COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Salem Public Schools
BSEA #01-5383
DECISION
This decision is issued pursuant to 20 USC Sec. 1400 et seq (Individuals with Disabilities Education Act), 29 USC Sec. 794 (Section 504 of the Rehabilitation Act); MGL c. 71B (the Massachusetts special education statute; “Chapter 766”); MGL ch. 30A (the Massachusetts Administrative Procedures Act), and the regulations promulgated under these statutes.
A hearing was held on November 7, 9, 19 and 20 in Malden, MA before Sara Berman, Hearing Officer. Those present for all or part of the proceeding were:
Student’s father
Student’s mother
Student
Kathleen Curtis: Assistant Director, Pupil Personnel Services, Salem Public Schools
Susan Pippin High School Coordinator/Psychologist, Salem Public Schools
Lorraine Badolato Out-of-District Coordinator, Salem Public Schools
Barbara Grab Reading Teacher, Salem Public Schools
Janice Kalp Reading Teacher, Salem Public Schools
Sharon Maguire Guidance Counselor, Salem Public Schools
Mary Cobb Special Education Teacher, Salem Public Schools
Maureen Roche High School Art Teacher, Salem Public Schools
Dr. Robert Kemper Clinical Psycholinguist, Psycholinguistic Associates, Inc.
Jody Gray Director, Commonwealth Learning Center
Elizabeth Mack Psychologist, Educational Advocate for Student/Parents
Debra Highberger Student’s private art teacher; owner, Acorn Galleries.
John Lamont, Esq. Attorney for Parents and Student
John Keenan, Esq. Attorney for Salem Public Schools
The official record of the hearing consists of documents submitted jointly by the parties, marked as Exhibits 1 through 51 and entered in the record as Exhibits J-1 through J-51); and approximately ten hours of tape recorded oral testimony and argument. The parties presented oral closing arguments in lieu of post-hearing briefs on November 20, 2001, and the record closed on that day. An Order in this case was issued on January 17, 2002, which is incorporated by reference in this Decision.
ISSUES PRESENTED
1. Is the IEP proposed by the Salem Public Schools for the period from September 2001 through June, 2002 reasonably calculated to assure Student’s maximum feasible educational development in the least restrictive environment consistent with that goal?
2. Are Parents/Student entitled to reimbursement for Student’s unilateral placement at the Commonwealth Learning Center in (CLC)?
3. Are Parents/Student entitled to compensatory services for Student?
POSITION OF PARENTS AND STUDENT
Student is an intelligent, talented, and conscientious young man who has severe dyslexia and related language-based learning disabilities. Despite seven years at Landmark School, Student still does not have the reading, listening, speaking, and writing skills he needs to achieve his goal of attending art college. In addition, Student requires math instruction. Student requires two years of intensive, integrated 1:1 instruction in literacy/language and math skills to achieve literacy skills commensurate with his needs and potential. Salem’s proposed IEP for 2001-02 is not appropriate for Student because it does not offer sufficient 1:1 instruction and does offer services in classroom settings that will not meet Student’s needs. On the other hand, the Commonwealth Learning Center (CLC) can provide Student with such a program. Parents/Student should be reimbursed for the costs of Student’s tutoring CLC from March 2001 to date. Finally, Student is entitled to compensatory educational services based on Salem’s failure to provide him with FAPE after June of 2000.
POSITION OF SALEM PUBLIC SCHOOLS
The Salem Public Schools (Salem or School) does not dispute Student’s profile; however, Salem’s proposed IEP for 2001-02 is likely to afford Student maximum benefit in the least restrictive environment. Under Salem’s IEP, Student would receive 1:1 instruction in literacy skills as well as classroom instruction in English and study skills, guidance/vocational counseling, speech/language therapy and art. The program at CLC is overly restrictive for Student in that it provides little or no peer contact. Additionally, the CLC program provides no instruction in art, which is an area of great strength for Student, no vocational or counseling component, and is not a Chapter 766 approved program.
