DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Student v. Arlington Public Schools
BSEA# 25-03543
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 before Hearing Officer Alina Kantor Nir on November 14, 15 and 18, 2024. The first day of Hearing was open to the public, at Parents’ request, and took place at the office of the Bureau of Special Education Appeals (BSEA). At the close of the first day of Hearing, Parents decided to have the remaining two days of Hearing held via a virtual format and to close the hearing to the public. As such, the remaining two days were held via Zoom and were not open to the public. Parents were pro se. Arlington Public Schools (Arlington or the District) was represented by counsel. Those present for all or part of the proceedings were:
Parents
Alison Elmer Assistant Superintendent for Student Services, Arlington
Chris Carlson Special Education Coordinator, Arlington
Doreen Crowe Director of Nursing Services, Arlington
Eileen Delory Special Education Teacher, Arlington
Jenny Loop Social Worker, Arlington
Kelly O’Toole Reading Specialist, Arlington
Thad Dingman Principal, Dallin Elementary School, Arlington
Samantha Karustis Assistant Principal, Dallin Elementary School, Arlington
Katie Meinelt Attorney for Arlington
Melissa Lupo Court Reporter
Pasieu Robles Court Reporter
Rebecca Baron Court Reporter
The official record of the hearing consists of documents submitted by Parents and marked as Exhibits P1-2 through P1-4; P1-6 through P1-26[1]; P1-27 through P1-32; P1-44; P2-1D; P2-2; P2-5 through P2-8; documents submitted by Arlington and marked as Exhibits S-1 to S-23; approximately 3 days of oral testimony and argument; and a 3-volume transcript produced by a court reporter. A transcript of the proceedings was sent to the Parties, and pursuant to a joint extension request, which was allowed by the Hearing Officer, the record remained open until December 13, 2024 for submission of written closing arguments.
ISSUES IN DISPUTE:
The following issues are in dispute:
- Whether Arlington Public Schools violated Student’s rights under IDEA and MGL c. 71B by failing to find Student eligible prior to February 2023;
- Whether Arlington Public Schools violated Student’s rights under IDEA and MGL c. 71B by failing to propose IEPs and placements during the period of February 2023 until the filing of the complaint that were/are reasonably calculated to provide Student with a FAPE.
FACTUAL FINDINGS[2]:
- Student is a 4th-grade resident of Arlington, Massachusetts, who was unilaterally placed by Parents at Carroll School (Carroll) for the 2024-2025 school year (Mother, S-6). Prior to attending Carroll, Student attended Dallin Elementary School (Dallin) in Arlington, Massachusetts, in a full inclusion program, eligible for special education and related services under the Disability Categories of Specific Learning Disability (Reading) and Health. (Mother, Dingman, P1-1, S-5) She is diagnosed with Dyslexia and Type One Diabetes (T1D). (Mother, S-5) Student is hardworking and curious. (O’Toole, Delory)
- During the COVID-19 pandemic, Parent[3] homeschooled Student for her kindergarten year utilizing Fundations. (Mother, S-23) Parent is not a teacher, holds no teaching licenses, special education, or Wilson Reading System certifications, is not trained in the Dynamic Indicators of Basic Early Literacy Skills (DIBELS)[4] or RAVE-O[5], and has never formally observed Student at Dallin. (Mother)
- Kelly O’Toole is a licensed reading specialist who has worked in that capacity at Arlington since 2009. In this role, she provides targeted reading instruction and conducts literacy screenings, participates in the progress monitoring team, and collaborates with general education and special education teachers. Ms. O’Toole has extensive education, training, and experience working with students with Dyslexia. She began working with Student during Student’s first-grade year, providing Student with intensive, small-group reading intervention focused on phonics and sight words five times per week. Ms. O’Toole “flagged” Student in September 2022 when her DIBELS scores demonstrated lingering challenges. (O’Toole, Dingman, P1-12, P1-13, P1-44, P2-1, S-13, S-16)
- Thad Dingman is the principal of Dallin. He has served in this role for 11 years. According to Mr. Dingman, Dallin administers fall literacy assessments/benchmarks using the DIBELS assessment tools and screeners to identify students who require additional interventions. Student groupings are then based on this assessment data. Mr. Dingman and Ms. O’Toole were monitoring Student and intended to contact Parents regarding possible testing if she did not make progress during the first 6-8 weeks of school in the 2022-2023 school year. (Dingman)
- Parent testified that she had shared their family history of Dyslexia with Ms. O’Toole during the Student’s first-grade year. In addition, in September 2022, Parent shared this information and her concerns with Student’s teacher at pick-up. (Mother)
- On October 26, 2022, Ms. O’Toole informed Parent that Student’s DIBELS scores continued to demonstrate difficulty. (O’Toole, P1-12, P1-13, S-16) On November 12, 2022,[6] Parent responded that Student was “not making significant progress in closing her reading gap” and asked, “At what point do you decide to evaluate her?” (S-16) Ms. O’Toole proposed a meeting to review the data and to come to an agreement that additional testing was necessary. Ms. O’Toole had shared her concerns with Mr. Dingman and Mr. Carlson. (Dingman, O’Toole, S-16)
- Both Ms. O’Toole and Mr. Dingman testified that they would never make a referral for special education without first talking to the parent. (O’Toole, Dingman)
- On November 18, 2022, Parents met with Ms. O’Toole and shared their own family history of Dyslexia. Ms. O’Toole testified that this was her first time hearing this information which she found “important.” (O’Toole, S-18) Via email on the same day, Parent requested an initial special education evaluation for Student. (Mother, P1-3, P1-14, S-16)
- On November 23, 2022, the District provided Parents with a consent to evaluate (including an Educational Assessment, Psychological Assessment, Academic Assessment, Articulation Assessment, and Observation) which Parent signed and returned on November 28, 2022. (P2-1)
- Arlington continued to provide Student with reading interventions during the testing period. (Dingman)
- On February 1, 2023, the Team convened for an initial Team meeting. (P1-1, P1-15, S-1) The Team reviewed Student’s assessments.
Student’s general education teacher completed Educational Assessment: Part A and Part B, noting that Student was progressing in math, science, and social studies but was below grade level in reading and writing. Student had strong phonological awareness skills and very strong comprehension skills. She was making progress on the DIBELS word reading fluency subtest, but she continued to be well below benchmark and demonstrated poor scores on the Rapid Automatic Naming assessment (RAN). Student was not automatic in decoding words with blends and words with “b” and “d”, and her reading challenges were beginning to impact her ability to complete tasks independently in other academic areas. (O’Toole, P1-1, P1-15, P2-2, S-1, S-10)
The results of Student’s Psycho-Educational Evaluation revealed a strong cognitive profile in the domains of language, problem-solving, and working memory. Student’s cognitive abilities ranged from the Extremely High range for Verbal Comprehension to the Average range for Visual Spatial and Processing Speed areas. On reading assessments, Student showed some vulnerabilities. Specifically, on the RAN, she scored in the Poor range for rapid naming. On the CTOPP-2, she scored in the Average range for Elision and Phonemic Isolation and Above Average range for Blending Words. However, on timed tasks at the word level, she scored in the Below Average range on Sight Word Efficiency, Phonemic Decoding Efficiency, and at the Connected Text level. Student scored below the average range for Oral Reading Fluency. Her scores in math and writing were in the Average range. Student’s BASC scores were elevated for anxiety as Student could be self-critical when making mistakes. Several accommodations were recommended. (P2-2, S-10)
Student’s Speech and Language Evaluation revealed inconsistent articulation challenges, which were not apparent in conversation, during which her intelligibility was 100%. (P2-2, S-10) Articulation therapy as Response to Intervention (RTI) was recommended. (P1-16, S-1)
- Parents were satisfied with the initial evaluation and agreed with the results. (Mother, P1-14, S-1)
- The Team found Student eligible pursuant to a Specific Learning Disability (Reading) category and proposed an IEP for the period 2/1/23 to 1/31/24 with a full inclusion placement, a Reading Goal focused on reading fluency (hereinafter, the February 2023 IEP), several accommodations (i.e., access to audio books for math), a “systemic, strategic reading fluency program that integrate[d] instruction across all aspects of work knowledge,” a “systematic, direct, multi-sensory phonics reading curriculum”, Consult Academic Support (1x15minutes/month), Direct Instruction Reading (5×30 minutes/5 day cycle), and Extended School Year (ESY). (O’Toole, Mother, P1-1, P1-14, P1-17, S-1)
- Ms. O’Toole testified that she contributed to the development of Student’s Reading Goal which was based on Student’s then-current performance levels, assessments, and Parents’ input. In response to Parents’ concerns that the IEP goal was not aligned to grade-level standards, Ms. O’Toole testified that grade-level standards are reported on report cards, but IEP goals are meant to address specific skill deficits to allow a student to access grade-level content. She believes that Student’s Reading Goal was ambitious, challenging, and measurable. It targeted what Student needed, providing her with explicit instruction time without having her miss too much time in general education. (O’Toole, S-1)
- According to Ms. O’Toole, Student’s biggest skill deficit was rapid automatic naming. Remediation requires a multi-component reading program that includes all parts of word knowledge. Ms. O’Toole proposed the RAVE-O reading program which could be done in 45- or 30-minute increments. (O’Toole, P1-3, P1-14, P1-16) Parents’ research suggested that Student required 5×60 minutes of RAVE-O, not the 5×30 recommended for services in Student’s IEP, and the program needed to be complemented by phonics instruction. (Mother, O’Toole, P1-3, P1-14, P1-16)
- Parent did not feel that her concerns were heard at the Team meeting. She wanted Student to receive 5×60 minutes of Orton Gillingham as this was the recommendation in the Student Handbook for students who, despite intervention, were not closing the gap. (Mother)
- On February 15, 2023, Parents rejected the IEP in full and requested a meeting. According to Parent, she was advised by the Team Chair that in order to advocate for Student, Parents needed first to reject the IEP. (Mother, Carlson, P1-2, P1-15, P1-17) Parents’ rejection letter, dated March 3, 2023, noted that their primary concern was Student’s lack of response to interventions. They requested multiple revisions to the IEP, including the Parents’ Concerns, Key Evaluation Results Summary, Student’s Current Performance Levels, the goal and benchmarks, and the service delivery grid. (Mother, P1-1, P1-2, P1-3, P1-18, S-1)
- The Team reconvened on March 8, 2023 to discuss the rejected IEP. Parents expressed concern about Student’s rate of progress and characterized her Reading Goal as “too easy” and that it should align with grade-level benchmarks. (Mother, P1-4, P1-19, P1-21, P-1-23, S-2)
- Members of the school-based Team reported that they expected a slower rate of progress for a child with Student’s profile, but no data was yet available relative to Student’s rate of progress as her special education services had not yet begun. (P1-18, S-2)
- The District issued a revised IEP on March 20, 2023 and again on March 22, 2023, incorporating many of Parents’ requested changes, including amending Parents’ Concerns, Key Evaluation Summary, the Current Performance Level, the Reading Goal, three of the benchmarks, and the C-Grid reading service (increased to 5×40 minutes/5 day cycle). A progress monitoring meeting was scheduled to take place in June 2023 to assess progress. (O’Toole, P1-4, P1-20, P1-21, P-1-22, S-2)
- According to Parent, this level of reading service was still insufficient. (Mother, P1-22) Parent referenced the Arlington Public Schools’ 2022-2023 Elementary Handbook which stated that
“Tier III is the most intensive level of intervention for students who are performing at least one grade level below expectations AND have already received Tier II/II.5 or another similar level of comprehensive instruction and intervention without showing sufficient progress in reading achievement. This level of intervention occurs 5 times per week for 60 minutes in addition to classroom reading instruction. Students will receive daily instruction in Wilson/OG/Fundations. Part of each session will also be devoted to fluency and reading comprehension.”
