Special Education Appeals BSEA #99-2985
COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF EDUCATION
BUREAU OF SPECIAL EDUCATION APPEALS
IN RE: North Middlesex Regional School District BSEA# 99-2985
This decision is rendered pursuant to M.G.L. Chapters 15, 30A and 71B; 20 U.S.C.§1400 et seq .; 29 U.S.C. §794; and all of the regulations promulgated under each of these statutes.
A hearing in the above-entitled matter was held on April 1, 1999 at the Massachusetts Department of Education in Malden, MA. The record remained open for the receipt of written final arguments until April 20, 1999.
Those in attendance were:
Maureen Donatelli Speech Pathologist, Lipton Early Intervention Program
Daniel Joyce Attorney for Parents
Susan Alinovi 766 Administrative Chairperson, North Middlesex Regional School District
Karen Ryden Speech Pathologist, North Middlesex
Shelley Amari Special Education Preschool Teacher, North Middlesex
Thomas Nuttall Attorney for North Middlesex Regional School District
Raymond Oliver Hearing Officer, Bureau of Special Education Appeals
The evidence consisted of Parents’ Exhibits labeled P-A through P-G; North Middlesex Regional School District’s Exhibits labeled S-1 through S-13; and approximately 2 1/4 hours of oral testimony.
STATEMENT/CHRONOLOGY OF THE CASE
Student is a three year old child who resides with his parents in a town served by the North Middlesex Regional School District (North Middlesex). Student turned 3 in late February 1999.
In April 1998, at age 25 months, Student was evaluated by the Lipton Early Intervention Program (EIP) via an Assessment/Developmental Profile (P-F; S-10). As a result of this EIP evaluation, Student began a weekly language group (testimony, Donatelli). In August 1998, at age 30 months, EIP had Student independently evaluated (P-G; S-5). As a result, weekly individual speech therapy was added to the weekly language group (testimony, Donatelli) and EIP made a referral to North Middlesex for a team evaluation for Student (P-D; S-9). In December 1998 Parents signed a consent form for Student to be evaluated by North Middlesex (S-7). In January 1999 North Middlesex performed an educational assessment (P-E; S-3); a speech and language assessment (P-E; S-4); and a home assessment (S-13). Parents filled out an Early Screening Inventory Parent Questionnaire (S-12) and Student’s pediatrician filled out a medical assessment form (S-11).
On January 28, 1999 a team meeting took place with a finding of no special needs (S-2). On February 2, 1999 Student’s pediatrician sent a letter to North Middlesex supporting speech therapy for Student (P-B). On February 3, 1999 Student was independently evaluated (P-A; S-1). On February 5, 1999 Parents requested a hearing before the BSEA. A pre-hearing conference was held on March 2, 1999 but settlement was not possible and the case proceeded to hearing on April 1, 1999.
ISSUES IN DISPUTE
I. Does Student require special education services under state or federal special education law?
II. Is Student eligible for a Section 504 Accommodation Plan?
STATEMENT OF POSITIONS
Parents’ position is that Student requires speech therapy services as a special education student under state and federal special education law. Parents also contend that Student is eligible to receive a 504 Accommodation Plan. Under special education law (M.G.L. c.71B and 20 U.S.C. § 1400 et seq .) and/or Section 504 (29 U.S.C. § 794) Parents contend that North Middlesex should provide Student with speech therapy services.
North Middlesex’s position is that Student does not meet the eligibility criteria for the receipt of special education services under state or federal special education law. North Middlesex also contends that Student does not meet the eligibility criteria for an Accommodation Plan under Section 504.
PROFILE OF STUDENT
Student was first evaluated by EIP in April 1998 when he was 25 months old (P-F; S-10). This evaluation covered the areas of perceptual skills, fine motor skills, gross motor skills, self care skills, cognitive skills, communication skills, social/emotional/interactional skills and visual/hearing skills. The evaluation’s summary and recommendations were as follows:
Student’s skills are all above age appropriate, except for his expressive language. It is recommended at this time that he begin language group weekly, where his development of spoken language will be carefully monitored.
