. Dep’t of Educ., 736 F.2d 773, 788 (1st Cir. 1984), aff’d 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985).

[13] See, e.g., Houston Independent School Dist. v. V.P. ex rel. Juan P., 582 F.3d 576, 583 (5th Cir. 2009) (adopting a meaningful benefit standard); L.E. v. Ramsey Bd. of Educ., 435 F.3d 384, 395 (3rd Cir. 2006) (phrase “some educational benefit”, as utilized by Supreme Court in Rowley, requires provision of a “meaningful educational benefit”); A.B. ex rel. D.B. v. Lawson, 354 F.3d 315, 319 (4th 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 (7th Cir. 2004) (referencing standard of “whether the school district appropriately addressed the child’s needs and provided him with a meaningful education[al] benefit under the substantive prong of Rowley”), cert. denied, 543 U.S. 1009 (2004).

[14] Lessard, 518 F.3d at 29.

[15] Rowley, 458 U.S. at 202.

[16] 20 USC 1401(9)(b); Winkelman v. Parma City School Dist., 550 U.S. 516, 524 (2007) (“education must … meet the standards of the State educational agency”).

[17] Mr. I. v. Maine School Administrative District No. 55, 480 F.3d 1, 11 (1st Cir. 2007) (state may “calibrate its own educational standards, provided it does not set them below the minimum level prescribed by the [IDEA]”).

[18] 603 CMR 28.05 (4) (b).

[19] See IEP form mandated for all Massachusetts school districts by the Massachusetts Department of Elementary and Secondary Education, at pages 2 of 8 and 3 of 8, which may be found at http://www.doe.mass.edu/sped/iep/forms/word/IEP1-8.doc   See also, e.g., exhibits S-1, S-5, S-7, S-9, S-11, S-15, S-17 (describing the specially-designed instruction proposed as “necessary for the student to make effective progress”).

[20] MGL c. 71B, s. 1 (term “special education” defined to mean “educational programs and assignments including, special classes and programs or services designed to develop the educational potential of children with disabilities.”). See also MGL c. 69, s. 1 (“paramount goal of the commonwealth to provide a public education system of sufficient quality to extend to all children the opportunity to reach their full potential”).

[21] 603 CMR 28.01(3).

[22] See Sch. Comm. of Town of Burlington, Mass. v. Dep’t of Educ., 471 U.S. 359, 369-70 (1985) (ordering the reimbursement of parents for the unilateral placement of student in a private school).

[23] Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 13-14 (1993) (private school need not necessarily meet state educational standards or be state-approved, and need not meet federal statutory definition of FAPE); C.B. ex rel. Baquerizo v. Garden Grove Unified School Dist.  2011 LW 1108254, *2 -3 (9th Cir. 2011) (“proper” private placement under the IDEA need not include every necessary educational service); Frank G. v. Bd. of Educ., 459 F.3d 356, 365 (2d. Cir. 2006) (“parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential”);Doe v. West Boylston School Committee, 4 MSER 149, 161 (D.Ma. 1998) (Massachusetts FAPE standards need not be met for private placement to be appropriate).

[24] Id. at 11.

[25] Id. at 12-13. See also Mr. I. v. Maine School Administrative District No. 55, 480 F.3d 1, n.22 (1st Cir. 2007); Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26 (1st Cir.2002).

[26] Mr. I. v. Maine School Administrative District No. 55, 480 F.3d 1, 24, 25 (1st Cir. 2007) (internal quotations and citations omitted; emphasis in original).

[27] See Mr. I., 480 F.3d at 25 (private school was not appropriate since this school, “where [student] has remained for more than two full academic years, simply does not provide the special education services that [student’s] mental health professionals have prescribed”).

[28] E.g., Florence County School District Four v. Carter, 510 U.S. 7, 16 (1993); School Union No. 37 v. Ms. C.
518 F.3d 31, 34 (1st Cir. 2008) (“Reimbursement is an equitable remedy”); Diaz-Fonseca v. Commonwealth of Puerto Rico, 451 F.3d 13 (1st Cir. 2006) (parent’s claim for reimbursement for expenses for private educational services involves an equitable remedy).