According to Parent, Student satisfied this criteria. (Mother, P1-22)
- The February 2023 IEP, as revised, listed the methodology as “a systematic, strategic reading fluency program that integrates instruction across all aspects of word knowledge” and a “systematic, direct, multi-sensory reading curriculum.” (S-2) Ms. O’Toole testified that even though Student’s methodology did not mention phonics specifically, phonics was part of “systemic, strategic reading fluency program that integrates instruction across all aspects of work knowledge.” (O’Toole, S-2) Student did not require specially designed instruction in the area of phonics, and Ms. O’Toole testified that Student continued to receive phonics instruction in general education after she was found eligible for special education. She also continued to work on sight words using the Kilpatrick program. (O’Toole, P1-4, P1-19, P1-21, P-1-23, S-2) Based on Student’s progress and ability to access general education, Ms. O’Toole did not believe Student required 5×60 minutes of pull-out services. (O’Toole)
- Arlington and Parents exchanged numerous emails in March 2023 regarding changes that Parents requested to the IEP. Parents continued to be dissatisfied, and the District agreed to make several changes administratively. (P1-21, S-18)
- Via email dated March 13 and March 21, 2023, Parents continued to express concerns regarding how data would be measured and reported on in the IEP. They did “not accept portions of the IEP including but not limited to the service delivery.” (P1-22, S-18) Parent testified that she herself was not sure if she ever accepted the services outlined in the February 2023 IEP and whether the services were ever implemented in 2nd grade. (Mother, S-19)
- On March 23, 2023, Parents wrote to the District disagreeing that Student did not require specially designed instruction in phonics and reiterated that Student required 5×60 minutes, as she was performing below grade level and had already had Tier II intervention for more than one year. (P1-23)
- On March 27, 2023, Parents rejected the IEP, in part, but accepted the placement. They continued to reject the fact that the Student’s goal was not aligned with third grade benchmarks. Parents accepted the ESY services but continued to reject 5×40 minutes of direct reading instruction. (P1-4, P1-19, P1-21, P-1-23, S-2)
- Based on the description of the services offered to the Student as part of her IEP, Parents felt that they were no different from what the Student had as a general education student, and this was not the “intensification of services” that Student needed to make progress. Student was still attending the same group she had attended in October 2022 with the same two students[7], and she still received 5×30 minutes intervention with Ms. O’Toole as she had prior to eligibility. In addition, not all the students in the group had IEPs.(Mother)
- Ms. O’Toole confirmed that Student participated in a reading group with the same two students during the 2022-2023 school year. (O’Toole)
- According to Mr. Dingman, it is possible that students with IEPs and without would be grouped together for services, and it is possible for C Grid services to be offered to special education students together with general education students. (Dingman)
- During this time, Student continued to access the “Walk to Read” general education intervention for reading in a small group.[8] (P1-25, S-3)
- On May 19, 2023, the Team convened to discuss Student’s progress. (P1-23, P1-25)
- Student’s data was shared with Parents prior to the meeting. Student made significant progress on many of the DIBELS subtests and was at or approaching the Benchmark Goals for many of them. She could read 90% of second-grade high-frequency words. The classroom teacher had witnessed “significant progress” in ELA. Student’s confidence and engagement across academics and social relationships were in “a great space.” She was happy to come to school, had many friends, and was willing to seek support from adults. She was at the second-grade level benchmarks for math and was meeting benchmarks in science and social studies. After reviewing the data and hearing the Team’s input, the school-based Team did not support amendment of the reading goal or the services. (O’Toole, P1-23, P1-26, S-3, S-13)
- According to Parents, Student struggled to want to attend school, and her stress and anxiety were impacting the entire family. (S-3) They questioned the DIBELS progress data, finding it “unpersuasive.” Parent felt that if Student continued at her rate of progress on the DIBELS, she would not meet her IEP goal by the end of the IEP period. (Mother, O’Toole, Dingman, P1-24, S-3) Parent was also concerned about Student’s handwriting, written expression, and the absence of “functional reading goals.” (Mother, P1-24)
- On June 11, 2023, in a communication to Parents, Student’s teacher noted that Student had “made so much improvement social/emotionally and across all academic areas… [and] marked improvement in her writing….” Student was presenting as “a very joyful, confident & engaged learner.” (P1-26)
- Student’s report card and progress reports for the latter part of 2022-2023 school year showed progress on her Reading Goal. On June 20, 2023, her Letter Sound score was “only 3 letter sounds below the end of year benchmark for 2nd grade. Her whole word reading score [met] the benchmark for end of 2nd grade.” On her other objectives, Student was more than half way to meeting her goal. (O’Toole, Dingman, P1-22, P1-24, P2-2, S-11, S-12, S-13, S-14)
- Pointing to Student’s DIBELS progress and her work samples, Parents disputed that Student made progress, insisting that the District had “lower[ed] expectations for [Student] [and] characterized [this] as ‘effective progress.’” (P1-24, P1-26)
- Ms. O’Toole is trained in the DIBELS and conducts “hundreds” of DIBEL assessments each year. She testified that she did not “calibrate” the DIBELS. Although the DIBELS may be influenced by “background knowledge,” that is unlikely to have impacted Student’s scores when looking at Student’s “trend.” (O’Toole)
- Student did not attend ESY during the summer of 2023.[9] (Mother, S-11)
- During the summer of 2023, Student was diagnosed with T1D. [10] (Mother)
- On August 16, 2023, Parents informed the school nurse at Dallin of Student’s T1D diagnosis. Parents provided the District with a Diabetes School Order from Boston Children’s Hospital’s Diabetes Nurse Educator, Elizabeth (Beth) Farmer.[11] The school nurse assured Parents of her experience with T1D. The nurse planned to meet with Parents on August 28, and she informed Mr. Dingman of Student’s diagnosis. (P2-5) According to Mr. Dingman, it was not unusual for a school nurse to care for multiple students with T1D, and in his 11 years at Dallin, there has always been at least one student with T1D during every school year. (Dingman) During the 2023-2024 school year, there were three students, including Student, with T1D at Dallin. (P2-5)
- Doreen Crowe is the Director of Nursing Services for Arlington. She has served in this role for 3 years.[12] Ms. Crowe holds a license from the Department of Elementary and Secondary Education (DESE) and has been a registered nurse for 40 years, during which time she has earned several commendations. She testified that all nurses at Arlington are trained in T1D and triage. The nurse at Dallin was a registered nurse and a nurse practitioner and had extensive experience dealing with T1D. (Crowe)
- Mr. Dingman is the 504 Coordinator for Dallin. (Dingman) He informed Parent on August 29, 2024 that the Team would develop a 504 Plan independent from Student’s IEP as this was the school’s practice.[13] (Dingman, P1-29, P2-5)
- Parent testified that she anticipated problems with the 504 Plan. (Mother, P2-5)
- On August 31, 2023, a Section 504 Plan was developed for Student in consultation with the family and Boston Children’s Hospital. (Crowe, Dingman, Mother, P1-29, P1-30, P1-31, P1-32, P2-5, S-12)
- As part of the 504 Plan, a school nurse was to be available in the building at all times when the Student was physically in the building, and Student had access to her as needed. Any staff member who had primary care for Student at any time during school hours was to receive training on diabetes and the signs that needed to be monitored. Substitute teachers and nurses were to have access to Student’s Individual Health Care Plan and Diabetes Emergency Plan as well. Student was allowed to use her smartphone to monitor her glucose at any time. Student had access to a school counselor as needed. Teachers supervising recess and gym needed to have access to quick acting glucose. Student was not to be left alone when experiencing signs of hypoglycemia/hyperglycemia. Parents were to be available throughout the school day for consultation. Parents were to be notified immediately of symptoms of severe low blood sugar, if blood glucose test results were below fifty-five, or were below seventy for fifteen minutes after consuming fifteen grams of quick-acting carbohydrates, if there were symptoms of high blood sugar (such as rage, frequent urination, presence of ketones, vomiting, or blood glucose level above three hundred), if Student refused to take insulin, or if the insulin pump malfunctioned. (Crowe, P1-29, P1-30, P1-31, P1-32, P2-5, S-12)
- Ms. Crowe testified that Section 504 Plans and Individualized Health Care Plans (IHCP) must be followed 100% of the time. According to Ms. Crowe, Student’s 504 Plan was one of the best she had ever seen. (Crowe)
- Mr. Dingman testified that Student’s 504 Plan was “signed and ready to go” on the first day of school. It was shared with school specialists and Student’s service delivery team and would be reviewed with them directly. (Dingman, P1-30, P1-31, P2-5) Student’s Continuous Glucose Monitor (CGM) at school was connected to the school nurse’s iPad. (Crowe, Mothe, P2-5)
- Parent was very concerned about Dallin’s handling of Student’s T1D. (Mother) In September 2023, during the first 4 days of school, Parents needed to “intervene” in response to Student’s “dangerous blood sugar drops” at school. In response to Parents’ concerns, the District provided additional nursing support, created a staggered schedule for lunch, and teachers were instructed to set alarms to ensure that Student got to the nurse on time for her insulin. (Mother, Crowe, P2-5, S-17) Ms. Crowe testified that it takes some time at the start of the school year to establish routines. (Crowe)
- On September 5, 2025, Parent asked Ms. Farmer for an insulin pump for Student. (Mother, S-17) Parent believed Ms. Farmer was concerned about Dallin’s handling of Student’s T1D and thus “expedited” the pump, but the pump was in fact instigated at Parents’ request. (Mother, S-17) According to Ms. Farmer’s communication, a new school year is always a challenge. (S-17)
- On September 21, 2024, Ms. Crowe participated in a call with Parents, the Dallin nurses, and Ms. Farmer to discuss Parents’ concerns regarding “systems” at Dallin. (Mother, Crowe) Subsequently, Parent informed Ms. Farmer that “things [were] better with the school…after we met….” (P2-5)
- Mr. Dingman had no concerns about the school nurse’s ability to implement the 504 Plan. The school nurse did not raise any concerns to him. (Dingman)
- Ms. O’Toole testified that Student suffered “big summer losses.” (O’Toole, P1-35, S-4, S-13) For the 2023-2024 school year, Ms. O’Toole introduced the Wilson Reading System, in which she is trained and certified. (O’Toole, P1-33)
- On October 6, 2023, Parent contacted Christopher Carlson, the Special Education Coordinator for Dallin, requesting a reconvene of the Team to discuss the impact of Student’s T1D on her learning. (Mother, P1-32)
- On November 8, 2023, the Team reconvened for a progress update and added Health as a disability category in Student’s IEP. (Carlson, P1-6, P1-36, S-4) The nurse stayed for only a portion of the meeting and did not report on Student’s T1D. (Mother, S-4) Parents continued to express that Student required more intense services to bring her to grade level, that reading was becoming a barrier to math, and that Student had negative feelings about school. (Mother, P1-6, P1-36, S-4) Mr. Dingman suggested that the Team look into the collaboration between Dallin and the Arlington Youth Counseling Center (AYCC) for a possible consultation. (Dingman, Mother, P1-6, P1-36, S-4) Student’s service providers continued to report progress based on the PAST phonological awareness screener, Wilson and RAVO-O. The Team amended Student’s Reading Goal to reflect new benchmarks.” The Team added Read Naturally as an intervention. (O’Toole, S-4)
- Eileen Delory is Student’s special education teacher. She has extensive education, training, and experience working with students with Dyslexia. Ms. Delory met Student in September 2023. (Delory) At the November 2023 Team meeting, Ms. Delory proposed inclusion services for Student. The addition of inclusion services offered Student more support, while keeping her in the general education setting. It was also an attempt to work with Parents. (Delory, S-4, S-18)
- The Team added a Written Expression Goal in the area of sentence structure, encoding (spelling) learned phonics patterns, and writing conventions beyond her current level. Benchmarks targeted writing complete sentences, spelling, editing for capitalization, punctuation, and spelling. Inclusion support (5×30 minutes per week) was proposed to support both the goal and Student’s generalization of reading skills. (Delory, P1-6, P1-36, S-4) The Team noted that an Assistive Technology consultation would support access and integration of accommodations across content areas by targeting the whole class to avoid making Student feel “other.” (Delory, P1-6, P1-36, S-4)