SUMMARY OF THE EVIDENCE
1. Student is twenty years old (DOB 7/26/81) and lives with his parents in Salem. Student’s parents, former teachers at Landmark School, evaluators, and art teacher describe him as an intelligent, conscientious, motivated and responsible young man. He has many friends and relates well with others. (Mother, Father, Student, Kemper, Highberger, Mack ).
2. Student is a talented and accomplished artist. In addition to art classes at Landmark, he has studied art privately, with the Acorn Gallery in Salem, since he was twelve years old. For approximately five years, Student also has taught children’s art classes at the Acorn Gallery (Mother, Highberger, Student). In addition to fine arts, particularly painting, Student’s interests include graphic, industrial and automobile design and small engine repair. (Student) One of Student’s goals is to attend an art college. He is particularly interested in the Savannah College of Art and Design in Savannah, GA. Student also is interested in running his own business. (Student).
3. Student has severe dyslexia with underlying language-based deficits, including a phonological processing disorder.1 (Kemper, Gray, Mack, J16, J24) Student’s dyslexia and related language disorders have significantly interfered with his ability to read, speak, listen and write at a level commensurate with his age and intellectual ability. (Kemper, Gray, J-15, 16) Despite high intelligence, and seven years as an exemplary student at the Landmark School,2 Student still does not have adequate literacy and language skills for college,3 art schools, or most job training programs. (Kemper, Gray, Highberger, Mother, Student) In August 2001, for example, when Student was 20 years old, his scores on the Woodcock Reading Mastery Test were: word identification, G.E. 4.4 (1 st percentile); word attack, G.E. 5.7 (8 th percentile). (Gray, J47)
4. Student attended the Landmark School as a day student from approximately September 1993 until June 2000, when he had earned enough credits for a Salem High School diploma. The parties have disputed the appropriate placement and services for Student from June 2000 forward, and Student has not been in an educational program operated or funded by Salem since that date. (Student, Mother)
5. Instead, from March 26, 2001 to date, Student has been enrolled in a tutoring program, at his family’s expense, at the Commonwealth Learning Center (CLC) in Danvers, MA. The CLC is a private, non-profit facility learning center which provides tutorial services, usually on a one to one basis, for children and adults with learning disabilities. (Gray) CLC uses a variety of methodologies to instruct students whose disabilities impair reading, including LIPS and Project Read. CLC is not Chapter 766 approved; however, on a few occasions, school districts have funded students’ CLC placements. (Gray) Up to the date of hearing, Student was receiving instruction4 approximately twice weekly in the Lindamood Phoneme Sequencing Program (LIPS), pre-reading program that teaches students how to discriminate, manipulate and sequence speech sounds by learning the oral-motor components of the sounds, on the theory that the students will subsequently be able to better utilize reading programs like Wilson or Orton-Gillingham. (Id., Kemper, Gray, Student, J1, 6, 7, 16)5 Jody Gray, Director of the CLC program in Danvers, predicted that Student would finish the LIPS program by around mid-December 2001, and should then begin a rules based reading program such as Wilson reading. (Gray, Mother, Student) .
