COMMONWEALTH OF MASSACHUSETTS
Bureau of Special Education Appeals
In Re: Odile1 and Bellingham Public Schools
BSEA # 03-2446
DECISION
This decision is issued pursuant to M.G.L. c. 71B and 30A, 20 U.S.C. § 1401 et seq ., 20 U.S.C. 794 and the regulations promulgated under these statutes. A hearing was held in the above-entitled matter on June 19 and 20 and October 14, 2004, at the offices of Catuogno Court Reporting Services in Worcester, MA. Those present for all or part of the proceeding were:
Parents
Anne Howard Educational Consultant
Marijane Hackett Director of Special Services, Bellingham Public Schools
Jo-anne Hoyt Resource Room Teacher, Bellingham Public Schools
Susan Morgan Occupational Therapist, Bellingham Public Schools
Jacqueline Ferreira Speech-Language Pathologist, Bellingham Public Schools
Lauren Samek 6 th Grade Teacher, Bellingham Public Schools
Gayle Greene Advocate for Parents
Mary Ann McGinnis Attorney for Parents
Fred Misilo Attorney for Parents
Regina Williams Tate Attorney for School
Lindsay Byrne Hearing Officer
The official record of the hearing consists of documents submitted by the Parents, marked P-1 through P-48 and P-50 through P-74; documents submitted by the School, marked S-1 through S-100; and approximately 13 hours of recorded oral testimony and argument. Both parties submitted written closing arguments by December 3, 2003, and the record closed on that date.
Issues
1. Whether the 2002-2003 I ndividualized Education Plan proposed by Bellingham was reasonably calculated to ensure a free appropriate public education to Odile in the least restrictive setting?
2. If not, whether the Parents are entitled to reimbursement of expenses incurred as a result of their unilateral placement of Odile at the Learning Prep School in January 2003?
Summary of the Evidence
1. At the time the dispute arose Odile was a 12 year old 5 th grade student with special learning needs. She has significant cognitive limitations, with standardized scores on measures of intellectual functioning consistently falling below 70. She has been diagnosed with cerebullar dysarthia, mixed expressive-receptive language disorder, and learning disabilities in the areas of mathematics, reading, and written expression. She wears a hearing aids. In addition she has a short attention span and is highly distractible. (S-41, P-14; S-79, P-51; S-55-59, P-52-53;S-73-77; S-82-95)
2. The Student has received special education services through the Bellingham Public Schools since pre-school. From the first through the fifth grade the Student was placed in a substantially separate classroom taught by Mr. MacAdams. She received individual and small group Adaptive Physical Education, Occupational Therapy, Speech-Language Therapy, Physical Therapy, and systematic reading instruction. Throughout this time, the Student’s teachers and service providers consistently reported slow but steady progress in the acquisition of academic, sensory, motor and social skills. (Compare S-73-77 and S-55-59; See S-52; S-51; S-48; S-47) While there is little informative objective data due to testing limitations, the record shows that the Student functioned broadly at the 6 year old/1 st grade level in March of 2000, when she was chronologically ten and placed in the 3 rd grade. By the spring of 2002 when she was completing the fifth grade, the Student performed at the second grade level in reading and the third grade level in math. (S-55, 57; S-41, P-14) There is no contrary evidence in the record. (See also: S-45, P-3, 11; S-49, P-55; S-53; S-60; S-65; S-67; S-72)
3. The Team met for an annual review of the Student’s progress on March 5, 2002, during the Student’s fifth grade year. Bellingham proposed continuing the Student’s placement in the substantially separate classroom taught by Mr. MacAdams in which the Student had been receiving services since the first grade. (S-45, P-3, 11) The Parents rejected the proposed IEP. The Student’s father testified that they believed the Student needed a different, more challenging program. In particular they wanted the Student to have access to a more comprehensive curriculum and exposure to regular peer models. (Parent).