- Via email dated November 27, 2023, Parents agreed to B-Grid services. (S-18) According to Ms. Delory, Student was grouped with academically appropriate peers. (Delory, S-18) On same date, the school nurse shared with Parents Student’s Individual Health Care Plan (IHCP). (P2-5)
- On December 6, 2023, Parents partially rejected the IEP, stating the same concerns as before. They were confused as to how the B-Grid service differed from prior general education intervention. (Mother, P1-7, P1-8, S-4)
- According to Student’s December 2023 Progress Report, Student made significant progress on the reading goal. She could now apply learned phonics concepts with efficiency; her DIBELS scores in nonsense word reading fluency and word reading fluency met the middle of the year benchmarks for third grade; and she made progress in her oral reading fluency. (S-11)
- On January 24, 2024, the Team convened and proposed an annual IEP for the period 1/24/2024 to 1/23/2025 (hereinafter, the January 2024 IEP), with full inclusion placement. Parents continued to voice concerns regarding Student’s progress and the implementation of her accommodations. Student’s service providers reported significant growth and progress on the Wilson and RAVO-O assessments. Student had improved in her letter formation, self-editing, appropriate punctuation and capitalization, and sentence structure. She still had some “run ons” which was typical for third grade. Student’s Dyslexia did not impede her ability to read in context, and she was able to leverage her strengths to compensate for her disabilities. (O’Toole, Delory, P1-8, P1-9, P1-37, P1-39, P1-40, S-5)
- The Team added a weekly consult between the special education and general education teacher (1×15 minute) to the service delivery grid and updated the reading and writing current levels of performance and the disability impact statement, noting the impact of Student’s T1D on her work completion, concentration, and social-emotional functioning. The proposed methodology included a “systemic, strategic reading fluency program that integrates instruction across all aspects of work knowledge” and a “systematic, direct, multi-sensory phonics reading curriculum.” The Team agreed that “provided the direct instruction proposed in the IEP, it was anticipated that Student would meet grade level oral reading fluency benchmarks by the next year.” (P1-8, P1-9, P1-37, P1-39, P1-40, S-5) The Additional Information section provided for data sharing with Parents every eight weeks. (Delory, S-5)
- Based on several emails from Parent, Mr. Carlson amended Parents’ Concerns and the Key Evaluation Summary and revised the reading and written expression goals and objectives. The January 2024 IEP was reissued in February and again on March 11, 2024. (P1-8, P1-9, P1-39, P1-40, S-5) According to Mr. Carlson, Student’s goals and objectives were based on assessment results and input from Team members. For example, the Wilson Assessment of Decoding and Encoding (WADE) was used to determine Student’s phonics instruction. (P-10, P1-39, S-18)
- Ms. Delory considered data and Parents’ input when drafting the goals for Student. She worked with Parents to revise the goals to their satisfaction. She testified that the goals were “very ambitious,” aiming for Student to reach end-of-third-grade benchmarks on a timed measure of oral accuracy. The writing goal was equally ambitious. Student’s IEP goals were designed to allow her to access grade-level standards. (Delory, S-5, S-18)
- Ms. O’Toole found the January 2024 IEP appropriate as it offered all the interventions that Student needed to address her skill deficits, and provided for inclusion services, which was an important component of Student’s program because it allowed her to collaborate with peers. (O’Toole)
- In Parent’s opinion, Student’s goals were aligned with first and second-grade, not third-grade, curricula and were based not on Student’s needs but rather on the curriculum available to the District. (Mother, S-18)
- Parent testified that there were several objectives that were not reported on in progress reports, and they appeared again in the IEP proposed in March 2024. Parent also conceded that she had rejected these objectives previously. (Mother, S-4, S-5)
- In January 2024, Ms. Delory consulted with Arlington’s assistive technology specialist and led classroom-wide lessons to provide Student with opportunities to use these accommodations. She also consulted with the District’s math coach. Student was not motivated to use assistive technology because her skill deficit did not impact her ability to work independently in the classroom. (Carlson, Delory, S-18)
- In January 2024, Parents began to look into placement for Student at Carroll. (P1-28, P1-38) Parents selected Carroll after significant research into placements. Ms. Farmer endorsed the Carroll nursing Team. (Mother)
- Jenny Loop is a social worker at Dallin. Ms. Loop was not part of Student’s Team, had not attended any Team meetings for Student, and had not observed Student at school. (Loop) Parent contacted her in January 2024 because she felt the school refused to acknowledge Student’s social-emotional “turmoil.” and she wanted Ms. Loop to facilitate a conversation with the Student’s Team (Mother) Parent and Ms. Loop discussed strategies for school refusal, even though the school had not seen any signs of this and had no concerns. (Loop) School staff testified that Student was comfortable, happy, and social. (O’Toole, Delory) Ms. Loop did not refer Student to AYCC, as Student did not have the type of barriers that would allow her such access. (Loop)
- In March 2024, Parents continued to have concerns and “trust issues” with the school nurses’ handling of Student’s T1D and relayed as much to Ms. Crowe who reviewed processes with the school nurses. (Mother, Crowe, P2-5, S-21) Student was “very concerned about dying at school” and felt “ostracized” by her diagnosis. Student’s blood glucose was often “inexplicably high” at school, making her unavailable for learning. Parent was also concerned about the impact of Student’s Dyslexia on her ability to manage T1D as Student “switched” numbers when entering carbohydrate information into the CGM. (Mother, P-10, P1-39, P1-41, S-18)
- Throughout March 2024, Ms. Delory worked with Parents to revise the IEP goals which they felt were not sufficiently ambitious “according to independent Wilson practitioners with whom [Parents] consulted.”[14] (Mother, Delory, P1-10, P1-39, S-18)
- Student’s March 2024 Progress Report notes progress on old goals, as the January 2024 IEP (as amended) had not yet been accepted or rejected. (S-11) Data was provided to Parents, even on goals that the Parents did not accept. (Delory)
- On April 22, 2024, Parents rejected the January 2024 IEP, as amended. (Carlson, S-5) Parents were applying to Carroll and intended that Student attend there if admitted. (S-19)
- The Team did not reconvene after Parents rejected the January 2024 IEP. (Carlson)
- Throughout the 2023-2024 school year, the school nurses communicated with Parents numerous times throughout the school day. (P2-6, P2-7) This high level of communication is “typical” in these cases. According to Ms. Crowe, Student was never in danger at school; she was cared for and safe. (Crowe, S-21)
- Student met expectations in both Mathematics and English Language Arts MCAS examination in the spring of her 3rd grade. According to Mr. Dingman, the only accommodation accessed by Student, not available universally, was the read-aloud on the Math MCAS. (Dingman, S-15)
- At some point during the 2023-2024 school year, Student was accepted to Carroll. On May 28, 2024, Parents provided Carroll with a nonrefundable deposit. Additional payments were made to Carroll on June 3, June 21, August 13, and September 4. Parent testified that Carroll offered them “flexibility” if Parents “work[ed] things out” with the school. This is not reflected in Parents’ contract with Carroll. (Mother, S-7)
- At Parents’ request, on May 30, 2024, Tim DeLuca, PhD, CCC-SLP, observed Student’s program at Dallin. He found the program lacking in unified, evidence-based practices for children with language-based disabilities. He recommended placement in an intensive, integrated educational program where Student could receive small group specialized language-based instruction throughout the day. Although Student also underwent a private Oral and Written Language Evaluation at Boston University, during which time Parent informed the private evaluator that Student would be attending Carroll in the fall. (Mother, P2-9, S-19, S-22, S-23) Parent testified she did not share these reports with the Team because of her “lack of trust” with the school. (Mother)
- On June 3, 2024, Parents submitted a letter to Mr. Dingman and Mr. Carlson indicating that Student was accepted to Carroll (hereinafter, the June 2024 Letter). They requested, in part, that the District place Student at Carroll, indicating too that Student would “remain a public school student in the Arlington district despite her out-of-district placement”; if the District rejected their proposal, they reserved the right to seek tuition reimbursement. (P1-42, S-5, S-6)
- According to Parents, the June 2024 Letter was not a Notice of Unliteral Placement but rather their proposal, as Team members, that the Team consider an out-of-district (OOD) placement for Student. Parent testified that she would have accepted more intensive services at Dallin at that time. (Mother)
- The District understood the June 2024 Letter to be a Notice of Unilateral Placement. (Dingman, Carlson) Mr. Carlson informed Alison Elmer, Assistant Superintendent of Student Services, of the June 2024 letter as is his practice in cases of unilateral placement. (Carlson) On June 6, 2024, Ms. Elmer denied Parents’ request for funding and suggested a meeting. (P1-42, S-6) According to Mr. Carlson, Ms. Elmer’s email was a “standard” response to a notice of unilateral placement. (Carlson) The Team did not convene because it was June. (Carlson)
- On June 9, 2024, Parent emailed the school nurse that Student would be attending Carroll the following year. (P2-5)
- According to Student’s 2023-2024 report card, Student consistently met expectations across all subject matters. (Dingman, S-14) Student’s June 2024 Progress Report shows significant progress. Her DIBELS scores on the oral reading fluency subtest met the end-of-the-year benchmark for third grade. (Delory, O’Toole, Dingman, S-11, S-12, S-13) According to Ms. O’Toole, Student made “amazing gains,” (O’Toole, S-13) Student was also using grammatically correct sentences with 81% accuracy, editing her writing to spell words with taught spelling patterns and ending rules with 95% accuracy, and editing her work for capitalization and punctuation with 95% accuracy. (Delory, S-11, S-12, S-13)
- On July 16, 2024, Parents met with Mr. Dingman and Mr. Carlson to discuss the June 2024 Letter. While Mr. Dingman and Mr. Carlson wanted to discuss the IEP and offer some changes to it, Parents refused to discuss the document or to make any changes, stating that they wanted to do so in the context of a Team meeting. (Dingman, Carlson, Mother) The District proposed additional evaluations to inform future decisions about goals and services. (Dingman, Carlson)
- Although ESY was proposed for Student, she did not attend in the summer of 2024 because Parents assumed that busing would not work and that no nurse would be available. (P1-41, Mother) Ms. Crowe testified that nursing services were available. However, there was no nurse on the bus. (Crowe)
- On July 22, 2024, the District formally proposed an evaluation to take place at Dallin during the summer in the areas of academic achievement (reading and writing) and speech/language (expressive and receptive communication). (Carlson, P1-43, S-6, S-7, S-8) Mr. Carlson testified that Arlington was able to support testing of Student during the summer months. (Carlson)
- Via a series of email communications in July and August 2024, Parents questioned the specific test instruments that would be used and how testing would be completed during the summer, and Mr. Carlson attempted to answer their questions. (Carlson, P1-43)
- On August 12, 2024, Parents confirmed that Student would attend Carroll. (P1-42, S-6)
- On August 15, 2024, Ms. Elmer again offered a meeting to discuss potential resolution options, noting that if Parents wanted to hold a Team meeting prior to the start of the school year, not all Team members would be present; if Parents preferred not to meet, then the District would send Parents its “final proposal to try to reach resolution prior to the start of the school year.” Parents wanted the Team to reconvene. (S-6) On August 20, 2024, Mr. Carlson wrote to Parents to schedule a meeting, indicating that the entire Team would not be present. (Carlson, S-6)
- On August 22, 2024, Mr. Carlson asked to postpone the meeting due to a death in his family. (Carlson, S-6) He continued to respond to Parents’ questions regarding the evaluations. (Carlson)
- A meeting took place on September 5, 2024. It was not a Team meeting, and several Team members were absent. (Carlson, Mother, S-6) Arlington continued to propose assessments. The District also proposed to increase B-Grid and C-Gird services to 5×60 minutes, respectively (hereinafter, the September 2024 IEP). Parents verbally rejected the proposal. (Carlson, P1-10, P1-11, P1-12, P1-43, S-6, S-8, S-9) However, on September 30, Parents consented to specific assessments. (S-9)
- Parents filed for due process on September 17, 2024.