6. In addition to attending the CLC, student works 40 to 45 hours per week as an assistant in an auto body shop, has continued his part-time job teaching art on weekends, has assisted his father in a family landscape business, and has taken non-credit, open enrollment community college courses in keyboarding and landscaping. Student attempted to enroll in community college courses for credit, but was rejected because his reading and writing skill levels were too low. (Student, Mother)
7. Student attended the Salem Public Schools from kindergarten through fifth grade, and received special education services within the public school setting. (Mother) At the beginning of his sixth grade year (SY 1993-94), Student entered the Landmark School as a day student, pursuant to an IEP issued by the Salem Public Schools. He attended Landmark for the next seven school years, until June of 2000. (Mother, Student, J-1)
8. When Student entered Landmark in 1993, at the age of twelve, he was essentially a non-reader. (Mack, Mother) Student’s mother testified that Student could not take a written telephone message. (Mother) Student’s IEP for the 1994-95 school year, drafted in May of 1994, listed Student’s areas of weakness as basic language skills ( i.e ., decoding, encoding, contextual reading, written output, and ability to follow oral directions) and expressive language skills (i.e., word retrieval, response latencies, circumlocution, disorganization and vocabulary). (J-14) Standardized testing conducted that same month yielded grade equivalencies of less than 1.9 in reading rate and accuracy (Gray Oral Reading Test –3 (GORT)) and 2.0 and 2.2, respectively, in word identification and word attack (Woodcock Reading Mastery Test-R). (J-14) Although math was a relative strength for Student, his August 1993 grade equivalency scores on the Stanford Math test ranged from 1.2 to 2.7 (1 st through 21 st percentiles) when the test was timed, and 1.8 to 3.8 (3 rd through 45 th percentile) untimed. (J-14)
9. While at Landmark, Student received daily, one-to-one language arts tutorials in which he received individualized instruction and remediation in language skills, as well as daily small-group instruction in language arts and oral expression. (J-1, 10-14)
10. In September 1995, Landmark staff administered the Lindamood Auditory Conceptionalization (LAC) Test, which revealed that Student could not consistently detect differences or changes among speech sounds within spoken syllables. (Phonology Diagnostic Report dated October 20, 1995 (J7)) To address this skill deficit, Landmark incorporated into Student’s tutorials “intensive phonological training for the purpose of establishing firm sound-symbol relationships as they relate to decoding” ( Id .), using a Lindamood curriculum entitled Auditory Discrimination in Depth. ( Id .) Now entitled “LIPS”,
11. Student received LIPS instruction in his daily tutorials during the 1995-97 and 1996-97 school years, and measurably improved his auditory discrimination skills. In September 1995, Student’s raw score on the LAC Test was 69, which was below the third grad/e level in the skills measured, and well below the “recommended” raw score of 99 for Student’s age and grade level.6 In May 1997, his raw score had risen to 100, one point above the recommended minimum of 99. (LAC Test reports for June 4, 1996 (J7) and May 23, 1997 (J6))
12. Notwithstanding these gains, as well as other significant academic and social progress,7 Student continued to have difficulties with reading and with written and spoken language. (Mother, Kemper, Mack, Gray, Student; J3 -14) The Student Performance Profile in Student’s IEP for SY 1999-2000, written in June of 1999, stated the following:
[Student] has participated in the Lindamood Auditory Discrimination in Depth Programs for the last several years, but testing indicates he is still below grade equivalency in word attack, word identification and reading in context…[His] decoding and encoding skills are still somewhat inconsistent… (J10)
13. Salem did not conduct its own assessments of Student after his 1993 placement at Landmark; each succeeding IEP was based on Landmark’s own testing. (Mother) In late November 1998, during Student’s junior year, a Salem representative approached Student on the Landmark campus and told him that Salem would be testing him the following week. Upset, Student contacted his mother, who verified that Student’s three year re-evaluation was due in June 1999. (Mother) In a January 3, 1999 letter to Salem’s special education liaison, Lorraine Baladato, Parents stated, “[Student] is due for his 3 year evaluation in June of 1999. Please contact us at that time.” (J17) Mother testified that she did not want testing to take place in November because she felt it would be premature, and because Student had been upset by the unexpected information that he was to be tested. (Mother)