4. During May 2002, the Parents learned of a newly established middle school program for students with significant learning needs. They were notified that, as an entering 6 th grader, Odile would be eligible for the program. No other information about the middle school program was available. The middle school program was never formally offered as a placement option for Odile. (Parent; S-1; P-5)
5. The Team reconvened on June 6, 2002. The Team did not discuss the Student’s progress toward the IEP goals and objectives at length. The Team agreed that placement outside Mr. MacAdams’ substantially separate class would be appropriate. The Parents and their advocate, Gayle Greene requested placement in another school district or private school. The school district’s team members suggested placement in another Bellingham program. The meeting concluded without a decision. (Parent; Morgan; S-42; P-8, S-44)
6. The Team reconvened on June 19 and 24, 2002. Bellingham proposed placing the Student in a 4 th through 6 th grade Resource Room for the bulk of her instruction, and mainstreaming her into 6 th grade science and social studies with an inclusion aide. The father testified that he was surprised by this proposal because that resource room had never been mentioned previously as a placement option for the Student. He testified that it was his understanding from prior team discussions that there was general agreement that an “outside” placement would be appropriate for the Student. (Parent)
7. On June 24, 2002, Bellingham proposed an IEP calling for the Student’s 6 th grade placement in a resource room more than 75% of the school day. The Student strengths section notes that Odile is cooperative, motivated and a hard worker. She enjoys doing academic work although performs below grade level. The IEP listed goals in the development of competency in reading, arithmetic, cursive handwriting, communication, sensory motor skills, written expression, speech production, adaptive physical education, science and technology and social studies. A modified curriculum would be used in all areas. The IEP noted that Odile’s short attention span and distractibility and sensory processing issues compromise her performance. Accommodations in the classroom include small group and one to one learning situations, repetition, modeling, questioning for understanding, rewording, use of concrete examples, simplified directions with repetition, extra time for processing, preteaching, preferential seating, structured and modified homework, and computer access. The IEP also noted her need for constant cues and prompts for carryover of learning, and exposure to same age nondisabled peers for appropriate socialization.
Under this IEP the Student would receive all language arts and math instruction, along with preteaching and reinforcement of other subject areas, in the Resource Room. She would also receive daily, systematic reading instruction, speech and language services four times a week, and occupational therapy once per week. The Student would attend homeroom in a mainstream 6 th grade class, and attend mainstream science and social studies classes, two periods a week each, with an inclusion aide. The IEP included a comprehensive list of mainstream classroom accommodations to address sensory processing, postural control, motor performance, motor planning and organizational skills. (P-13, S-43)
8. The Parents “conditionally” accepted the IEP and placement on July 23, 2002. In an accompanying letter the Parents wrote that although they were opposed to the IEP, the option of remaining in Mr. MacAdams’ substantially separate class was even less desirable. They requested: a school schedule and identification of teachers in advance; additional classroom modifications; weekly progress reports; an observation by the Parents’ chosen educational consultant; models/examples for all assignments; clarification of grading policies; and identification of alternate placements school personnel believed would be appropriate for the Student. (S-40; P-15)
9. On July 3, 2002, the Student was evaluated by clinicians Kathleen Parnell and Brett Leimkuhler of the Center for Neuropsychology and Learning Disorders. Their findings were consistent with their previous evaluation, conducted in January 1997, and with subsequent assessments and evaluations by school personnel. (S-41, P-14; S-79, P-51. See also: S-55-59, P-52-53; and S-73-77) They found that the Student has borderline intellectual functioning with associated global functional delays. They also noted that the Student exhibits additional disorders in receptive-expressive language, mathematics reasoning, reading comprehension and written expression. They wrote:
Overall, [Odile] has made good progress and has developed skills that were not considered likely in the past, such as her ability to decode and spell words. Nevertheless, she has a neuropsychological profile that indicates she has very significant learning needs and the placement must be considered carefully.
Based on their findings they made the following educational recommendations:
1. It is recommended that [Odile] be placed in a language based classroom with a low student-teacher ratio. Other students in the classroom should have learning needs similar to [Odile’s] so that she is learning with a group of peers.
2. [ Odile] has made good progress in developing her reading accuracy skills and thus her current program, or a similar one, should be continued. However, there needs to be an increased emphasis on reading comprehension. This can be provided either by the resource teacher, a reading specialist or a speech/language pathologist.
3. [Odile] will require continued pull-out service for occupational therapy once per week and speech therapy three times a week at a minimum, with increased time if reading comprehension is added to the instructional plan.