- On October 8, 2024, Mr. Dingman informed Parents that the District would be utilizing a different speech and language evaluator from the one initially identified to do the testing. This speech and language pathologist was also a reading specialist and would be better suited to assess Student in light of Parents’ past concerns. Parents felt this was a unilateral decision by the District and proposed to hold off on the evaluation until the conclusion of the BSEA hearing. (Carlson, P1-43)
- The Carroll School is not a 766 approved school. It is an independent day school for students who have been diagnosed with specific learning differences in reading and writing, including dyslexia. All Carroll educators are required to complete Orton-Gillingham training. There are no pull-outs. While Carroll provides data reports, it does not participate in IEP meetings. When updated testing is required for the IEP process, testing cannot take place at Carroll. (P2-9)
- According to Parents, “while Carroll is not a school specifically designed to meet the needs of children with Type One Diabetes, … the nursing staff have a well-established working relationship with the Endocrinology team and Boston Children’s Hospital. That, along with a smaller cohort size at Carroll, [has] allow[ed] for an appropriate response to [Student’s] medical needs which frequently went unmet [at Dallin], increasing [Student’s] actual (and [Student’s] perception of her own) health and safety at school.” (S-6, P2-9)
- According to Parent, Student’s blood glucose has been stable at Carroll; Carroll’s nurses have been proactive in monitoring Student’s blood glucose; Student feels comfortable and is making progress. (Mother, P2-5, P2-9)
- According to Mr. Carlson, Ms. Delory, Ms. O’Toole, and Mr. Dingman, Student’s IEPs were appropriate, and the goals and benchmarks were based on the information available to the Team. Dallin was and is able to meet Student’s disability-related needs. Student made progress while attending Dallin, and she was meeting her benchmarks. Ms. Delory testified that Student’s IEP was appropriate, offering a balance of addressing targeted skills in and out of the classroom. It would have been “detrimental” to increase Student’s pull outs as she was engaged and accessing the curriculum in the classroom without any modifications to the content. Although some words had to be read aloud to her, it was “not so impactful” that she could not work in class or work independently. Based on Ms. Delory’s work with Student and Student’s work samples, Ms. Delory believed that Student was making meaningful progress. As the year progressed, Student gained the use of grammar and phonics structures as well as confidence as a learner. Her DIBELS scores also demonstrated a shift in her growth. (Delory, Dingman, O’Toole, S-13)
- To date, Parents have not responded to the September 2024 IEP. (Carlson)
DISCUSSION:
- Legal Standards:
- Free Appropriate Public Education in the Least Restrictive Environment
The Individuals with Disabilities Education Act (IDEA) was enacted “to ensure that all children with disabilities have available to them a free appropriate public education” (FAPE).[15] The IDEA provides Student and Parents both procedural and substantive rights.[16] Hence, “a [fact-finder’s] inquiry … is twofold. First, has the State complied with the procedures set forth in the Act? Second, is the [IEP] developed through the Act’s procedures reasonably calculated to enable the child to receive educational benefits?”[17] Although a finding of procedural violations does not necessarily entitle appellants to relief, a procedural violation that results in substantive harm constitutes a denial of a FAPE for which relief may be granted.[18] A hearing officer may find that a child did not receive a FAPE if the procedural inadequacies impeded the child’s right to a FAPE; significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provisions of a FAPE to the parent’s child; or caused a deprivation of educational benefits.[19]
To provide a student with a FAPE, a school district must follow identification, evaluation, program design, and implementation practices that ensure that each student with a disability receives an IEP that is: custom tailored to the student’s unique learning needs; “reasonably calculated to confer a meaningful educational benefit”; and ensures access to and participation in the general education setting and curriculum as appropriate for that student so as “to enable the student to progress effectively in the content areas of the general curriculum.”[20] Under state and federal special education law, a school district has an obligation to provide the services that comprise FAPE in the “least restrictive environment.”[21] This means that to the maximum extent appropriate, a student must be educated with other students who do not have disabilities, and that “removal . . . 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.”[22] “The goal, then, is to find the least restrictive educational environment that will accommodate the child’s legitimate needs.”[23]
An IEP must be individually tailored for the student for whom it is created.[24] When developing the IEP, the Team must consider parental concerns; the student’s strengths, disabilities, recent evaluations, and present level of achievement; the academic, developmental, and functional needs of the child; and the child’s potential for growth.[25] Evaluating an IEP requires viewing it as “a snapshot, not a retrospective. In striving for ‘appropriateness,’ an IEP must take into account what was . . . objectively reasonable . . . at the time the IEP was promulgated.”[26]
At the same time, a FAPE does not require a school district to provide special education and related services that will maximize a student’s educational potential.[27] In Endrew F., the SupremeCourt explained that appropriate progress will look different depending on the student.[28] An individual analysis of a student’s progress in her areas of need is key.[29] The educational services provided to a student, therefore, need not be “the only appropriate choice, or the choice of certain selected experts, or the child’s parents’ first choice, or even the best choice.”[30] Although parental participation in the planning, development, delivery, and monitoring of special education services is central in IDEA, MGL c. 71B, and corresponding regulations,[31] school districts are obligated to propose what they believe to be FAPE in the LRE, “whether or not the parents are in agreement.”[32]
- Reimbursement for Private Placement
When parents elect to place a student unilaterally in a private school notwithstanding the availability of a FAPE through the school district, parents retain responsibility for the cost of that education.[33] However, parents who enroll a student in a private school without the consent of or referral by the school district may obtain reimbursement if a hearing officer finds both that the school district “had not made FAPE available to the child in a timely manner prior to that enrollment and that the private placement is appropriate” for the student.[34]
Parents are entitled to reimbursement for a private placement if (1) the school district’s proposed placement violated the IDEA, (2) the parent’s alternative private placement was appropriate, and (3) equitable considerations favor reimbursement.[35] In other words, parents may be entitled to reimbursement for their unilateral placement if, after demonstrating that the district’s proposed IEP and placement were not appropriate, they demonstrate that their chosen placement was appropriately responsive to the student’s needs. To be reimbursed, parents’ chosen placement need not meet state standards for special education schools, provided that the school chosen by the parents is “otherwise proper” under the IDEA or “appropriately responsive to [the child’s] special needs.”[36] Hence, the review of the private placement “is more informal than review of the original IEP: a private placement need not meet the IDEA requirement for a FAPE.”[37] Parents “need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.”[38]
- Burden of Persuasion
In a due process proceeding, the burden of proof is on the moving party.[39] If the evidence is closely balanced, the moving party will not prevail.[40]
In the instant case, as the moving party challenging the IEPs that Arlington proposed and seeking public funding for their unilateral placement at Carroll, Parents bear this burden.
- Application of Legal Standards:
It is not disputed that Student is a student with a disability who is entitled to special education services under state and federal law. The fundamental ISSUES IN DISUPUTE are set out above.
Based upon 3 days of testimony, extensive exhibits introduced into evidence, thoughtful arguments of counsel and Parents, and a review of the applicable law, I conclude that Parents did not meet their burden on their claims.[41] My reasoning follows.
I note at the outset that in reaching my decision, I place no weight on Dr. Deluca’s Observation Report or Boston University’s Oral and Written Language Evaluation as neither report was shared with the Team. As such, the Team had no opportunity to review the results and recommendations or to revise and amend the IEP if/as appropriate. Even had the Team had an opportunity to review the reports, without the testimony of Dr. Deluca and the opportunity for cross-examination, I cannot give Dr. Deluca’s report significant weight when District staff who offered contradicting testimony were subject to cross-examination. Moreover, as the evaluators from Boston University failed to solicit and consider any information from school providers, the Oral and Written Language Evaluation Report is one-sided and unpersuasive.
I turn next to a consideration of the evidentiary weight to be afforded to the testimony of both Parent and District witnesses.
From all observations at Hearing, Parent is a caring mother, a forceful advocate, and a champion of what she feels are her daughter’s best interests. Parent’s testimony demonstrated her love and dedication to her daughter, and, as such, was, understandably, emotional. Overall, her testimony was reliable, if colored by interest and bias against the District. However, it also suffered from two infirmities. Parent’s concern for Student’s development, safety, and progress led her to blur the line between what would be best for Student and what is required for FAPE or meaningful educational progress, and her testimony was more that of a mother and advocate than that of a dispassionate witness. Although Parent presented as knowledgeable regarding her daughter’s needs, she lacked the education, training, experience, and expertise to overcome the expert opinions of District witnesses with extensive education, training, experience, and expertise.
I found Ms. Delory and Ms. O’Toole to be credible witnesses. Both provided a clear, reliable representation of Student’s Dyslexia, her disability-related needs, her then-current functional levels, and the extent of her progress, which was supported by the documentary evidence. Since Parents offered no expert testimony of any kind, Ms. Delory and Ms. O’Toole offered uncontradicted expert opinions in their fields, and I place great weight on their testimony.
Both Mr. Dingman and Mr. Carlson were careful and measured in their testimony. Mr. Dingman readily acknowledged that he relied on the expertise of Ms. O’Toole and Ms. Delory as members of Student’s team. Mr. Carlson’s testimony was corroborated by his detailed email communications with Parents, especially during Student’s third-grade year.
Ms. Crowe is clearly an expert in her field and is recognized by her peers. Although her testimony was clinical and unemotional, her ability to shed light on day-to-day happenings at Dallin with respect to Student’s T1D was limited. As such, I place weight on her expertise but rely more on Parent’s testimony and the documentary evidence when making findings relative to the implementation of the 504 Plan and Parents’ concerns relative thereto. I defer to the documentary evidence where there are conflicts between the testimony and the documentary record.[42]
- Child Find Claim
The IDEA was 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.”[43] As such, “state and federal laws require schools to identify children who qualify as disabled or whom the schools reasonably suspect may qualify as disabled, experience adversity in educational performance due to their disability, and need special education and related services by reason of their disability.”[44]
Although a parent may trigger a school district’s child find obligation by indicating, explicitly or nonexplicitly, [45] a need for special education services or requesting an evaluation of her child, a parent need not make such a referral, as the “obligation applies to a school district regardless of whether the parent (or anyone else on behalf of the student) has actually requested special education eligibility or services.”[46] Moreover, the IDEA’s child find provision does not “demand that schools conduct a formal evaluation of every struggling student.”[47] To establish a violation of the child find requirement, plaintiffs “must show that school officials overlooked clear signs of disability and were negligent in failing to order testing, or that there was no rational justification for not deciding to evaluate.”[48]
Parents argued in their Closing Argument that they “fumbled for two months because the district lacked an equitable, data-driven, school-led process for referral.” However, because the District screened Student, provided her with reading interventions, continued to screen her and review her data, and finally, held a meeting to discuss next steps with the family, I find that Arlington took the necessary and proactive steps to comply with its Child Find duty to identify, locate, and evaluate Student. Through screening assessments, Student was “flagged” as a struggling reader in the middle of her first-grade year. In second grade, she began receiving reading intervention services almost immediately and was again “flagged” as being “in the red” by Ms. O’Toole, who was “keeping an eye on her” as someone who might need additional support.[49] Both Ms. O’Toole and Mr. Dingman testified that they wanted Student to undergo one cycle of RTI in second grade; if she made no progress, they planned appropriately to have a conversation with the family about next steps.[50] I found Mr. Dingman and Ms. O’Toole credible in their testimony that prior to making a referral themselves, they typically meet with the family to make sure that everyone is “on the same page.”
Neither Ms. O’Toole nor Mr. Dingman was aware of the family’s history of Dyslexia until the fall of Student’s second-grade year. Although Parent testified that she reported this to the classroom teacher in September 2022 during pick-up, Ms. O’Toole testified that she first learned of this in her November meeting with Parents. I credit Ms. O’Toole’s recollection because she testified that this family history was important information, further corroborating her belief that Student needed to be tested for special education at that time.