[29] 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; a party who has the burden of persuasion “loses if the evidence is closely balanced”).

[30] See Doe ex rel. Doe v. Hampden-Wilbraham Regional School Dist., 715 F.Supp.2d 185, 194-195 (D.Mass. 2010) (“The purpose of this rule is plain; deciding upon which goals and methods to include in any student’s IEP is not an exact science, and allowing parents to second guess IEP decisions after it has expired would only undermine the process of providing students with the educational services they need.”); Independent School District No. 432, Mahnomen School v. J.H., 8 F.Supp.2d 1166, 28 IDELR 427 (D.Minn. 1998) (acceptance of IEP precluded Hearing Officer from considering its appropriateness); In Re: Yale and Upper Cape Cod Regional Technical School and Sandwich Public Schools, BSEA#06-0501 & #06-0808, 11 MSER 200 (2005) (without a showing of lack of notice of parental options and due process rights, lack of meaningful parental participation in the development of the IEP, or any other procedural impropriety, the BSEA does not revisit accepted expired IEPs); In Re: Quabbin, 11 MSER 146 (MA SEA 2005); In Re: Sharon Public Schools, 8 MSER 51, 67 (MA SEA 2002); In Re: Carver Public Schools, 7 MSER 167, 179 (MA SEA 2001).

[31] Roland M. v. Concord Sch. Comm., 910 F.2d 983, 992 (1st Cir. 1990) (internal quotations omitted).

[32] During closing argument, Parents’ attorney made clear that this is the only alleged procedural violation for which Parents seek relief. Parents’ attorney specifically noted that Parents were not seeking relief regarding Hingham’s apparent failure to hold a Team meeting prior to proposing an IEP amendment in March or April 2010. See Facts, par. 32.

[33] See 603 CMR 28.04(5)(f).

[34] 20 USC § 1415(f)(3).

[35] Rivera-Rodriguez v. Frito Lay Snacks Caribbean, 265 F.3d 15, 22 (1st Cir. 2001).

[36] Mother, Student’s 4th grade teacher (Mr. Samarov) and Hingham’s school psychologist (Ms. Cushing) testified that the narrative portions of Dr. Armstrong’s evaluation report accurately portrayed Student’s learning profile. Ms. Cushing also testified that Dr. Armstrong’s report accurately reflected the input (received during a conference call) she received from Ms. Rogg, Mr. Samarov and Ms. Cushing; and Ms. Cushing opined that, in general, she found it to be an excellent report. Testimony of Mother, Samarov, Cushing.

[37] The specific test scores revealed that near the end of 4th grade, word identification skills had decreased from a 3.6 grade equivalency to a 2.8 grade equivalency. Word attack skills had decreased from a 5.5 grade equivalency to a 4.0 grade equivalency. Word comprehension skills had decreased from a 4.4 grade equivalency to a 3.8 grade equivalency. Passage comprehension skills had decreased from a 5.4 grade equivalency to a 4.0 grade equivalency. Importantly, basic skills cluster scores had decreased from a 4.2 grade equivalency to a 3.2 grade equivalency, and reading comprehension cluster scores had decreased from a 5.0 grade equivalency to a 3.9 grade equivalency. The total reading cluster scores had decreased from a 4.5 grade equivalency to a 3.5 grade equivalency. Testimony of Armstrong; exhibit P-11 D.