4. Disruptions to [Odile’s] day should be minimized. However, if [Odile] is mainstreamed for any subjects, she should be placed with students of similar cognitive and social developmental level. This is a particular concern with science and social studies. If she cannot receive this instruction where it is presented at an appropriate cognitive level for her, then it is preferable for her to remain in the resource room and retain her focus on maximizing growth in reading and mathematics.
5. The following classroom modifications are suggested (some more appropriate if mainstreamed for some subjects):
a. preferential seating
b. regular monitoring of attention, with her attention
a prerequisite before beginning instruction
c. regular monitoring of comprehension of directions and instruction, e.g. through having her reauditorize, checking that she begins her work correctly and doing initial items with her whenever necessary
d. presentation of information
-in brief chunks
-with linguistically simple and clear language
-using multiple modalities, e.g. visual, auditory, hands-on
-incorporating several repetitions and ongoing review
e. alternation in type of work, e.g. individual seatwork alternating with group work or hands/on work
f. preparation for changes in routine or switching to a new topic or set of concepts or skills
g. clear models and examples provided with all assignments for reference
h. reduced work (classwork and homework) and extended times whenever necessary, including allowing her extra time to give verbal responses when questioned
6. It is recommended that [Odile’s] parents receive a weekly progress report from each of her teachers to include what the focus of instruction has been for the week, the progress she has made, and any ways that her learning can be reinforced at home.
7. It is recommended that an informal meeting be held every 6 to 8 weeks with [Odile’s] parents and teachers to assess the success of her program and the possible need for increased intervention.
(P-14, S-41, p. 6, 7)
10. The Team reconvened on September 10, 2002, to discuss the Student’s 6 th grade program. The Team reviewed the Parents’ letter of July 2002, which outlined their concerns. (See ¶ 8; Hackett) Mary Jane Hackett, Director of Special Services for Bellingham, testified that the Team believed that most of the Parents’ requests could be accommodated. She indicated the Team’s assent with a comment beside each point on a copy of the Parents’ letter. (See S-40, S-39) These included learning accommodations, parent-school communication tools and program review by an educational consultant. The primary area of concern for the Team was the Student’s placement in both mainstream science and mainstream social studies. According to the schedule the Student would spend only half of the available mainstream instructional periods in each course. The Team agreed that concentrating on one continuous mainstream subject would be preferable for the Student. The second subject could be started when the Student’s success in one mainstream subject had been determined. The Team decided to begin mainstream instruction in science. There was no discussion about where, if at all, social studies instruction would take place. Ms. Hoyt, the resource room teacher, testified that the Parents asked her to concentrate on language arts and math rather than implementing a social studies curriculum in the resource room for the Student. I credit her testimony. (Hackett; Hoyt)
11. Bellingham proposed an Amendment to the 2002-2003 IEP incorporating the classroom modifications requested by the Parents: preferential seating; monitoring of attention and comprehension; alternate modes of presenting information; preparation for transitions; use of models and examples; reduced work expectations; and clarification on grading policies. In addition the Amendment provided for daily/weekly communication with the Parents through the use of the Student’s agenda. The Amendment noted that the Student would not participate in Spanish or social studies in the general curriculum, but would participate in mainstream science class four days a week. It also noted that schedule changes would not take place without parental approval. (P-17, 18, S-37, 39)
12. The Student’s schedule was adjusted immediately after the Team meeting so that she attended only science class in the mainstream. She received no social studies instruction during the fall semester. (Parent, Hoyt)
13. On October 25, 2002, the Parents rejected the proposed Amendment and revoked their earlier acceptance of the 2002-2003 IEP. In a letter to the special education director they stated that the IEP Amendment failed to incorporate the conditions set out in their July, 2002, letter, specifically:
1. a written policy concerning grading;
2. a mechanism for weekly progress reports;
3. a stipulation that the Parents’ educational consultant would have “multiple visitations”;
4. a stipulation that the School “collaborate” in identifying appropriate outside placements;
5. instruction in “the curriculum framework in the safest environment with the highest learning potential”.
