COMMONWEALTH OF MASSACHUSETTS
Bureau of Special Education Appeals
In Re: Tali1 and Leicester Public Schools BSEA#04-3982
DECISION
This decision is issued pursuant to M.G.L. c. 71B and 30A, 20 U.S.C. § 1401 et seq ., 29 U.S.C. § 794, and the regulations promulgated under those statutes. A hearing was held on September 1, 2004, at the offices of Catuogno Court Reporting Services in Worcester, MA. Those present for all or part of the hearing were2 :
Mr. & Mrs. Parents
Ms. Grandmother
Doris Whitworth Principal, Primary School, Leicester Public Schools
Cynthia Quaglieri 2 nd Grade Teacher, Leicester Public Schools
Terry Young School Pyschologist, Leicester Public Schools
Kelly Kulla Special Needs Teacher, Leicester Public Schools
Jennifer Egdall Special Needs Teacher, Leicester Public Schools
Sarah Mahoney Speech-Language Pathologist, Leicester Public Schools
Maureen Ferguson Administrator of Special Education, Leicester Public Schools
Adam Kobel Attorney for Parents
Mary Ellen Sowyrda Attorney for School
Lindsay Byrne Hearing Officer, BSEA
The official record of the hearing consists of documents submitted by the Parents Marked P-1 through P-20; documents submitted by the School marked S-1 through S-25; and approximately six hours of recorded oral testimony and argument. Both parties submitted written closing arguments by October 5, 2004, and the record closed on that date.
A. Issues :
1. Whether the 2003-2004 Individualized Education Plan implemented by Leicester was reasonably calculated to ensure that Tali made effective educational progress commensurate with her potential in the least restrictive environment?
2. If not, are the Parents entitled to reimbursement for their unilateral placement of Tali in the Lindmood-Bell Program in May 2004?
B. Summary of the Evidence
1. Tali is a nine year old student who has received special education services through the Leicester Public School since being found eligible in kindergarten due to developmental delay. (S-3; Young; Egdall; S-11, 12, 13) She is described as a pleasant and happy child with below average cognitive skills, and language and academic delays consistent with that finding. According to her teachers Tali appears unfocussed and unmotivated in most school activities. She has significant difficulty retaining material and skills, difficulty correlating sounds and symbols, and difficulty sequencing. Tali needs direct teacher assistance with all aspects of learning. She needs constant repetition, reinforcement, visual cuing and prompting. Even with structured direct teaching Tali’s progress toward acquisition of basic academic skills is very slow and very inconsistent. Her skills may vary day to day and from activity to activity within a day. (Egdall, Mahoney, Kulla, Quaglieri) In February, 2004, midway through her second grade year, her teachers reported that Tali had incomplete alphabet and numeral recognition skills, could not consistently count from 1-10, could identify the sounds for 19 of 26 letters, was unable to complete age appropriate mazes or puzzles independently, or to consistently follow two step directions. (S-20, 21) At the same time Tali’s mother reported that Tali read and completed homework without difficulty at home, and had taught her younger sibling the alphabet. (Mother)
2. During Tali’s kindergarten year, 2001-2002, the Team reported that Tali could identify 2 of 20 numbers, 4 of 26 letters and 1 of 26 sounds. Her accepted IEP provided for thirty minutes a day of special education support in the mainstream classroom, as well as one hour daily of special education assistance outside the classroom. Tali also received occupational and speech/language therapies twice per week. (S-2; See also S-11, 12, 13)
3. For the first grade year, (2002-2003) Tali’s in classroom special education support was increased to one hour daily. School testing during the fall, 2002, showed that Tali functioned in the “well below average” range of cognitive skills and demonstrated academic achievement consistent with that learning profile. (S-9, S-10) Terry Young, the school psychologist for Leicester who administered the psychometric testing, testified that the results indicate that Tali has limited ability to learn new information and is unable to learn the standard academic curriculum within a standard academic year. Ms. Young recommended an intensive remedial program for Tali which acknowledged her slow rate of learning, prioritized and sequenced the desired curriculum components, and presented material in a direct, multisensory fashion with constant repetition, practice and review. (Young) There is no other expert information or objective data concerning Tali’s cognitive profile in this record. There are no contrary or supplemental educational recommendations in the record. (See also S-7, 8)
4. The Team reconvened on February 14, 2003, midway through Tali’s first grade year. The Team developed an IEP which immediately increased the intensity of the special education support Tali received by adding an additional 45 minutes per day of special education math instruction and 60 minutes per day of special education reading instruction outside of the classroom. Tali’s program included a six week summer component. The Parents accepted the IEP. (P-1, S-2)
5. Jennifer Egdall, Tali’s special education teacher for kindergarten and second grade, testified that Tali did not meet any of the academic goals listed on her IEP during her first grade year. (2002-2003; See P-1, S-2) She stated that Tali did make some progress, but that it was very slow and very inconsistent so it was hard to measure. (Egdall) Sarah Mahoney, the speech-language pathologist who worked with Tali during the first and second grades, testified that Tali did achieve some of the speech and language goals during her first grade year, in particular those pertaining to size concepts, ‘WH’ questions, beginning possessive pronouns, and following simple two step directions. (Mahoney; See confirming testimony of Kulla, Quaglieri)