14. On May 9, 1999, Parents sent a written request to Salem for authorization forms for Student’s triennial evaluation, and suggested June 2 for a TEAM meeting. (J18) In a letter dated May 12, 1999, Salem informed Parents that it would not be able to complete Student’s psychological evaluation until September 1999 because “…the evaluation process must be completed within 45 school working days once the authorization is received…Salem does not have the required days remaining in the school year to complete the psychologicals…” (J19) The TEAM did convene on June 2 as suggested by the Parents, but relied only on testing and teacher assessments from Landmark. (Mother) The resulting IEP provided for Student to return to Landmark in September 1999, and stipulated a graduation date of June 2000, notwithstanding Student’s continuing difficulties with reading. (J10) This anticipated graduation date had been stated in each of Student’s IEPs since SY 1996-97. (J10 –13)
15. Salem did not test Student in September 1999. However, Parents obtained private psychological and educational testing for Student from Elizabeth Mack, M.Ed., which was conducted between July and November 1999. (Mother, Mack, J16) On the academic portion of Ms. Mack’s evaluation,8 Student scored significantly below grade level in standardized reading tests. Student’s grade equivalency scores on the Woodcock Johnson-Revised were as follows: letter-word identification, 5.4; passage comprehension, 5.1; dictation, 2.2; writing samples, 4.5. Scores on the Gates-MacGinitie Reading Tests were also below grade level, ranging from 2.7 to 5.0 depending on the test version and whether the test was timed or untimed. In summary, Ms. Mack concluded that:
[R]eading is not available to [Student] as an efficient tool for learning. He cannot effectively read individual words beyond a moderate range of difficulty, which seriously limits his interpretation or what he reads and his memory for that material…As well, on spontaneous writing, [Student] showed notable difficulty with the process of getting his thoughts on paper. His ideas are excellent in what he produces, but the written language shows notable inaccuracies and inefficiencies. (J16)
16. Ms. Mack’s evaluation also revealed weaknesses in mathematics as Student had not learned and automatized underlying skills and facts. Student’s calculation score on the Woodcock was at a 7.3 grade level. (J16) (Student had, however, completed Algebra I and II as well as Geometry at Landmark. (J3-5)).
17. Based on her findings, Ms. Mack recommended an additional year at Landmark in lieu of the anticipated June 2000 graduation:
[Student] has shown a great deal of growth in personal skills and competencies and also in academic areas during his time at Landmark. He does want…an additional year there beyond his senior year. It is recommended that [Student] have that additional instruction and time to acquire, integrate, and automatize skills and knowledge including language competencies. He has the ability to profit from such additional opportunity and a strong desire to work hard and well utilize that opportunity. (J16)
18. Ms. Mack’s evaluation and recommendation was discussed at one or two meetings held at Landmark in late 1999 or early 2000;9 however, no representatives from Salem attended these meetings, and the evaluation report was not sent to Salem until approximately October 15, 2000. (Mack)
19. On February 14, 2000, after their meetings with Landmark, the parents wrote to Salem SPED director Lorraine Badolato to request an additional year at Landmark for Student “so that he can learn more skills and information and continue to practice his skills…He has come a long way, but still has a lot to learn.” (J20, Mother)
20. Salem denied the Parents’ request in a March 14, 2000 letter from Ms. Badolato, which stated:
Dr. James D. O’Connor, Director of Pupil Personnel Services, has reviewed your request for an extension of [Student’s] program at Landmark School beyond the scheduled graduation date of June 2000. [Student] has been receiving intensive educational programming for several years at Landmark; [including] daily one-to-one tutorial. His transcripts indicate he has earned the required units necessary to graduate. If [Student] chooses not to accept his high school diploma in June 2000, he can attend Salem High School for additional support services. Salem…is unable to support another academic year at Landmark School for [Student] ‘to learn more skills and information…’ (J22)
The record indicates that this letter is the first written notice to Parents/Student of Student’s June 2000 graduation, other than the statement of expected graduation date contained in the IEPs from 1997 forward. (J10-13) Salem did not include with this letter the Notice of Rights prescribed by the then-applicable state regulation, 801 CMR 28.317.