Student was independently evaluated via EIP by Valerie Chase M. Ed., CCC-SP in August 1998 when he was 30 months old (P-G; S-5). This evaluation covered the areas of cognition, communication, social/emotional interaction and vision/hearing. Ms. Chase’s evaluation summary and recommendations were as follows:
Student demonstrates age appropriate skills in all area with the exception of expressive language, which approximates the 24 month level. It is recommended that Student continue to attend language group weekly and receive individual speech therapy services weekly. Referral will be made to the public schools.
Student was educationally evaluated by North Middlesex in January 1999 when he was 2 years, 11 month old (P-E; S-3). His educational assessment covered the areas of cognition, perception, fine motor skills and gross motor skills. Ms. Amari, the North Middlesex pre-school teacher and evaluator, found in her summary and recommendations as follows:
… The results for the education evaluation indicate that Student has age appropriate cognitive, fine and gross motor skills. In addition, during the testing and observation, Student demonstrated age appropriate social skills. Therefore, no integrated preschool services are recommended at this time…
Student was also evaluated in speech/language by North Middlesex in January 1999 (P-E; S-4). Ms. Ryden, North Middlesex’s speech–language therapist, who is a Massachusetts licensed speech language pathologist and has her certificate of clinical competency from the American Speech, Language and Hearing Association (CCC from ASHA), found in her summary and recommendations as follows:
Student is a 2 year 11 month old boy who demonstrates age appropriate receptive language skills. Expressive skills are weaker and may be affected by his phonological difficulties. Articulation skills appear to be mildly delayed. Based upon the results of this evaluation and that there are no other special needs, no school based intervention is recommended at this time.
Student was independently evaluated in early February 1999, again by Ms. Chase, when he was 2 years 11 months old (P-A; S-1). This evaluation covered the areas of cognition, perception, communication, vision/hearing, fine motor skills, gross motor skills and self care skills. Ms. Chase found in her evaluation summary and recommendations as follows:
Student is a 35 month old boy who demonstrates age appropriate skills in gross and fine motor development, cognition, social/emotional and receptive language. Expressive language is well developed in terms of semantic and syntactic skills, however, motor speech production is significantly impaired during spontaneous speech. Conversation is markedly unintelligible if a listener is unfamiliar with the context of his uttererances. Numerous phonological process errors impair intelligibility and result in frustration and reluctance to continue speaking. It is recommended that Student continue to receive speech intervention to reduce process errors and increase communicative abilities with both adults and peers.
FINDINGS AND CONCLUSIONS
Based upon the testimony and written documentation introduced into evidence and a careful review of the applicable law, I conclude that:
I. Student does not require special education services under state or federal special education law;
II. Student does not meet the criteria for a Section 504 Accommodation Plan.
My analysis follows.
603 CMR 28. 104.0(a) defines a “child in needs of special education” as:
a child, because of a disability consisting of a developmental delay or an intellectual, sensory, neurological, emotional, communication, physical, specific learning or health impairment or combination thereof, is unable to progress effectively in regular education and requires special education services in order to successfully develop the child’s individual educational potential.
603 CMR 28.104.0(b) (ii) defines “To progress effectively in regular education” as:
To make documented growth in the acquisition of knowledge and skills, including social/emotional development, within regular education according to chronological age and the individual educational potential of the child. For purpose of this definition regular education includes early childhood, preschool, academic, non-academic, and vocational programs and activities. Emphasis added.
M.G.L. Chapter 71B Section 2 provides, in pertinent part, as follows:
Admission to such programs (programs for children with special needs) on the pre-school level at an earlier age than at which schooling is ordinarily provided shall be regulated by the department (of education) in conjunction with the department of public health and mental health and shall be restricted to children with substantial disabilities who are judged by said departments to require such programming. Emphasis added.