6. For Tali’s second grade year, 2003-2004, Tali received substantially separate academic instruction individually or with one other student three hours per day. She was mainstreamed into the 2 nd grade classroom with a special education teacher for one hour per day. She continued to receive twice weekly occupational and speech language therapies. (P-1, S-2; Egdall, Kulla, Maloney, Quaglieri) Her progress toward her academic goals remained slow and inconsistent. Letter and numeral recognition remained incomplete. Recognition of sound-symbol relationships, though improved, did not cover the entire alphabet. By mid-year Tali could not count sets of objects past five. (P-4, S-22, 21, 20) Ms. Mahoney testified that Tali’s progress toward achievement of the speech and language goals was slow and inconsistent in keeping with her disability. (Mahoney) Ms. Egdall, who provided the pullout special education instruction testified that Tali’s academic progress is at a low level, slow and inconsistent, but commensurate with her potential for learning. (Egdall) Ms. Kulla who provided direct special education services to Tali both in the summer program and in the second grade classroom testified that the special education services delivered under her IEP were appropriate for Tali. (Kulla) Ms. Quaglieri, the 2 nd grade classroom teacher, testified that Tali’s progress was appropriate given her cognitive limitations. (Quaglieri; See also S-15-22, P-4, P-19, P-9) There is no contrary evidence in the record.
7. The Team reconvened on February 4, 2004. The Team discussed Tali’s slow rate of progress. The Parents requested more inclusion in the mainstream, but also indicated they were interested in exploring other programs. Maureen Ferguson, special education director and chair of the Team meeting, testified that she told the Parent to take a look at other available programs such as the Oxford Collaborative and the Mercy Center for comparison purposes, but that she never agreed to an alternate placement as the Team decision was that Tali could receive a free, appropriate public education in Leicester. (Ferguson) The mother testified that she understood that she was to look into other potential placements because “nothing was working”. She testified that she thought once she found a program “acceptable to the Parent” Tali would be moved to it and Leicester would pay for it. The mother did observe several nearby programs but was not satisfied with them. (Mother) Based on my observations of the witnesses, and the corroborating testimony of other Team participants, I credit Ms. Ferguson’s version of this exchange. (See also testimony of grandmother)
8. The mother also testified that at the Team meeting in February 2004, she asked the school to conduct comprehensive educational testing of Tali, and that Ms. Ferguson refused. None of the other Team members remembered that parental request. (Edgall, Mahoney) There is no written request for evaluations in the record. When presented with consent forms to conduct an evaluation during the summer, 2004, the Parents refused. Therefore I resolve this dispute in favor of the School and find that no parental request for school conducted or provided evaluations was appropriately communicated to the School in February 2004.
9. At the February 4, 2004, meeting the Team developed an IEP continuing the same type and level of special education service to Tali for the remainder of her 2 nd grade year. For the third grade, at the Parents’ request, the IEP provided for greater inclusion in the mainstream by shifting four and one half hours of her special education service to the mainstream 3 rd grade class. In addition to the enlarged presence of the special education teacher, and multiple curricular and presentation modifications in the third grade classroom, Tali would have a dedicated one-to-one aide. (S-1, P-7) The mother testified that she was grossly dissatisfied with the proposed plan and did not respond to it. (Mother) The record shows that the Parent rejected the proposed plan on March 12, 2004. (See also P-8)
10. Meanwhile the Parents continued to be unhappy with the pace of Tali’s progress and with what they reported as the difference between poor in school performance and substantially more age appropriate functioning within the home. At the suggestion of their pediatrician, they arranged for a Central Auditory Processing Evaluation at the University of Massachusetts Memorial Medical Center. The evaluation was conducted in January and February 2004, by Tina Corderre, a speech-language pathologist. Ms. Corderre noted that many tests could not be completed due to Tali’s poor comprehension of directions and language concepts. The examiner therefore questioned the validity and reliability of her CAP evaluation. Nonetheless Ms. Corderre found Tali to have a Central Auditory Processing Disorder and made several recommendations concerning her educational program, including: preferential setting, quiet work environment, ensuring Tali’s attention before beginning instruction, previewing information, and breaking instruction into short tasks. She also recommended a trial of a personal FM system. (P-3, S-6) Ms. Mahoney testified that only an audiologist, not a speech/language pathologist is qualified to render a diagnosis of Central Auditory Processing Disorder. There is no contrary evidence in the record. Given the examiner’s own doubts, as reported in the assessment record, about the validity of her testing, coupled with her dubious authority to diagnose CAPD, I accord the assessment minimal weight. I also note that all of the presentation and curricular modifications and accommodations recommended by Ms. Corderre appear in Tali’s IEP and were being implemented. (Compare P-3, S-6 and S-1, P-7; Quaglieri, Egdall)
11. At the same time the mother continued to look for alternative programming for Tali. She arranged to have Tali evaluated by Lindamood-Bell Learning Practices in Arlington, MA. Tali was accepted into the program on April 8, 2004.