18. On May 8, 2000, the Parents and Ms. Mack met with Dr. O’Connor and again requested an additional year at Landmark for Student to improve his skills. Dr. O’Connor denied this request and told Parents that Student could attend Salem High School for this purpose. (Mother, Mack)
19. Later that month,10 Parents and Student each received a memorandum from Salem stating that Student was scheduled to graduate from Salem High School in June 2000. The memorandum to the Parents11 further stated that:
[Special education] services shall terminate upon receipt of a diploma or on his/her twenty-second birthday, whichever comes first. The student has the right to refuse the diploma…and continue receiving Special Education services until his/her twenty second birthday. The diploma can, however, be accepted prior to the twenty-second birthday. If he/she plans to accept a Diploma in June of 2000, please sign below…
I understand the above statement and want my son/daughter to accept the diploma awarded to him/her in June of 2000…[space for signatures] (J22)
20. As with Salem’s March letter, this memo was unaccompanied by any notice of parental or student rights pursuant to 801 CMR 28:317.
21. On May 14, 2000 Student rejected the proposed June 2000 graduation date in his then-current IEP in the following letter to Dr. O’Connor:
I reject the graduation date on my current IEP. I do not accept a diploma at this time. I now withdraw my acceptance of the IEP and accept in part with rejection only of the graduation date. I need a transition year at Landmark. I request that that be provided. I continue to accept the placement and program at Landmark. (J24)
22. Additionally, on or about May 23, the Parents and Student returned Salem’s memos on graduation with written statements that Student would not accept his diploma. (J22) These returned memos and the Student’s May 14 letter were the Salem’s first written notification that Student intended to reject his diploma. (Batolato)
23. On May 18, 2000, Salem forwarded Student’s partially rejected IEP to the BSEA. (J26) Shortly thereafter, Parents received correspondence from the BSEA acknowledging receipt of the IEP and informing them of their procedural options, but did not themselves contact the BSEA. (Mother)
24. During the Spring or summer of 2000, Parents told Ms. Mack that Salem did not intend to fund Student’s Landmark placement during 2000-01.12 Ms. Mack, in her capacity as the Parents’ and Student’s advocate, sought information from Salem on this issue, including the status of Landmark as a “stay put” placement pending development of a new IEP for 2000-01. In late August 2000, Ms. Mack had a conversation with a Kathleen Curtis, assistant special education director for Salem, who reiterated that Salem would not fund Landmark either for an additional school year or as a “stay put” placement. (Mack, J51) There is no evidence that Salem issued any further written notice of its denial of services at Landmark, of its reasons for refusing to fund Landmark, of the Parent’ and Students’ rights, or of what, if anything, it proposed for Student in lieu of Landmark. However, Salem did not contest Student’s refusal of his diploma.
25. Neither Ms. Mack nor Parents requested a BSEA hearing at this time. (Mother, Mack)
26. Student neither returned to Landmark in September 2000 nor attended another high school level program. Instead, he began a full-time job assisting in an auto body shop and enrolled in evening non-credit classes at Salem Community College. The Community College had previously informed Student that his literacy skills were not good enough to enroll in credit courses. Student also continued to teach children’s classes at the Acorn Gallery on weekends. (Mother, Student, Mack)
27. On or about September 18, 2000, Salem convened what it termed an informational meeting—Salem did not deem it to be a TEAM meeting–to discuss possible services for Student at Salem High School. (Pippin) Student, Parents, Ms. Mack, and various Salem staff including Kathleen Curtis, Susan Pippin (high school special education coordinator) Ms. Kalp (Salem reading specialist), and a representative of the Salem High School art department attended this meeting. (Pippin, J27) Salem informally suggested a program for Student consisting of a junior-senior portfolio art class and Wilson reading instruction. (Pippin, J28) Salem informed Student and Parents that if they were satisfied with this proposal, Salem would conduct a TEAM meeting to develop an IEP based on the suggested services. (Pippin) Student agreed to visit the art class and did so at some time in October 2000. (Student, Roche)