(P-21, S-3) Rather than returning to the substantially separate class pursuant to the last accepted IEP the Student continued her placement in the grade 4-6 resource room with mainstream homeroom, science and specials during the pendency of this dispute. (Parent)
14. Anne Howard, the Parents’ educational consultant, observed the Student in Bellingham on September 25, 2002. Dr. Howard (P-54) observed the resource room, the mainstream science class, lunch and recess, adaptive physical education and speech-language therapy. She also reviewed the July 2002, evaluation from the Center for Neuropsychology, the proposed 2002-2003 IEP and the Parents’ letter in response. Dr. Howard testified that due to the Student’s severe, multiple disabilities, she required a well coordinated, well planned, system of direct instruction. Dr. Howard testified that she could not judge whether the Student’s placement was appropriate or inappropriate based on just one day’s observation. She added, however, that her observation and document review raised some serious concerns about the delivery of services to the Student. While Dr. Howard found the type and level of educational services appropriate for the Student, she noted that the program as a whole lacked the integration the Student needs to generalize newly learned skills. In particular, Dr. Howard testified that there was inadequate communication among the related service providers and the resource and mainstream teachers so that goals and techniques were not addressed in all settings. Furthermore, Dr. Howard found the grading and homework sheets used by the resource teacher gave the Student insufficient feedback and models so that she and her Parents were unable to pinpoint skills that required further work. Dr. Howard noted difficulties associated with the resource room environment as its new teacher began its first year of operation. She found outdated materials, a non-functioning computer, inadequate attention to the Student, (i.e., no one checked hearing aids) and lack of direct instruction in mainstream academic support. In addition, Dr. Howard criticized the failure to provide social studies instruction to the Student in any setting. Dr. Howard recommended:
1. integration of related services goals into the instruction and environment of the resource room and mainstream class;
2. monthly meetings among service providers
3. physical changes to the resource room to increase instructional
space
4. clarification of the roles of the teacher and instructional assistant in the resource room
5. linking the goals/expectations of the resource room and mainstream class through use of a single student agenda
6. amending the IEP to accurately reflect the time student spends ineach setting and to ensure that the student has full access to the Massachusetts Curriculum Frameworks
(Howard; S-34, P-23)
15. Joanne Hoyt was the resource room teacher responsible for the bulk of the direct instruction to the Student during the 2002-2003 school year. She testified that she provided instruction in language arts and math. She concentrated on essay development and persuasive writing in order to mirror the regular 6 th grade curriculum. (See P-28) During the fall, 2002 Ms. Hoyt did not provide social studies instruction in the resource room as the Parents had requested that she concentrate on language arts and math. There was no IEP Amendment reflecting that decision. Ms. Hoyt drafted a grading rubric at the Parents’ request. She also aligned the Student’s learning objectives with the Massachusetts Curriculum Frameworks and the IEP goals. (P-25) Ms. Hoyt testified that the Student made effective progress in the fall of 2002. Ms. Hoyt was initially unclear about the parental communication requirements for this Student but began using the Student’s assignment book to explain the Student’s classroom performance and homework by the end of October 2002. (Hoyt; S-3)
16. Lauren Samek was the Student’s mainstream 6 th grade teacher. She was responsible for homeroom, specials, lunch and science. Ms. Samek testified that the Student participated in mainstream 6 th grade activities with little assistance. She had friends and jobs. She always appeared comfortable and focused. Initially the Student had an aide with her during science class but after a while the Student “dismissed” the aide saying she could “do it” on her own. (Samek) Ms. Samek developed academic expectations for the Student so that her grade could be evaluated. (S-29) Ms. Samek testified that the Student made “great” progress, earning an “A” for science (Samek; S-35, 32) The only recommendation Ms. Samek would make would be to increase the Student’s time in the mainstream. From the beginning of the school year Ms. Samek used the Student’s assignment book to communicate with the Parents. (S-3; Samek)