Although it was ultimately Parent who made the special education referral on November 18, 2022, I find persuasive Ms. O’Toole’s testimony that when she met with Parents in November, she intended to discuss a referral for additional testing. Although the District should have asked Parents to sign a consent to evaluate during the meeting, the form was provided to Parents shortly thereafter on November 23. This week-long delay is de minimis, especially as Student continued to receive intensive remediation in the interim.[51] Even assuming, arguendo, that the District should have been on notice of the family’s history of Dyslexia in September rather than November 2022, I cannot find that this delay was significant given the specific fact pattern of this matter; as Parents subsequently rejected Student’s special education services when she was found eligible in February 2023, Student suffered no educational harm as a result of the delay, and any delay in referral was harmless error.[52] Therefore, Parents did not meet their burden on this claim.
- Failure to Implement Claims
Parents argue that the District failed to implement Student’s 504 Plan. Specifically, they assert that on several occasions, school staff did not follow the 504 Plan in recognizing Student’s hypoglycemia and failed to respond appropriately.
Section 504 requires districts to provide students with disabilities with health-related services, such as the administration of medication, that must be performed during the school day to allow the student to benefit from her education.[53] Districts must ensure that staff members are provided copies of their students’ 504 plans, are familiar with their accommodations, and implement them with fidelity. Failing to implement an accommodation can violate Section 504. However, the inconsistent application of a Section 504 plan does not in itself amount to a denial of FAPE.[54] Instead, the fact-finder “must examine additional factors to determine whether the student’s educational performance suffered any adverse effects as a result of the inconsistent provision of some” 504 accommodations.[55] Hence, although “[a]ll aspects of a § 504 eligible student’s plan must be implemented to assist the student to maintain progress in school,”[56] not all implementation failures result in a denial of a FAPE.[57] Because FAPE in the context of Section 504 focuses on whether a student with a disability has meaningful access to public school programs, failure to implement a Section 504 plan does not amount to disability discrimination unless that deviation is so significant that it effectively denies the child the benefit of a public education.[58]
In the instant matter, there was no testimony that the 504 Plan was inappropriate as written. While Parent provided compelling testimony regarding her concerns, and there may have been a few glitches during the school year, the evidence does not support a finding that the 504 Plan was not implemented as written. Moreover, even if the 504 Plan was not implemented perfectly, there was no evidence that such failure denied Student meaningful participation in learning activities or prevented her from accessing her education.[59] To the contrary, Student continued to participate and progress in her classes and in all social aspects of school. In addition, Ms. Farmer, a diabetes nurse educator, was nonplussed by the challenges reported by Parents.
Parents also argued that the District failed to implement Student’s accommodations (i.e., audiobooks), an assistive technology consultation, and a referral to AYCC. Like 504 Plans, IEPs must be implemented.[60] Courts have found FAPE violations where (1) the “failure” to implement was “complete”; (2) the variance from the special education and related services specified in the IEP deprived the student of a FAPE; and (3) the provision of special education and related services failed to enable the student to make “progress” toward the achievement of the goals stated in the IEP.[61]
Here, the “failure” to implement was clearly not a “complete” failure, as Ms. Delory credibly testified that Student had access to audiobooks (including the math textbook), but, because Student’s disability was such that she could still access the content in her classes independently, Student often chose not to rely on the audio accommodation. To encourage her to do so, pursuant to the February 2023 IEP, Ms. Delory, consulted with the District’s Assistive Technology Specialist and led whole class lessons utilizing assistive technology to provide Student with opportunities to practice using her accommodations. Moreover, even had the District not provided Student with access to audiobooks, the educational services the District provided her were still sufficient “to permit [her] to benefit educationally from that instruction.”[62] This is evidenced by Student’s report cards and “Meeting Expectations” on both math ELA portions of the MCAS.[63]
In addition, although Mr. Dingman suggested that “a consultation [with AYCC] could take place for Student,” such suggestion was not proposed in the IEP and therefore, a failure to implement claim cannot lie. [64]
As such, I find that Parents did not meet their burden on their implementation claims.
- Procedural Claims
- Failure To Reconvene The Team Following Parents’ Rejection of the January 2024 IEP and The District’s Receipt of Parents’ June 3, 2024 Letter.
Parents argue that the District should have reconvened the Team following their April 22, 2024 rejection of the January 2024 IEP. Similarly, they argue that their June 3, 2024 Letter was a proposal for an out-of-district placement, which the District had an obligation to present to the Team for consideration.
The IEP Team must convene at least annually.[65] Meetings should also be held as needed “to determine whether the annual goals for the child are being achieved.”[66] However, the IDEA encourages consolidating meetings when possible,[67] and if the district and parents agree, minor IEP adjustments can be handled without formally convening.[68]
As a general rule, whenever a district proposes to substantially or materially alter a student’s then-current educational program, it should convene an IEP meeting beforehand.[69] A district is not required, however, to schedule an IEP meeting based solely upon parental request.[70]
Here, when Parents rejected the IEP in April 2024, the District had no legal obligation to reconvene the Team; an annual meeting had just been held in January, the Team believed that Student was making progress, and Parents did not request a meeting. In addition, Parents’ June 3 Letter was a Notice of Unilateral Placement. This is evident from the language in the letter (i.e., Student would “remain a public school student in the Arlington district despite her out-of-district placement,” Parents intended to seek reimbursement, etc.) and is further corroborated by the nonrefundable payments made to Carroll prior to the letter’s submission. Moreover, in June, Parents informed the school nurse and the Boston University evaluators that Student would be attending Carroll in the fall. At least one court has found that although Parent’s Notice of Unilateral Placement “could be viewed as another request for the [Team] to reconvene, absent additional information about how the student’s needs had changed since the [last Team] meeting, … [failure to reconvene the Team at that time is] not [] a denial of a FAPE.”[71] Here, I cannot find that any procedural violation occurred.
- Predetermination Claims Relative To Assistant Superintendent Of Student Services’ Response Letter Denying Funding For Carroll And The Proposal Of The IEP On September 5, 2024
Parents argue that the Assistant Superintendent of Student Services’ response letter denying funding for Carroll amounted to predetermination of Student’s placement. They also argue that the IEP proposed on September 5, 2024, was a “predetermined IEP.” The District asserts that Ms. Elmer’s letter was a standard response to a Notice of Unilateral Placement, and that the IEP proposed on September 5, 2024, was offered as a result of a resolution meeting.
Predetermination is a procedural violation that deprives a student of a FAPE when placement is determined without parental involvement in the IEP Team meeting.[72] “[P]redetermination occurs when an educational agency has made its determination prior to the IEP meeting, including when it presents one placement option at the meeting and is unwilling to consider other alternatives.” [73] The test is whether the District comes to the IEP meeting with an open mind and several options are discussed before a final recommendation is made.[74]
In cases of unilateral placement, the IDEA directs parents to provide a school district with written notice ten days in advance of placing their child in a private school, and to include in this notice a statement of their “concerns” regarding the proffered IEP.[75] As the Second Circuit explains,
“The ten-day notice requirement gives school districts an opportunity to discuss with parents their objections to the IEP and to offer changes to the IEP designed to address those objections—all before the parents enroll their child in a private school and file a due process complaint. This does not mean that a school district may unilaterally amend an IEP during the ten-day notice period; but, if parents unreasonably reject the school district’s proposed changes to the IEP, or are otherwise uncooperative, courts and hearing officers are fully empowered to deny them reimbursement. School districts thus may seek to correct the IEP during the ten-day notice period, in which they have knowledge of the parents’ objections. They may defend against a claim for tuition reimbursement by pointing out that parents did not cooperate in the revision of the IEP, or that the corrected IEP, if accepted by the parents, would have provided the child with a FAPE.”[76]
Here, Parents provided Notice of Unilateral Placement on June 3, 2023. Ms. Elmer’s response was not a predetermination of placement; rather, it was the District’s response to a unilateral placement in conformity with a school district’s right to do so. Mr. Dingman and Mr. Carlson credibly testified, and their testimony is supported by email documentation, that the meetings that followed on July 16 and September 5 were not Team meetings but rather attempts by the District to work with Parents to encourage them to return Student to Dallin for the 2024-2025 school year. During the first meeting, Parents refused to participate in any discussion about the January 2024 IEP, as revised, or to make any changes to it. Because Parents refused to “cooperate in the revision of the IEP”, the District continued to offer to collaborate on a resolution throughout August. Yet it is clear from the record that Parents had already decided to place the Student at Carroll. Although Parent testified that she was willing to consider intensified services, by refusing to discuss changes to the IEP at the July meeting, she did not allow the District to propose such services. When District representatives met with Parents in September, this was again not a Team meeting but rather an opportunity for the District to offer Parents a written proposal as a follow-up to its summer attempts. This was Arlington’s attempt to “correct the IEP” so that it could later defend against a claim for tuition reimbursement.[77] It was not a predetermined IEP, but rather a proposal made in response to Parents’ refusal to revise the IEP in July. Therefore, Parents did not meet their burden on these claims.
- Failure To Consider Parents’ Input At Team Meetings
The IDEA provides parents of a student with a disability the opportunity “to participate in meetings with respect to the identification, evaluation, and educational placement of the child, and the provision of a free appropriate public education.”[78] Participation in the decision-making process must be meaningful, not “mere form.”[79] A parent has meaningfully participated in the development of an IEP when she is informed of her child’s problems, attends the IEP meeting, expresses his/her disagreement regarding the IEP team’s conclusions, and requests revisions in the IEP.[80]
In the instant matter, the evidence does not support Parents’ contention of lack of parental participation in the IEP process. The meeting notes for each of the five Team meetings held for Student during the relevant time period, the IEP documents themselves and the revisions thereto, as well as the extensive email communications between Mr. Carlson, Ms. Delory, and Ms. O’Toole with Parents, reflect Parents’ significant and meaningful participation in the IEP process. Parents provided the IEP Team with their list of concerns and demands, which the District considered. Arlington consistently made changes to Student’s IEPs in an attempt to collaborate with Parents and respond to their concerns. [81] At no point did Parents present the Team with any private evaluation for consideration.[82] While the parties disagreed about the wording of the goals and benchmarks, the intensity of services, and the extent of Student’s progress, disagreement does not equate with a lack of parental participation.[83] Although an IEP Team is obligated to consider any program identified by Parent, the Team is under no obligation to raise, on its own initiative, nor to agree to a program it does not believe is appropriate.[84] While Parents did not agree with the final outcome of the Team process, they were nonetheless provided an opportunity to participate, and did, in fact, participate in it in a meaningful way.
- Failure To Provide Parents With Data To Document Progress
The IDEA does not specify how often a school system should collect data or how long it should be maintained; rather, it requires only that the IEP describe how the child’s progress toward her goals will be measured.[85] Nor does the IDEA require a district to use any particular method to track a student’s progress toward his annual IEP goals.[86] Instead, it leaves that decision up to the IEP team. Once the IEP team decides how the district will measure the student’s progress, it must document that method (or methods) in the student’s IEP.[87]
Here, the District relied on the DIBELS assessments, RAVE-O lessons, and WADE assessments to monitor Student’s progress. Parents found such measures “unpersuasive” of progress, but offered no evidence that these measures were inaccurate or unreliable or that Student required a different measure for progress monitoring in order to receive a FAPE. Moreover, although progress reports were issued in December, March, and June, the District offered Parents access to Student data in eight-week intervals.[88] Even when reporting on rejected benchmarks, the District continued to provide Parents with extensive data to document Student’s progress. Therefore, Parents’ claim is without merit.[89]
- Substantive Claims
Parents argue that Student’s IEPs were not reasonably calculated to provide Student with a FAPE. The standard for determining if Student received a FAPE is whether the IEPs were reasonably calculated to enable her to make progress that is appropriate in light of Student’s circumstances.[90] Whether an IEP is reasonably calculated to provide educational benefit is a prospective determination.[91]
There is no dispute that the recommendations of the initial evaluations, inclusive of accommodations, were incorporated into the February 2023 IEP. At the time the February 2023 IEP was developed, there were no recommendations for 5×60 minutes of reading instruction, except for a generic recommendation in the Student Handbook, and Ms. O’Toole persuasively testified that Student did not require this level of service, especially since she was engaged in class and benefitted from having access to her peers.