12. The mother met with the Principal of the Leicester Primary School, Doris Whitworth, on April 15, 2004. The mother gave the principal the Lindamood-Bell letter of acceptance and the financial disclosure forms and stated that Tali would be attending the Lindamood-Bell program full time beginning May 3, 2004. Ms. Whitworth testified that she told the mother she would pass the forms along to the special education director, Ms. Ferguson, and warned her that the School had not agreed to fund the Lindamood-Bell program for Tali. Ms. Whitworth also made arrangements to lengthen the school day for Tali’s younger sibling to accommodate the family’s transportation needs. (Whitworth) The family did not write a formal letter to Leicester indicating their intent to remove Tali from the public school program and requesting school funding of the alternate placement. The family did not request a Team meeting. The family did not contact the special education director directly about Tali or the Lindamood-Bell program in the spring, 2004. (Mother, Ferguson)
13. The Team reconvened on May 13, 2004, to discuss the Central Auditory Processing Evaluation conducted by Ms. Coderre. (P-10, 11, 12, 13) The Team had doubts about the validity of the diagnosis of Central Auditory Processing Disorder, but accepted all the recommendations for intervention. (Quaglieri, Mahoney, Ferguson) The Parents asked for School funding of the Lindamood-Bell placement. Ms. Ferguson noted that there were no recommendations for an alternative placement before the Team and declined the Parents’ request. (Ferguson; Parents)
14. The Parents acknowledge that at no time did any of the Leicester School personnel indicate that school funding of the Lindamood-Bell program was possible. (Mother, Father)
15. Myia Kuykendall of the Lindamood-Bell program testified that Tali began the program on May 3, 2004, and attended for 4 hours per day, five days a week for 12 weeks. The Lindamood-Bell program is a highly specialized, highly structured, language and reading development program which provides intensive, targeted, individualized tutorials designed to address a student’s demonstrated weaknesses in phonemic awareness and sequencing, language imaging, comprehension and expression. It is not a school. Lindamood-Bell develops the sensory-cognitive skills to access curriculum. It does not provide the curriculum. It did not follow the IEP developed by Leicester for Tali. No IEP was developed, or was in place, as a result of Tali’s attendance in the Lindamood-Bell Program. (Kuykendall)
Ms. Kuykendall testified that Tali functioned at a level lower than her entrance assessment would have indicated. Initially Tali’s language comprehension was so poor that she could not comprehend the questions. The tutors worked on extremely basic language awareness. Over the course of twelve weeks Tali demonstrated “very, very slow” and inconsistent acquisition of skills. Though there was “some” improvement in raw test scores, her test percentile rankings did not change as a result of the intensive language remediation provided in the Lindamood-Bell program. (Kuykendall); P-19, 20)
Findings and Conclusions
There is no dispute that Tali is a student with special learning needs as set out in 20 U.S. C. § 1401 et seq . and is thus entitled to receive a free, appropriate public education. The issue presented for decision here is whether Leicester Public Schools was fulfilling its obligation to provide a free, appropriate public education to Tali in the spring, 2004? After careful consideration of all the evidence produced at this hearing, and the thoughtful arguments of counsel for both parties, it is my determination that it was. Therefore, the Parents are not entitled to reimbursement for expenses associated with Tali’s attendance at the Lindamood-Bell program in the spring, 2004. My reasoning follows:
The evidence in this hearing demonstrates that during the 2003-2004 school year, Tali was receiving the special education services recommended by her teachers and therapists and memorialized in her accepted IEP. (S-1, P-7) There are no recommendations in the record for services of a different kind, different level, different focus, different pace, different intensity or different setting. All of Tali’s service providers testified that she was making extremely slow progress in the acquisition of basic academic skills, but that her progress was consistent with her cognitive potential. There is no contrary conclusion in this record. All of Tali’s service providers stated that the 2003-2004 IEP was appropriately meeting Tali’s educational needs and that the 2004-2005 IEP proposed by Leicester could continue to do so. There are no professional opinions in this record to the contrary.