17. Susan Morgan provided occupational therapy services to the Student during 2002-2003, as she had in some previous years. She worked with the Student both in an individual therapy setting and in the resource and mainstream classrooms. Ms. Morgan testified that she provided sensory integration exercises in the therapy room as well as a sensory diet in the classroom. The Student also used “brain gym” exercises in both settings. At the Parent’s suggestion Ms. Morgan used science and social studies vocabulary as the basis for handwriting instruction, thereby integrating the avenues of learning. Ms. Morgan testified that the Student worked hard and was eager to please in all settings. She did not use all the classroom accommodations available to her, but still produced the expected work. Ms. Morgan stated that the Student made “great” progress in attention and sensory modification over the course of treatment, that her progress had exceeded expectations, and that there was no reason the Student could not continue to make similar progress. (S-27; S-29; S-43; S-22; S-18; S-43, P-13) Ms. Morgan sent her own notes to the Parents concerning the Student’s progress as the Student did not bring her assignment book to the therapy sessions. (S-9, 11) According to Ms. Morgan, although she had been absent several times in the fall, 2002 the classroom brain gym time made up for the missed direct therapy sessions. (Morgan)
18. Jacqueline Ferreira had provided speech-language services to the Student since kindergarten and continued during the 2002-2003 school year. Ms. Ferreira testified that the Student made steady, though quite slow, progress consistent with a significant motor planning disability. When the Student began mainstream classes for the first time in September 2002, the mainstream teacher provided vocabulary for use in the speech therapy context so that the Student could work on definitions, pronunciation, diction and grammar. Ms. Ferreira completed the usual progress reports (S-29) until November 2002, when she began weekly progress reports at the Parents’ request. (S-3) Ms. Ferreira stated that some scheduled speech-language sessions were not held due to her own absences. She had planned to provide compensatory sessions during the winter/spring 2003, but the Student withdrew from school.
19. The Parents requested a hearing at the BSEA on December 2, 2002.
20. On December 5, 2002, the Student’s service providers began biweekly early morning meetings to coordinate strategies, content and reporting.
(P-42, S-21; S-10; S-24; Samek, Morgan)
21. The Team reconvened on December 11, 2002. The Team discussed methods of coordinating service provision, refining IEP goals, and providing result of the Team meeting Bellingham proposed an IEP on December 19, 2002 continuing the Student’s placement in the 4-6 th grade resource room with a 6 th grade mainstream component to include full immersion in science and social studies. The IEP continued to provide direct instruction and therapy services for systematic reading, speech-language and occupational therapy. The placement and program under the December 2002, IEP would be substantially similar to that offered under the June 2002, IEP. (S-22, P-32; See also S-43, P-13)
22. By way of a letter dated December 17, 2002, the Parents notified Bellingham of their intent to remove the Student from her program and to place her in the Learning Prep School beginning January 13, 2003. As reasons for this move the Parents cited their lack of confidence in Bellingham’s capacity to provide a free, appropriate public education to the Student because Bellingham had allegedly failed to provide the Parents with copies of the Student’s classwork and grading information, as well as advance information about content areas to be covered and tested in each class. The Parents also wrote that the Student had missed several occupational therapy sessions due the school therapist’s absence. The Parents asserted that therapy sessions would not be missed due to provider absence at the Learning Prep School. (P-73, S-16; See also P-27, 28, 29; S-25; S-29, 30, 31)
23. On February 4, 2003, the father signed the IEP proposed on December 19, 2002. He checked the response boxes to accept the program but to refuse the placement in Bellingham. He testified that he checked the acceptance box solely in order to provide Learning Prep with the current IEP it had requested. He stated it was never his intention to actually approve of any part of the special education program offered by Bellingham for the 2002- 2003 school year. (Parent; P-32, S-22)
24. The Learning Prep School is a state-approved private special education school. (Administrative Notice) The father testified that Learning Prep provides a comprehensive academic program, with all necessary related services, which works on goals that are tailored individually to the Student. He has daily communication with the school, and the Student has clear, daily expectations. The instructional strategies are coordinated across classes, and monitored through charts, rubrics, and grading sheets. (P-64, 69, 70, 71) He testified that the Student is very happy at Learning Prep, while in December 2002, in Bellingham she had nightmares and episodes of sleepwalking. (Parent)