Based upon the above cited statutory and regulatory provisions and based upon the testimony and documentation introduced into evidence, I do not find Student be a child in need of special education. As a 3 year old child, Student demonstrates age appropriate skills in gross and fine motor development, cognition, social/emotional development, and receptive language. Even his expressive language is well developed in terms of semantic and syntactic skills. His sole area of weakness is in the area of articulation/motor speech production/phonological processing. (See PROFILE OF STUDENT, above; testimony, Donatelli; Ryden).1
Even in this specific speech area Ms. Donatelli, Student’s speech therapist in the EIP group and 1:1 settings, testified that Student’s speech is understandable in structured and contextual settings but that intelligibility decreases in unstructured, spontaneous communications. (See testimony, Donatelli). Further, Ms. Ryden, North Middlesex’s speech-language pathologist who evaluated Student, testified: 1) that even his articulation skills and production of sounds fell within the average percentile range for single words which appeared to be age appropriate; 2) that he demonstrated a mild speech impairment due to his somewhat reduced intelligibility in spontaneous, connected speech; 3) that when such speech was unintelligible, if asked to repeat it, Student’s speech production improved; and 4) that developmentally Student’s articulation in connected speech was intelligible 60% of the time over all contexts and she would expect a typical 3 year old to be intelligible about 80% of the time. (See testimony, Ryden).
In summary, I conclude that while Student has a mild disability in the area of articulation/motor speech production/phonological processing, under applicable state and federal special education law, such disability does not mandate the provision of special education services pursuant to an Individual Education Plan (IEP) by North Middlesex. There has been no evidence presented that Student is/will be unable to progress effectively in regular education or that Student is/will be unable to make documented growth in the acquisition of knowledge and skills, including social/emotional development, within regular education according to chronological age and the individual educational potential of the child. Pursuant to M.G.L. c. 71B s.2, I conclude that Student clearly does not have the substantial disabilities necessary for children to be admitted to a special needs program at a pre-school level.
29 U.S.C. § 794 (Section 504 of the Rehabilitation Act of 1973) provides, in pertinent part:
No otherwise qualified handicapped individual in the United States, as defined in section 706 (8) of this title, shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance…
29 U.S.C. § 706 (8) defines an individual with a handicap as any individual who:
has a physical or mental impairment which substantially limits one or more of such person’s major life activities, has a record of such impairment, or is regarded as having such an impairment.
The Section 504 regulations at 34 CFR 104.3 (k)(2) defines qualified handicapped person:
With respect to public preschool, elementary, secondary or adult educational services, a handicapped person (i) of an age during which nonhandicapped persons are provided such services, (ii) of an age during which it is mandatory under state law to provide such services to handicapped persons, or (iii) to whom a state is required to provide a free appropriate public education under Sec. 612 of the Education of the Handicapped Act ( now renamed the Individuals with Disabilities Act) … Emphasis added.
Pursuant to M.G.L. c. 76 s.1, the minimum mandatory age for school attendance in Massachusetts is 6 years of age. Therefore, unless a student qualifies for special education services under M.G.L. c.71B or 20 U.S.C. § 1400 et seq ., no school system is mandated to provide educational services to any child under age 6. School systems may voluntarily provide educational services to children under age 6, and if they do so, they must make such educational services available to all children, including children with disabilities, within their jurisdiction. The testimony of Ms. Amari and Ms.Ryden demonstrates that North Middlesex provides kindergarten services for all children at 5 years of age; and that there is no entitlement for regular education students to receive educational services prior to age 5 in North Middlesex. (See testimony, Amari; Ryden).
Based upon the above cited statutory and regulatory provisions, the testimony presented, and my FINDINGS AND CONCLUSIONS in Section I above, I conclude that Student is not entitled to a 504 Accommodation Plan. Student is not a special education student under state or federal special education law. At 3 years of age, since he is not entitled to special education services under an IEP, he does not meet the age criteria (5 years of age) for a 504 Accommodation Plan in
North Middlesex. Section 504 is a non-discrimination statute. North Middlesex is not discriminating against Student since he is being treated as are all other 3 year old children residing within North Middlesex who are not special education students.
By the Hearing Officer,
Dated: May 24, 1999
Although Parents testified that Student also has gross motor disabilities, all parental, EIP and North Middlesex evaluations find Student’s skills in the gross motor area to be age appropriate. (See PROFILE OF STUDENT, above).