The Parents argue that Tali’s slow rate of progress in Leicester’s special education program indicates that the program is inappropriate for her. They contend that Leicester’s past special education programs have failed to confer a “meaningful benefit” on Tali as shown by the inclusion of substantially similar goals on three successive IEPs and Tali’s minimal progress toward achievement of those goals. Failure to achieve goals set out on an IEP may indeed indicate an inappropriate program, or inappropriate goals, or both. Here, however, all service providers agreed that the goals set out in Tali’s IEPs address fundamental academic skills which are as relevant for her today as they were when they first formulated three years ago. The providers uniformly testified that Tali’s progress toward acquisition and retention of new skills is slow and inconsistent, but is still progress. They noted some of the smaller components of the goals, the objectives, had been achieved over time, particularly in the language area. They agreed that Tali’s measured academic progress is consistent with her potential for learning new skills. No service provider recommended altering the goals, changing the type or amount of educational intervention, or attempting a different program. A review of the progress reports submitted by Tali’s service providers and teachers throughout the past three years corroborates their testimony. (Quaglieri, Egdall, Kulla, Mahoney; See also: P-4, S-22; S-19, P-9; S-15, 16, 17, 18, 20, 21)
The Parents rely on the Central Auditory Processing Evaluation (S-6, P-3) to support their argument that Leicester failed to properly diagnose and program Tali. That reliance is misplaced. Even were I to accord the CAP evaluation substantial weight (see ¶¶ 10) it does not offer any new insights into Tali’s educational functioning nor does it recommend any techniques or services to meet Tali’s identified needs that are not already being provided by Leicester. In particular, the CAPD Assessment does not recommend Tali’s enrollment in an alternate program such as the Lindamood-Bell program.
There is no persuasive evidence in this record that the special education program developed and implemented by Leicester was inappropriate or inadequate for Tali. Therefore I find that the clear preponderance of the evidence supports the conclusion that Tali was making educational progress commensurate with her potential during the 2003-2004 school year and that it is more likely than not that Tali would have continued to make “reasonable” progress toward attainment of the IEP goals in the spring of 2004, and to receive a meaningful educational benefit from the Leicester special education program.
On the other hand there is no evidence in this record that the Lindamood-Bell program in which the Parents enrolled Tali in May 2004, provided the type and amount of services recommended by educational evaluators. While Ms. Kuykendall described it as an intensive foundational language intervention program, she acknowledged that the Lindamood-Bell program is not a school, does not provide a comprehensive curriculum or access to non-disabled peers, and did not produce measurable progress in literacy skills for Tali3
To the Parents, Tali’s excruciating slow rate of progress in school must be both frustrating and disheartening, especially when they see a “different” child at home. Nevertheless without solid evidence of Tali’s potential to acquire age appropriate academic skills, more quickly or more comprehensively than she currently does, there is no support in the record for a change in Leicester’s special education program for her. Consequently there is no justification, in this record, for the Parents’ decision to remove Tali from her special education placement and enroll her in the Lindmood-Bell program. Reimbursement of parental expenses for a unilateral special education placement is an equitable remedy which is available only when parents can prove that a school district has failed to provide a free, appropriate public education to their eligible student. The Parents here have not made such a showing.
Order
The 2003-2004 Individualized Education Plan implemented by Leicester Public Schools was reasonably calculated to ensure that Tali made effective educational progress commensurate with her potential in the least restrictive environment. As Leicester provided and offered a free, appropriate public education to Tali throughout the 2003-2004 school year, the Parents are not entitled to reimbursement of expenses associated with their unilateral placement of Tali in the Lindamood-Bell program in May 2004.
By the Hearing Officer,
____________________________
Lindsay Byrne, Hearing Officer
1
“Tali” is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in publicly available documents.
2
By Agreement of the parties, Myta Kuykendall participated in a portion of the hearing by telephone.
3
Other issues concerning the Parents’ unilateral placement in the Lindamood-Bell program were raised by the School. In particular the School argued that the Parents’ lack of notice to Leicester of their intent to remove Tali from the Leicester Public Schools would defeat their claim for reimbursement. See : 20 U.S.C. 1412(a)(10)(c), 34 CFR 300.403 (c) and (d). See also : Ms. M. v. Portland School Committee , 360 F. 3d. 267 (1 st Cir. 2004); Greenland School Committee v. Amy N. , 358 F. 3d. 150 (1 st Cir. 2004). Due to the predicate finding in favor of the school I do not reach these issues.