28. On October 15, 2000, Ms. Mack sent a letter to Salem rejecting the services proposed by Salem in September, requesting continued Landmark placement or a combination of part-time Landmark placement and various additional services, and requesting school district funding for a psycholinguistic evaluation by Dr. Robert Kemper of Psycholinguistic Associates in Haverhill. (J28)
29. Dr. Kemper evaluated Student’s language-related skills on November 30, 2000. On two tests which measure single word expressive and receptive vocabulary, the Peabody Picture Vocabulary Test—III (PPVT—III) and the Expressive Vocabulary Test (EVT), Student scored, respectively, in the “Below Average” and “Below Average (Poor) ranges. (J15) Student’s scores were also in the “below average” (age equivalent 14.9) and “below average—poor” (age equivalent 11.6) ranges in the oral expression and listening comprehension portions of the Oral and Written Language Scales (OWLS) (J15) Dr. Kemper found that the scores on the OWLS were “significantly discrepant” in comparison to Student’s IQ, “indicating compromised expressive and receptive language functioning.” (J15) The Test of Adolescent and Adult Language (TOAL-3), showed that Student had “below average” to “poor” or “very poor” skills in listening and speaking, and would likely have difficulty with processing and formulating long or complex sentences. (J15) Student also achieved “below average—very poor” scores on the Test of Word Reading Efficiency (TOWRE), with “significantly depressed” skills in decoding phonemic properties of non-words. On the Slosson Oral Reading Test, Student was functioning at a grade level of 3.5 and an age equivalent of 8.0. He was able to decode most words through a fourth grade list, but his recognition dropped off rapidly and he could only decode/recognize a total of six words on the sixth and seventh grade lists. (J15) Student achieved mid-third grade level scores on Gray Oral Reading Test; he could read passages through the fourth grade level accurately but slowly. The Gray Silent Reading Test showed Student to have relative strength in silent reading comprehension, as he achieved a grade equivalency of 7.2. In the area of written expression, Student scored “below average” in the written language subtest of the OWLS. Written spelling test scores were at the 2.7 grade level and showed that Student “seemed to be functioning in the developmental stage of spelling in which only some of a word’s phonemes are represented logically by its corresponding graphemes.” Id .
30. Dr. Kemper tested Student’s underlying phonological awareness skills with the Comprehensive Test of Phonological Processing (CTOPP), which his report states “[has] been found to correlate highly with successful reading acquisition.” (J15)13 Subtest grade equivalency scores ranged from 1.4 to 5.7. Overall, Student’s CTOPP scores revealed relative strength in phonological awareness skills and significant weaknesses in phonological memory and rapid naming skills which “oftentimes have a negative affect on one’s ability to decode multisyllabic words, and to read connected text in an automatic and fluent manner.” (J15)
31. Dr. Kemper’s diagnostic impression was that Student has severe dyslexia, with an underlying phonological processing disorder which have impaired his ability to acquire basic competence in reading, spelling and written expression to the extent that Student does not have adequate literacy skills for most colleges or job training programs. (J15)
32. In his report, Dr. Kemper recommended a daily program consisting of two, half-day components. One component should be an intensive literacy tutorial, using the LIPS and Wilson reading programs with the addition of reading comprehension and writing instruction when his decoding skill improves. The other half-day component should be a college or vocational training program that incorporates and applies the skills Student learns in his tutorials. (J15)
33. Although Dr. Kemper had evaluated Student previously, in about 1991, he did not compare Student’s 1991 test scores with those obtained in 2000, and did not examine Student’s records from Landmark School. Dr. Kemper testified that he did not believe that this information was relevant to Student’s current skill level or educational needs. (Kemper)