Findings and Conclusions
The parties agree that Odile is a student with special learning needs as defined in MGL. C. 71B and 20 U.S.C. 1401 et seq. and is entitled to receive a free, appropriate public education. They disagree as to whether Bellingham is able to provide that education. After careful consideration of all the evidence adduced in this hearing I conclude that the 2002-2003 IEP proposed by Bellingham in June 2002, was reasonably calculated to provide a free, appropriate public education in the least restrictive setting, and that the Amendment proposed in October 2002, and the subsequent integrated IEP developed in December 2002, further clarified the program and services that were appropriately tailored to Odile’s unique circumstances and needs. My reasoning follows:
First, I note that the School argued that I should analyze this matter as if it were a compliance hearing. Since the Parents ultimately accepted the program proposed in the December 2002 IEP and rejected only the placement, the school framed the issue as whether Bellingham could in fact deliver the accepted services. The School also pointed out that the Parents’ preferred placement, the Learning Prep School, could not implement the accepted services as the “mainstream” classes listed in the IEP could not be delivered in a facility which serves solely students with disabilities. I decline to accept the School’s view of the issue. The record shows that the School had notice as early as June 2002, of the Parents’ dissatisfaction with Bellingham’s special education program. The Parents made plain their reservations in writing (S-40, P-15, S-16, P-73) and through Team meetings (P-8, S-44, P-18, S-39). On October 25, 2002, they formally revoked their prior acceptance of the 2002-2003 IEP, and rejected the proposed Amendment to that Plan. (S-33, P-21) It is that rejection which provided the foundation for the Parents’ hearing request on December 2, 2002. The IEP developed on December 19, 2002, is substantially similar to the one previously rejected by the Parents. It provides the same type and level of services in the identical setting. More than thirty days passed after it was proposed with no response from the Parents. 603 CMR 28.05 (7). During that time the Parents, with appropriate notice to the School, withdrew the Student from Bellingham and placed her in Learning Prep at their own expense. This is not a fact pattern which supports a finding that the Parents willingly “accepted” the IEP. I credit the father’s testimony that his February 4, 2003 acceptance of the program proposed in the December 2002 IEP was intended only to provide Learning Prep with an IEP outline for the Student. I find that the circumstances alerting the School to the Parents’ rejection of the program described in the three IEP documents at issue here outweigh the technicality of the father’s signature accepting the later produced IEP. To view it otherwise skirts the true nature of this dispute.
Similarly, the Parents urge me to find the School in noncompliance with a host of “conditions” they set out in a letter accepting the June 2002, IEP (S-40, P-15) and with the Amendment to that IEP developed in September 2002. (P-13, S-43, P-17, S-37) This position ignores the fact that the School is under no obligation to implement “conditions” not incorporated into an IEP and accepted by the Parents. Here the Parents never accepted an IEP containing the “conditions” they sought, e.g., use of models, communication with Parents, preferential setting, etc. (See ¶ 11, 8) The School’s implementation of many of the Parents’ requested modifications and accommodations reflects good educational practice rather than adherence to any technical or legal mandate. I cannot cite the School for failing to do what it was not obligated to do. Even were I to view this dispute through the noncompliance lens, the clear preponderance of the evidence shows that the Parents’ requested modifications went to parental communication and student paperwork issues rather to the substance of any service provision. Those requested modifications were, for the most part, either incorporated into an IEP or Amendment which was rejected by the Parents and therefore not a proper subject of a noncompliance review, or were actually being implemented in the Student’s daily program.
The issue here is simply whether Bellingham offered Odile a special education program which was reasonably calculated to assure personalized instruction and support services tailored to meet her unique needs and to permit her to make meaningful educational progress in the least restrictive environment. At the Team meetings in June 2002, there was substantial agreement that Odile needed a new type of educational program. Bellingham envisioned a supported foray into the mainstream of the public school. The Parents sought a segregated program outside of Bellingham. The record shows that, up to that point, Odile had made slow, but steady, progress in all areas in Bellingham’s substantially separate program.