[38] Dr. Armstrong’s concerns are cogently and clearly articulated within the following passage from her evaluation report:

At this point it is critical to emphasize that despite having received intensive and tailored academic supports over the past year, [Student] has not learned adequate decoding skills that are automatized enough for him to use in his regular day-to-day use. Instead, and despite his strong cognitive ability, he is reliant on his incomplete site word vocabulary, and other compensatory mechanisms. Furthermore, testing data shows that [Student’s] ability to read nonwords (which will map on his ability to decode unfamiliar/novel words) is still at a 2nd – 3rd grade level (depending on the test). Consequently, the gap between his reading skills and those of his classmates has increased over time, rather than decreased. This indicates with some degree of certainty that [Student] has a particularly severe dyslexia that requires an intensive intervention program that can emphasize language-based teaching strategies throughout his academic curriculum. Importantly, without such intervention, research suggests that he is at an exceptional risk for having a lifelong disability characterized by reading, spelling and writing deficits. [Exhibit P-11 D (page 10) emphasis in original.]

[39] Lessard, 518 F.3d at 29.

[40] For example, in her written observation report of 5th grade, Dr. Kaufman explained: “there are elements in this inclusion model that would make it difficult, if not impossible, for [Student] to access the curriculum and to learn.” More specifically, she found that it would be “difficult for him to keep up with his peers” in social studies and science. She noted further that both classroom reading groups appeared to be reading at a level above Student’s skill level and would likely provide “inappropriate reading instruction” for Student. She also opined that the half-hour Wilson reading group was “far too short a period to meet [Student’s] needs for reading instruction. According to Dr. Kaufman, the teacher was unable to address the full scope of the Wilson teaching paradigm in such a short period of time.” Exhibit P-6, page 4.

Dr. Kaufman also noted that, as in 4th grade, Student would receive three different modalities of reading instruction—that is, Orton Gillingham through 1:1 instruction, Wilson reading program in small group instruction, and English language arts instruction in the regular education classroom. Dr. Kaufman testified that although Orton Gillingham and Wilson are both phonetic programs using scope and sequencing, they utilize very different sequencing. The same special education teacher provides the Orton Gillingham and Wilson instruction, thus allowing for coordination, but Dr. Kaufman testified persuasively that the utilization of three different methodologies confuses and diminishes the effectiveness of reading instruction for Student. Testimony of Kaufman; exhibits P-6, P-11 G.

Hingham’s Literacy Specialist (Ms. Robinson) testified that, in her opinion, it was appropriate to use the Wilson small group to support and practice what Student learned in his 1:1 Orton Gillingham instruction, but Ms. Robinson does not know Student through observation or evaluation. I did not find that her testimony successfully rebutted Dr. Kaufman’s opinion that this combination of instruction has not been effective for Student in the past and would likely continue to be ineffective in 5th grade. Testimony of Robinson.

[41] Dr. Armstrong’s written evaluation provided recommendations for improving the pull-out model being utilized by Hingham. From this, Hingham has sought to argue that Dr. Armstrong’s recommendations support its proposed 5th grade IEP. However, a close reading of her report leaves no doubt that she did not recommend a continuation of this educational model. Rather, she explained ways of improving the pull-out model in the event that Hingham declined to move Student to an out-of-district, language-based program. Hingham’s IEP Team chair (Ms. Cushing) supported this understanding of Dr. Armstrong’s recommendations. Ms. Cushing testified that during the June 15, 2010 IEP Team meeting that was held for the purpose of considering Dr. Armstrong’s report and recommendations, Dr. Armstrong made clear her recommendation that Student not be further educated within a pull-out model of instruction.

[42] A number of the deficiencies in the 5th grade proposed program were deemed workable or correctable by Dr. Kaufman during her observation of 4th grade. Yet, what shifted for Dr. Kaufman was that, over time, Student demonstrated an inability to navigate an educational program that was not tailored to his pace and level of instruction, and was unable to gain sufficient benefit from special education services that were provided through inconsistent reading instruction in a pull-out model. She ultimately concluded that Hingham’s proposed program was not appropriate and could not be improved sufficiently in order to be made appropriate for 5th grade. Testimony of Kaufman.

[43] Roland M. v. Concord Sch. Comm., 910 F.2d 983, 992 (1st Cir. 1990) (internal quotations omitted).

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