Parents argued at Hearing that the initial February 2023 IEP did not target Student’s Written Expression. However, Arlington subsequently added a Written Expression Goal (with a corresponding Grid B service). Even if the proposal in February was “initially deficient,” my focus in this Decision is “upon the educational program which finally emerge[d] from the administrative process, not the IEP as originally proposed.”[92]
For the purpose of reimbursement, my analysis turns on whether the January 2024 IEP, as revised, proposed prior to Parents’ unilateral placement in June 2024, was reasonably calculated to provide Student with a FAPE in the LRE, based on the information then available to the Team regarding Student’s needs, skill level, and progress.[93] In January 2024, when the January 2024 IEP was initially proposed, the Team had available to it evaluative data from the initial special education evaluation and information relative to Student’s progress from the previous school year. Although Parents chose to pursue private evaluations, they never shared their results with the District, and as such, any information or recommendations contained therein could not be considered by the Team.
By June 2024, at the time of Student’s unilateral placement, the then-current revised January 2024 IEP addressed Student’s skills deficits. During the 2023-2024 school year, Student accessed daily structured phonics and fluency instruction using recognized programs recommended for students with dyslexia and endorsed by Parents themselves. She also accessed daily inclusion support to target written expression and encoding. These services were provided by a highly qualified and experienced reading specialist and a similarly highly qualified and experienced special education teacher.
Parents argued that Student’s services remained the same despite her transition into special education. In other words, she continued to receive the same RTI interventions as special education services following her finding of eligibility. However, this is not a violation of IDEA. Under 34 CFR § 300.39(a)(1), “special education” means specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability. Specially designed instruction means adapting, as appropriate, to the needs of an eligible child, the content, methodology, or delivery of instruction: (1) to address the unique needs of the child that result from the child’s disability; and (2) to ensure access of the child to the general curriculum, so that the child can meet the educational standards within the jurisdiction of the public agency that apply to all children.[94] According to the Office of Special Education and Rehabilitative Services, “Response to intervention (RTI) strategies are tools that enable educators to target instructional interventions to children’s areas of specific need as soon as those needs become apparent. There is nothing in IDEA that prohibits children with disabilities who are receiving special education and related services under IDEA from receiving instruction using RTI strategies unless the use of such strategies is inconsistent with their individualized education programs (IEPs).”[95] Moreover, in Letter to Chambers, the Office of Special Education Programs observed that
“The IEP Team is responsible for determining what special education and related services are needed to address the unique needs of the individual child with a disability. The fact that some of those services may also be considered ‘best teaching practices’ or ‘part of the district’s regular education program’ does not preclude those services from meeting the definition of ‘special education’ or ‘related services’ and being included in the child’s IEP. The LEA must provide a child with a disability specially designed instruction that addresses the unique needs of the child that result from the child’s disability, and ensures access by the child to the general curriculum, even if that type of instruction is being provided to other children, with or without disabilities, in the child’s classroom, grade, or building.”[96]
Here, Ms. O’Toole testified that she shifted methodology once Student was found eligible, adding fluency instruction to the sight word and phonics interventions she had been providing. That Student’s peer grouping was not altered once she was found eligible is not evidence that the instruction Student was receiving was inappropriate or that it did not meet her needs.[97] In fact, school districts maintain flexibility over peer groupings provided that the size and composition of an eligible student’s instructional grouping when receiving services outside the general education classroom is compatible with the methods and goals stated in her IEP[98]. Parents did not offer any credible evidence that Student’s reading and written expression services, the methodology chosen by the providers, or the peer groupings were not compatible with the methods and goals stated in her IEP, or were inappropriate or not reasonably calculated to allow Student to make meaningful progress.
Parents also argued that the services offered for Student lacked intensity, but, based on the documentary evidence and the testimony at Hearing, I find that Parents have failed to demonstrate that Student required more intense services or a substantially separate language-based program in order to receive a FAPE.[99] Specifically, Parents did not meet their burden to show that Student failed to make meaningful progress in her areas of greatest weakness pursuant to the most recently implemented IEP. The testimony of Student’s service providers regarding progress was supported by the measures of progress embedded in the, RAVE-O, and DIBELS instruction and assessment tools. Although Parent did not find these measures of progress “persuasive,”[100] she offered no expert testimony to buttress her opinion. In addition, Student’s report cards demonstrate mastery of the general education material presented in her inclusion classes.[101] Therefore, the available evaluative data suggests that Student was on a positive trajectory, and no evidence was offered to demonstrate that such progress was insufficient or not “effective” in light of Student’s cognitive functioning and individual circumstances.[102]
One of the complicating factors in this matter is the confusion regarding what services Parents accepted and when. It is clear that prior to the revision of the February 2023 IEP in March 2023, none was accepted, and, hence, none could be implemented.[103] It is also clear that at some point in the spring of 2023, the District interpreted one of the Parents’ communications as accepting the offered services (though rejecting their intensity). At that time, the District had already increased the reading services to 5×40 minutes from the initial proposal of 5×30 minutes. Even with the delayed implementation[104], Student made progress during the 2022-2023 school year on her Reading Goal, suggesting that the intensity of the services was sufficient.
According to Parents, because Student has a strong cognitive profile and was hardworking, her rate of progress would have been more significant had she been provided with more intense supports. However, the IDEA does not obligate school districts to maximize a child’s potential.[105] Ms. Delory and Ms. O’Toole both testified that more intense services were not necessary for Student, and her IEP offered her a “balance” between direct instruction and time in the classroom with her peers.[106] Although Parents wanted Student to “close the gap”, the IDEA promises no such end result.[107] As stated by the Fifth Circuit, “a disabled child’s development should be measured not by his relation to the rest of the class, but rather with respect to the individual student.”[108] The “[IDEA] does not require that States do whatever is necessary to ensure that all students achieve a particular standardized level of ability and knowledge”; its charge is “much more modest[].”[109] Here, Parents’ focus was on providing Student “with the best possible education and not simply whether the IEP would provide meaningful education benefits.”[110] Nevertheless, at the time of Student’s unilateral placement she was performing, if not at benchmark, then very close thereto, a “significant” accomplishment.[111] The bottom line is that Student did, in fact, make substantial progress not only on her goals but also on objective District-wide assessment tools and even on the MCAS, and there was no definitive testimony from anybody with clinical or educational expertise to the contrary.[112]
Parents also argued that Student’s goals were insufficiently ambitious as they were not aligned with grade level standards. Each IEP developed for a child with a disability must include a statement of measurable annual goals, including academic and functional goals designed to meet the child’s needs that result from the child’s disability, to enable the child to be involved in and make progress in the general education curriculum and meet each of the child’s other educational needs that result from the child’s disability.[113] OSEP has also stated that
“we expect annual IEP goals to be aligned with State academic content standards for the grade in which a child is enrolled. This alignment, however, must guide but not replace the individualized decision-making required in the IEP process. In fact, the IDEA’s focus on the individual needs of each child with a disability is an essential consideration when IEP Teams are writing annual goals that are aligned with State academic content standards for the grade in which a child is enrolled so that the child can advance appropriately toward attaining those goals during the annual period covered by the IEP.” [114]
Ms. Delory and Ms. O’Toole persuasively explained at Hearing that the IEP goals targeted Student’s specific skill deficits to enable her to meet grade-level standards. Student was able to engage in general education content without content modifications.[115] Although I am I am sensitive to Parents’ argument in their Closing Argument that “T1D management relies heavily on reading, attention to detail and math fluency… [and that such management] will be a monumental task for [Student’s] dyslexic mind,” I cannot find that Student’s goals were unreasonable or “easy” even if they did not seek to cure her disability.[116] While Parents believed that Student’s goals were not individualized but rather aligned to the Wilson curriculum due to its availability to the District, there was simply no evidence offered that the goals, as written and then revised with Parents’ significant input, were not based on updated performance levels, did not target Student’s unique disability-related needs, or were not ambitious.
Therefore, Parents did not meet their burden on this claim.
ORDER:
Parents did not meet their burden on their Child Find, implementation, or procedural violation claims. In addition, the IEPs developed by Arlington for Student during the relevant time periods were reasonably calculated to provide a free, appropriate public education to Student in the least restrictive setting. Therfore, Parents are not entitled to reimbursement for expenses incurred for Student’s placement at the Carroll School, nor for other expenses incurred during said time.
So Ordered,
By the Hearing Officer,
/s/ Alina Kantor Nir
Alina Kantor Nir, Hearing Officer
December 16, 2024
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL
Effect of the Decision
20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must obtain such stay from the court having jurisdiction over the party’s appeal.
Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program.” Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington v. Massachusetts Department of Education, 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe, 484 U.S. 305 (1988); Doe v. Brookline, 722 F.2d 910 (1st Cir. 1983).
Compliance
A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appeals contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Elementary and Secondary Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).
Rights of Appeal
Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).
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] All work samples included in Exhibit P1-26 were excluded from the record.
[2] As many of Parents’ and Arlington’s exhibits are the same I reference either or both exhibits, in my FACTUAL FINDINGS.
[3] References to Parent are to Student’s mother
[4] According to the Parent Guide to DIBELS Assessment, “DIBELS are measures that help teachers and schools determine how students are performing on important reading skills,” including phonemic awareness, phonics, fluency, vocabulary, and comprehension. (P2-8)
[5] According to the RAVE-O Program Overview, RAVE-O is for students grades 2-4 who are approximately 1 year below grade level, fall in the “at risk” category on the DIBELS, or have been identified for Tier 2 or Tier 3 intervention. (P2-8)
[6] Parent’s response to Ms. O’Toole was delayed as the family had been ill with COVID. (S-16)
[7] Parent testified that she was familiar with the students in Student’s groupings because they were Student’s friends, and Parent was familiar with their parents as well. (Mother)
[8] Walk to Read is a model of instruction where all students in a grade are divided into skill-alike groups that receive targeted instruction based on the group instructional focus. These groups are fluid and may change as the instructional focus of the groups changes. These sessions are in addition to classroom instruction. (P1-19)
[9] On June 5, 2023, the District contacted Parents regarding enrolling Student in ESY and provided them with information regarding transportation. Parents inquired about the ESY curriculum and peer groupings, and the ESY Coordinator indicated that students would receive services in small groups of two to five (based on reading ability) from certified special education teachers and experienced reading specialists. Instruction would be based on Student’s current performance level. Although Student could potentially be grouped with students slightly older or younger than she, it was] very likely she would be with students in her same grade. Parents ultimately declined to have Student attend ESY, because of transportation and “the number of unknowns.” (P1-27, S-20)
[10] Student was diagnosed with T1D in July 2023. Ms. Crowe testified that a nurse was available at the ESY location that summer. (Crowe)
[11] The Order instructed that Blood Glucose (BG) Monitoring (CGM) must “occur daily with school nurse. School nurse to supervise BG monitoring pre-meals and whenever parent or student requests to check. School nurse to record data in school health record and patient’s logbook, in accordance to school procedures….CGM values MAY be used to make insulin dosing or hypoglycemia treatment decisions without confirmatory BG testing. HOWEVER, if CGM readings do not match symptoms, obtain a BG value prior to insulin dosing or hypoglycemia treatment….Treat for hypoglycemia at glucose level less than 70mg/dL….To achieve the target blood glucose levels [of 120mg/dL]…the school nurse may make up to a 20% adjustment in the insulin to carbohydrates ratio and/or the correction/sensitivity factor with parent consultation and permission.” This Order also states that for “URGENT matters call [the hotline] and ask for the diabetes nurse educator of the day.” (Emphasis in original)
[12] Prior to her work at Arlington, Ms. Crowe worked at the Wilmington Public Schools as a nurse leader and, before that, as a school nurse. (Crowe)
[13] Parents also requested that Student’s 504 be kept separate from the IEP as the IEP was still unresolved. (Mother, Carlson, P1-6, P1-35, P1-37, S-4)
[14] No formal input from any outside practitioners was provided to the Team. (Parent)
[15] Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1400 (d)(1)(A).