The IEP proposed by Bellingham creates a highly individualized program for Odile. (¶ 7) It permits Odile supported access to the mainstream curriculum, activities and peers while still providing focused special education in targeted areas such as reading, language arts, mathematics and sensory processing. There is no persuasive evidence in this record to indicate that it was not calculated to ensure that Odile continue to make progress in the acquisition of academic, social, sensory, language and physical skills commensurate with her potential. Indeed, the IEP in great measure meets the recommendations of the neuropsychologists who evaluated Odile after it was developed. (Compare P-14, S-41 and P-13, S-43) It provides small group and individualized instruction in a resource room with a low student-teacher ratio. It continues the systematic reading program in which she made “good progress”. It offers occupational and speech-language therapies that exceed the recommended levels. It offers mainstream instruction. The Parents, according to their letter of July 23, 2002, had no substantive objection to the proposed program. Their concerns centered on mainstream classroom accommodations and parental communication. (S-40, P-15) These concerns were addressed, for the most part, in the proposed Amendment developed in September 2002. Although the Amendment was subsequently rejected by the Parents, the School did implement the classroom accommodations necessary to support the Student’s learning. Furthermore, although under no obligation to do so, the School did implement a weekly communication book for the Parents and regular staffing meetings to coordinate the Student’s program.
In addition, the evaluators’ and Parents’ concerns about program fragmentation and mainstream participation were addressed by permitting Odile to concentrate on one mainstream subject: science. I credit Ms. Hoyt’s testimony that the Parents requested that she concentrate on language arts and math instruction rather than introducing social studies into an already full schedule. I give their later objections to the lack of social studies instruction during the first semester of 2002-2003 little weight. I also note that the Parents’ educational consultant, Ms. Howard, made no recommendations for substantive programmatic changes to the IEP or its implementation. (S-34, P-23) Her recommendations went to the communication and coordination among school providers, and with the Parents, as well as some suggested technical IEP language changes. Ms. Howard’s recommendations were consistent with the Parents’ concerns. They were addressed, for the most part, in subsequent communication enhancement measures implemented by the School (e.g., regular notations in student agenda; staff meetings; detailed progress reports), and in the IEP developed in December 2002.
Finally, the evidence in this record shows that Odile made progress in all areas while attending Bellingham under the 2002-2003 IEP. (S-3; S-24, P-42; S-25, S-29; S-17, P-38; S-15, P-40; S-12; S-10, P-41; S-7, P-39; S-6, 8, 11, S-5; Samek, Hoyt, Morgan, Ferreira) There is no credible evidence to the contrary. The addition of a second mainstream class, social studies, to Odile’s schedule under the IEP proposed in December 2002, speaks to the success of the Student’s mainstream experience. (S-22, P-32)
I find that Bellingham has shown by the clear preponderance of the credible evidence in this record that its proposed 2002-2003 IEPs, along with the September 2002 Amendment, were designed to provide individually tailored and comprehensive special education services to Odile, to educate her to the maximum extent possible within the mainstream, and to permit her make meaningful educational progress. I further find that implementation of this IEP and program model did in fact afford the Student a free, appropriate public education and allow her to make demonstrable educational progress in the least restrictive environment consistent with that goal. While the Parents’ suggestions about classroom accommodations and home-school communication no doubt improved the delivery of special education services to the Student, they did not fundamentally alter the nature of the School’s otherwise appropriate program. To obtain public funding for a unilateral placement in an out-of-district private special education facility the Parents must demonstrate that the Student cannot be “satisfactorily” educated in a less restrictive environment with the use of supplementary aids and services. 603 CMR 28.06 (2)(f). See also: CMR 28.06 (2)(c); 20 U.S.C. § 1412 (a)(10)(c)(ii). They did not do so here. Therefore I do not reach consideration of the Parents’ proposed placement at Learning Prep.
ORDER
The IEP proposed by Bellingham in June 2002, along with the Amendment proposed in September 2002, were reasonably calculated to ensure a free, appropriate public education to Odile in the least restrictive setting. Similarly, the IEP developed by Bellingham in December 2002, and later functionally rejected by the Parents, was reasonably calculated to provide a free, appropriate public education to the Student in the least restrictive environment. The Parents are not entitled to reimbursement of expenses associated with their unilateral placement of the Student at the Learning Prep School in January 2003 through the end of the 2002-2003 school year.
Lindsay Byrne, Hearing Officer
1
“ Odile” is a pseudonym selected by the Hearing Officer to protect the privacy of the Student in publicly available documents.