[16] See Deal v. Hamilton Cnty. Bd. of Educ., 392 F.3d 840, 853-54 (6th Cir. 2004).
[17] See Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 580 U.S. 386, 404 (2017).
[18] Deal v. Hamilton Cnty. Bd. of Educ., 392 F.3d 840, 854 (6th Cir. 2004).
[19] 34 CFR 300.513 (a)(2).
[20] See 20 USC §1401 (9), (26), (29); 603 CMR 28.05(4)(b); C.D. by & through M.D. v. Natick Pub. Sch. Dist., 924 F.3d 621, 624 (1st Cir. 2019); Sebastian M. v. King Philip Reg’l Sch. Dist., 685 F.3d 84, 84 (1st Cir. 2012); Lessard v. Wilton Lyndeborough Cooperative Sch. Dist., 518 F. 3d 18 (1st Cir. 2008); C.G. v. Five Town Comty. Sch. Dist., 513 F. 3d 279 (1st Cir. 2008); In Re: Chicopee Public Schools, BSEA # 1307346 (Byrne, 2013).
[21] 20 U.S.C § 1412(a)(5)(A); 34 CFR 300.114(a)(2)(i); M.G.L. c. 71 B, §§ 2, 3; 603 CMR 28.06(2)(c).
[22] 20 U.S.C. §1412(a)(5)(A); C.D., 924 F. 3d at 631 (internal citations omitted).
[23] C.G., 513 F.3d at 285.
[24] Endrew F., 580 U.S. at 404.
[25] 34 CFR §300.324(a)(i-v); D.B. v. Esposito, 675 F.3d 26, 34 (1st Cir. 2012); N. Reading Sch. Comm. v. Bureau of Special Educ. 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” (internal citations and quotations omitted)).
[26] Roland M. v. Concord Sch. Comm., 910 F.2d 983, 992 (1st Cir. 1990).
[27] Bd. of Educ. v. Rowley, 458 U.S. 176, 197, n.21 (1982) (“Whatever Congress meant by an “appropriate” education, it is clear that it did not mean a potential-maximizing education”); see N. Reading Sch. Comm., 480 F. Supp. 2d at 488 (“The focus of inquiry under 20 U.S.C. § 1415(e)(i) must recognize the IDEA’s modest goal of an appropriate, rather than an ideal, education”).
[28] Endrew F., 580 U.S. at 404; see 603 CMR 28.02(17).
[29] Endrew F., 580 U.S. at 404; see K.E. v. Indep. Sch. Dist. No. 15, 647 F.3d 795, 809 (8th Cir. 2011) (explaining that the court would not compare the student to her nondisabled peers since the key question was whether the student made gains in her areas of need).
[30] G.D. Westmoreland Sch. Dist., 930 F.2d 942, 948-949 (1st Cir. 1991).
[31] Rowley, 458 U.S. at 208(“Congress sought to protect individual children by providing for parental involvement … in the formulation of the child’s individual educational program”).
[32] In Re: Natick Public Schools, BSEA # 113131 (Crane, 2011).
[33] See 34 CFR §300.148.
[34] 34 CFR §300.148(c); see 20 USC §1412(a)(10)(C)(ii); see also Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 243 (2009) (explaining that §1415(i)(2)(C)(iii) authorizes “reimbursement when a school district fails to provide a FAPE and a child’s private school placement is appropriate”).
[35] See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 14 (1993); Sch. Comm. of Town of Burlington v. Dep’t of Educ., 471 U.S. 349 (1985) (parents may be reimbursed for private special education if court ultimately determines private placement was proper).
[36] Florence Cnty. Sch. Dist. Four, 510 U.S. at 14; see Matthew J. v. Massachusetts Dep’t of Educ., 989 F. Supp. 380, 390–91 (D. Mass. 1998) (“Neither the statutes, nor the decisions construing them hold, or even suggest, that a school must have a program formally designated a ‘special education’ program in order to constitute a proper placement for a student with special needs….Instead, the court must look to whether the services Master’s did provide were appropriately responsive to Matthew’s educational needs”).
[37] H.W. v. New York State Educ. Dep’t, No. CV 13-3873 SIL, 2015 WL 1509509, at *19 (E.D.N.Y. Mar. 31, 2015); see Florence Cnty. Sch. Dist. Four, 510 U.S. at 14–15 (“[It] hardly seems consistent with the Act’s goals to forbid parents from educating their child at a school that provides an appropriate education simply because that school lacks the stamp of approval of the same public school system that failed to meet the child’s needs in the first place” (internal citations and quotations omitted)).
[38] H.W., 2015 WL 1509509, at *19; see Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006) (considering totality of circumstances in determining whether placement serves a child’s individual needs).
[39] Schaffer v. Weast, 546 U.S. 49, 62 (2008).
[40] Id.
[41] See Florence Cnty. Sch. Dist. Four, 510 U.S. at 14; Matthew J., 988 F. Supp. at 391.
[42] Ms. Loop and Ms. Karustis had minimal impact on Team decisions, and I relied on their testimony only to the extent that it supports other testimony.
[43] 20 U.S.C. §1400 (d)(1)(A).
[44] Doe v. Cape Elizabeth Sch. Dep’t, 382 F. Supp. 3d 83, 87 (D. Me. 2019) (internal quotation marks and citation omitted); see also 20 U.S.C. §1412(a)(3) and MGL c. 71B, §3; D.K. v. Abington Sch. Dist., 696 F.3d 233, 244 (3d Cir. 2012) (school districts have continuing child find obligations “to identify and evaluate all students who are reasonably suspected of having a disability”).
[45] See Robertson Cnty. Sch. Sys. v. King, 99 F.3d 1139, 1996 WL 593605, at *4 (6th Cir. 1996) (agreeing that “a parent … cannot be expected to appear and say ‘My child is eligible for special education services under IDEA, and I am here to refer my child for an individual assessment,'” and continuing, “A request for assessment is implied when a parent informs a school that a child may have special needs”).
[46] In Re: CBDE Public Schools, BSEA #106854 (Crane, 2011); see Bd. of Educ. v. L.M., 478 F.3d 307, 313 (6th Cir. 2007) (“Even children who are … progressing from grade to grade, are protected by [child find] requirement”); W.B. v. Matula, 67 F.3d 484, 501 (3d Cir. 1995) (abrogated on other grounds by A.W. v. Jersey City Pub. Sch., 486 F.3d 791 (3rd Cir. 2007)) (school district must identify and evaluate children within a reasonable time after the district is “on notice of behavior that is likely to indicate a disability”); Dep’t of Educ. v. Cari Rae S., 158 F. Supp. 2d 1190, 1194 (D. Haw. 2001) (child find triggered when school district “has reason to suspect a disability, and reason to suspect that special education services may be needed to address that disability”).
[47] D.K. v. Abington Sch. Dist., 696 F.3d 233, 249 (3d Cir. 2012).
[48] Ja.B. v. Wilson Cnty. Bd. of Educ., No. 3:20-CV-00955, 2022 WL 326273, at *9 (M.D. Tenn. Feb. 2, 2022), report and recommendation adopted (Apr. 28, 2022), aff’d, 61 F.4th 494 (6th Cir. 2023) (internal quotations and citations omitted).
[49] See Questions and Answers on Response to Intervention (RTI) and Early Intervening Services (EIS)
Office of Special Education and Rehabilitative Services, 47 IDELR 196 (OSERS 1/1/2007) (“Models based on RTI typically evaluate the child’s response to instruction prior to the beginning of the evaluation time period”).
[50] See id.(“the regulations do not specify a timeline for using RTI or define adequate progress”).
[51] Spring Branch Indep. Sch. Dist. v. O.W. by Hannah W., 961 F.3d 781, 793 (5th Cir. 2020); see also Mr. F. v. MSAD #13, 2021 WL 2188678, at *18 (D. Me. 2021).
[52] See T.B., Jr. by & through T.B., Sr. v. Prince George’s Cnty. Bd. of Educ., 897 F.3d 566, 572 (4th Cir. 2018) (failure to meet Child Find obligation may constitute a procedural violation which is actionable only if student’s substantive rights are affected); see also Deal v. Hamilton Cnty. Bd. of Educ., 392 F.3d 840, 854 (6th Cir. 2004) (procedural violation must result in substantive harm to amount to a denial of a FAPE).
[53] See San Ramon Valley (CA) Unified Sch. Dist., 18 IDELR 465 (OCR 1991); Advanced Math & Science Acad. (MA), 65 IDELR 82 (OCR 2014).
[54] See Coppell (TX) Indep. Sch. Dist., 46 IDELR 196 (OCRVI, Dallas (TX) 2006).
[55] Id.
[56] In re: Student v. Bedford Public Schools, BSEA # 095853 (Figueroa, 2009); see Great Falls (MT) Public School District, 10-06-1058, 48 IDELR 200 (OCR 2006).
[57] See Wiles v. Dep’t of Educ., 593 F. Supp. 2d 1176, 1180 (D. Haw. 2008) (“if failures to implement services in an IEP are not automatically considered violations of the IDEA, it follows that similar failures would not give rise to per se liability under Section 504”).
[58] See K.U. v. Alvin Indep. Sch. Dist., 166 F.3d 341, 1998 WL 912198 (5th Cir. 1998) (failure to fully comply with the plan did not suggest that the school district acted in bad faith or with gross misjudgment).
[59] See Ridley Sch. Dist., 2011 WL 499966, at *18 (even if the 504 plan was not followed perfectly, there was no evidence that student was denied “meaningful participation in learning activities” or that his education was “undermined”); see also Loch v. Bd. of Educ. of Edwardsville Cmty. Sch. Dist. No. 7, 573 F. Supp. 2d 1072, 1087 (S.D. Ill. 2008), aff’d sub nom. Loch v. Edwardsville Sch. Dist. No. 7, 327 F. App’x 647 (7th Cir. 2009), and aff’d sub nom. Loch v. Edwardsville Sch. Dist. No. 7, 327 F. App’x 647 (7th Cir. 2009) (no violation when failure to follow 504 plan was infrequent); A.C. v. Owen J. Roberts Sch. Dist., 554 F. Supp. 3d 620, 628 (E.D. Pa. 2021) (“While the Section 504 Plan is unquestionably important, … Parents have not shown … a connection between the lack of the Section 504 Plan and specific impairments of Student’s educational progress”).
[60] See 34 CFR 300.323(c); see also 603 CMR 28.05(7)(b).
[61] See Ross v. Framingham Sch. Comm., 44 F. Supp. 2d 104, 119 (D. Mass. 1999), aff’d, 229 F.3d 1133 (1st Cir. 2000); see also Doe ex rel. Doe v. Hampden-Wilbraham Reg’l Sch. Dist., 715 F. Supp. 2d 185, 198 (D. Mass. 2010).
[62] Hampden-Wilbraham Reg’l Sch. Dist., 715 F. Supp. 2d at 198 (citing Rowley, 458 U.S. at 203, 102 S.Ct. 3034).
[63] See High v. Exeter Twp. Sch. Dist., No. CIV.A.09-2202, 2010 WL 363832, at *5 (E.D. Pa. Feb. 1, 2010) (failure to provide assistive technology denies a FAPE where no meaningful educational benefit without technology).
[64] Even if the District was required to make a referral to AYCC, Parents did not demonstrate that Student required this as an accommodation or a service, and none of Student’s teachers noted any concerns with her social-emotional functioning. Most importantly, it does not appear from any of the testimony or the documentary evidence that the Student’s progress was impacted by her social-emotional functioning.
[65] 20 U.S.C. § 1414(d)(4).
[66] 34 CFR 300.324 (b)(1)(i).
[67] See 34 CFR 300.324 (a)(5).
[68] See 20 USC § 1414 (d)(3)(D); and 34 CFR 300.324 (a)(4).
[69] See Letter to Green, 22 IDELR 639 (OSEP 1995).
[70] Notice of Interpretation, Appendix A to 34 CFR Part 300, Question 20 (1999 regulations). Nevertheless, if the parents of a child with a disability believe that the child is not progressing satisfactorily or that there is a problem with the child’s current IEP, it would be appropriate for the parents to request, and for the District to schedule, an IEP meeting.
[71] Mason v. Carranza, No. 20-CV-4010 (PKC) (SJB), 2024 WL 3624058, at *4 (E.D.N.Y. Aug. 1, 2024).
[72] See Doyle v. Arlington County School Board, 896 F.Supp. 1253, 1262 (E.D. VA 1992) (citing Deal v. Hamilton County Board of Education, 993 F. 2d 1031(6th Cir. 1993)).
[73] H.B. ex rel P.B. v. Las Virgenes Unified School Dist., 239 Fed.Appx. 342, 344-346, 2007 WL 1989594, 2 (C.A.9 (9th Cir. 2007); see Deal v. Hamilton County Board of Education, 392 F.3d 840, 857 (6th Cir. 1993).
[74] See Deal, 392 F.3d at 858; see also T.B. v. Warwick Sch. Dept., No. 01-122T, 2003 WL 22069432, at *10 (D.R.I. June 6, 2003) aff’d sub nom. Lt. T.B. ex rel. N.B. v. Warwick Sch. Comm., 361 F.3d 80 (1st Cir. 2004).
[75] 20 U.S.C. § 1412(a)(10)(C)(iii); see34 C.F.R. § 300.148(d).
[76] Bd. of Educ. of Yorktown Cent. Sch. Dist. v. C.S., 990 F.3d 152, 170–71 (2d Cir. 2021).
[77] Id.
[78] 20 U.S.C. § 1415(b)(1).
[79] See Doe ex rel. Doe v. Attleboro Pub. Sch., 960 F. Supp. 2d 286, 296 (D. Mass. 2013); see also Deal, 392 F.3d at 858
[80] See Fuhrmann, 993 F. 2d at 1036; N.L. v. Knox County Schools, 315 F.3d 688, 693 (6th Cir. 2003); Ms. S. v. Vashon Island School Dist., 337 F.3d 1115, 1133 (9th Cir. 2003) (standard for “meaningful participation” is adequate opportunity to participate in the IEP development).
[81] T.P. ex rel S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253–54 (2d Cir. 2009) (adoption of parents’ recommendations shows meaningful participation); M.M. ex rel. A.M. v. New York City Dep’t of Educ. Region 9 (Dist. 2), 583 F. Supp. 2d 498, 506–07 (S.D.N.Y. 2008) (no predetermination where school amended IEP to include paraprofessional support per parents’ request).
[82] See 603 CMR 28.04(5)(f) (Team must “consider” independent education evaluations produced by Parents).
[83] See B.K. v. New York City Dep’t of Educ., 12 F. Supp. 3d 343, 359 (E.D.N.Y. 2014) (even if IEP deviated from parents’ request, parents were not “passive observers” at the meeting); P.K. ex rel. P.K. v. Bedford Cent. Sch. Dist., 569 F.Supp.2d 371, 383 (S.D.N.Y.2008) (professional disagreement is not IDEA violation); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 132 (2d Cir. 1998) (statute does not guarantee “everything that might be thought desirable by loving parents”).
[84] See603 CMR 28.05(3)(c); see also Letter to Richards, 55 IDELR 107 (OSEP 2010) (if the team cannot reach consensus, district determines appropriate services); Haverhill Public Schools, BSEA # 2005314 (Berman, 2020) (Haverhill did not need to consider or propose the entire universe of possible placements”); Cobb County School District, 109 LRP 72062 (SEA GA 2009) (“difference in opinion” is not predetermination).
[85] 20 U.S.C. § 1414(d)(1)(A)(i)(III).
[86] Analysis of Comments and Changes to 2006 IDEA Part B Regulations, 71 Fed. Reg. 46,662 (2006).
[87] See 34 CFR 300.320 (a)(3)(i).
[88] See R.F. by & through E.F. v. Cecil Cnty. Pub. Sch., 919 F.3d 237, 249–50 (4th Cir. 2019) (where parents received summaries of the data in quarterly reports, their ability to “participate in the decision-making process” was not “significantly impeded’”).
[89] See Colonial Sch. Dist. v. G.K. by & through A.K., 763 F. App’x 192, 198 (3d Cir. 2019) (requiring “serious[ ] depriv[ation] of parents’ participation rights—by, for example, the withholding of a student’s evaluation records from her parents” to find a procedural violation).
[90] See Endrew F., 580 U.S. at 404.
[91] See Fuhrmann, 993 F.2d at 1041 (3d Cir.1993) (FAPE obligation is “prospective; it is based on an evaluation done by a team of experts prior to the student’s placement … [and is] assessed in terms of its appropriateness at the time it is created and not at some later date”).
[92] Douglas W. & Susan W. v. Greenfield Pub. Sch., 164 F. Supp. 2d 157, 166 (D. Mass. 2001) (citing Roland M., 910 F.2d at 988).
[93] See G.S. by & through L.S. v. Fairfield Bd. of Educ., No. 3:16-CV-1355 (JCH), 2017 WL 2918916, at *9 (D. Conn. July 7, 2017) (for reimbursement, examine IEP when Parents effectuated the unilateral placement).
[94] See 34 CFR § 300.39(b)(3).
[95] Questions and Answers on Response to Intervention (RTI) and Early Intervening Services (EIS), 47 IDELR 196 (OSERS, January 1, 2007).
[96] Letter to Chambers, 59 IDELR 170 (OSEP May 9, 2012).
[97] See M. v. Falmouth Sch. Dep’t, 847 F.3d 19, 27-28 (1st Cir. 2017) (explaining that “the IDEA does not require schools to include specific instructional methods in an IEP” and that schools may retain “a certain degree of flexibility in accomplishing the outlined objectives”).
[98] See 603 CMR 28.06 (6)(b).
[99] See R.F. by & through E.F. v. Cecil Cnty. Pub. Sch., 919 F.3d 237, 251 (4th Cir. 2019) (“Appellants offered no other evidence that the May 2016 IEP contained an inadequate number of special education hours to enable R.F. to make progress appropriate in light of [her] circumstances” (internal quotations and citation omitted)).
[100] In their Closing Argument, Parents argued that they did not “believe the district’s reliance on DIBELS to determine progress was problematic for numerous reasons, most notably that the district never calibrated its testers to ensure accuracy and the district’s acknowledgement that scores could be impacted by background knowledge and oral language skills, both of which are significant areas strength for [Student].”
[101] See Dedham Public Schools, BSEA # 003591 (Crane, 2001) (“Student [had] been successful … in all aspects of his curriculum[, and the] classwork, homework assignments, quizzes and tests … [were] identical to those provided to his regular education peers”); E.D. v. Colonial Sch. Dist., No. CV 09-4837, 2017 WL 1207919, at *11 (E.D. Pa. Mar. 31, 2017) (“we look to regular examinations, grades, and advancing from grade to grade as important factors in measuring the educational benefit received by the disabled student”).
[102] See Endrew F., 580 U.S. at 404; Norristown Area Sch. Dist. v. Frank, No. CV 13-5612, 2014 WL 11370484, at *10 (E.D. Pa. June 18, 2014), aff’d sub nom. Norristown Area Sch. Dist. v. F.C., 636 F. App’x 857 (3d Cir. 2016) (IDEA does not guarantee “a certain amount of progress on standardized math assessments”).
[103] See 603 CMR 28.05(7)(b) (school must implement all accepted elements of the IEP without delay). Cf. 34 CFR 300.323 (c)(2) (“as soon as possible following development of the IEP, special education and related services are made available to the child in accordance with the child’s IEP”).
[104] The delayed implementation was due to Parents’ rejection of the initial IEP and its subsequent revision.
[105] See Rowley, 458 U.S. at 189–90.
[106] See G.M. ex rel. Marchese v. Drycreek Joint Elementary Sch. Dist., No. 2:10-CV-00944-GEB, 2012 WL 3913403, at *18 (E.D. Cal. Sept. 7, 2012) (“District was not required to ensure that Student made even faster progress in language arts at the expense of all the other benefits of middle school”); Troy Sch. Dist. v. Boutsikaris, 250 F. Supp. 2d 720, 735–36 (E.D. Mich. 2003) (IEP was appropriate in addressing student’s areas of weakness while preserving his interactions with his general education peers).
[107] See Colonial Sch. Dist. v. G.K., No. CV 17-3377, 2018 WL 2010915, at *15 (E.D. Pa. Apr. 30, 2018), aff’d, 763 F. App’x 192 (3d Cir. 2019) (discouraging courts from considering “imperfect progress [as] a valid basis for relief”); Ruffin v. Houston Indep. Sch. Dist., 459 F. App’x 358, 363 (5th Cir. 2012) (although student performed at least one grade level below peers, teachers testified student had shown improvement); High v. Exeter Twp. Sch. Dist., No. CIV.A.09-2202, 2010 WL 363832, at *5 (E.D. Pa. Feb. 1, 2010) (while “every parent wants his or her child reading on grade level, [] parents could not have reasonably expected the District to close a six-year gap in her reading ability in one year. Furthermore, the IDEA does not require such a demanding result from public schools”).
[108] Houston Independent School Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir.2000).
[109] Thompson R2-J Sch. Dist. v. Luke P., 540 F.3d 1143, 1155 (10th Cir. 2008); see C.K., v. Bd. Of Ed. Of Sylvania City Sch. Dist., 81 IDELR 212 (6th Cir. 2022) (school cannot be ordered to “fully remediate [a] two-year grade level reading deficit”); Bolton Public Schools, BSEA # 940625 (Byrne, 1994) (“‘satisfactory’ means consistent with the student’s potential, the goals established by the special education team and/or the regular education standards…not [] achievement at grade level per se”).
[110] Allyson B. ex rel. Susan B. v. Montgomery Cnty. Intermediate Unit No. 23, No. CIV.A.07-2798, 2010 WL 1255925, at *13 (E.D. Pa. Mar. 31, 2010), aff’d sub nom. A.B. ex rel. Susan B. v. Montgomery Cnty. Intermediate Unit, 409 F. App’x 602 (3d Cir. 2011).
[111] See Exeter Twp. Sch. Dist., 2010 WL 363832, at *5.
[112] See In Re: Belchertown Public Schools, BSEA # 2112052 (Putney-Yaceshyn, 2022) (“while Parents indisputably know Student better than anyone else, their expertise is as Student’s parents and not as educators. Father does not have an educational or clinical background”).
[113] See 34 CFR 300.320 (a)(2).
[114] Dear Colleague Letter, 66 IDELR 227 (OSERS/OSEP 2015) (IEP goals must align with state academic content standards for the grade in which the student is enrolled).
[115] See id. (“With this specialized instruction and these support services, the IEP would be designed to enable the child to be involved and make progress in the general education curriculum based on the State’s [] grade content standards, while still addressing the child’s needs based on the child’s present levels of performance”).
[116] See Doe v. Marlborough Pub. Sch., No. CIV. A. 09-11118-WGY, 2010 WL 2682433, at *7 (D. Mass. June 30, 2010) (IEP must be “likely to produce progress, not regression” and to afford student “with an opportunity greater than mere trivial advancement”) (citing Walczak v. Fl. Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir.1998)).