34. Salem received Dr. Kemper’s report on February 9, 2001, however, due to scheduling issues, including the availability of both Dr. Kemper and Ms. Mack to on behalf of the Parents/Student, the TEAM did not convene until May 11, 2001. By that time, Student had been enrolled in CLC for about a month and a half. At the May 11 meeting, the TEAM considered the reports of Ms. Mack and Dr. Kemper and started, but did not complete, an IEP for Student.14 (J32-34, Pippin) The parties attempted to schedule a follow-up meeting for June 2001, but were unable to find mutually available dates before the school year ended on June 22, again, in part because of Parents’/Students’ scheduling needs.15 On June 28, Salem proposed September 12 for the next TEAM meeting, and on August 31 the Parents and Student agreed to this date. (J41-42)
35. On September 10, 2001, Ms. Gray sent a letter to Kathleen Curtis, Assistant Director of Pupil Personnel Services for Salem, documenting CLC’s “proposed learning outcomes and educational services…” for Student, apparently in response to a request by Salem for such documentation. (J46) Ms. Gray’s letter summarized the findings of Dr. Kemper and Ms. Mack and stated:
This examiner wholeheartedly agrees with Robert Kemper’s description of [Student] as being in the ‘most severe range’ of developmental dyslexia. Yet it is clear that [Student] has the cognitive capacity to improve his literacy skills. As evidenced by the results of the 39 hours of direct instruction [Student] received at CLC in the Lindamood Phoneme Sequencing Program, he is able to make significant and effective progress with specialized instruction received in an intensive program of a significant duration. Due to the severity of [Student’s] dyslexia, instruction should be delivered in a one-to-one setting with a learning disabilities specialist. It is my professional opinion that [Student] has the intellectual capacity to learn to decode up to a seventh grade level…[Student] would require an intensive instructional program of two years’ duration to meet such goals…based upon the [Kemper and Mack evaluations and 1999 Woodcock-Johnson testing by Landmark] and [Student’s] anticipated rate of progress…[Student] should complete the [LIPS] program in its entirety and then transition to equally intensive services in a structured, multisensory language program such as the Wilson Reading Method or Orton-Gillingham. At this point, [Student] should be reevaluated and determinations for future remediation should be made.
36. With the September 10 letter, Ms. Gray enclosed a report of post-testing done by CLC on August 1, 2001 to measure Student’s progress. A comparison of Student’s November 2000 and August 2001 scores in the CTOPP showed that Student’s phonemic awareness skills had “improved considerably,” but that he needed to finish the LIPS program and then transition to a multisensory reading program such as Wilson or Orton-Gillingham. The report recommended one to one instruction, five times weekly for three hour sessions, due to the intensity of Student’s needs. (J47)
37. The TEAM met again as proposed on September 12, and produced the IEP that is the subject of this hearing. (J9) (The record does not indicate whether and to what extent Salem considered the CLC report at that meeting.) The IEP proposes 5 periods per week of English, a Junior-Senior art portfolio class; two periods per week of study skills instruction by a special education teacher; two periods per week of “contracted” phonemic awareness instruction; one period per week each of speech/language therapy and counseling; and vocational counseling twice per month. Additionally, the “additional information” section of the IEP states that Salem is “amenable to allowing [Student] to obtain additional support via LIPS and Wilson Reading.” (J9) Subsequently, Salem indicated a willingness to add a mathematics class.
38. On or about October 15, 2001, Student accepted the IEP in part and rejected it in part. Specifically, Student rejected the “insufficiency of time” for phonemic awareness, reading tutorial, and speech language, the absence of math services, “lack of inclusion of appropriate services for writing and reading comprehension utilizing the recommendations including methodology of Dr. Robert Kemper and Elizabeth Mack. Additionally, Student rejected the English and Study Skills classes pending observation by Kemper and Mack, the “lack of indication of integration of services and of an appropriate setting,” counseling, and absence of summer services (J9)
39. As of the hearing dates, the accepted portions of Salem’s IEP had not been implemented.
PROGRAM PROPOSED BY PARENTS/STUDENT
1. The Parents and Student propose an integrated program of daily, intensive, one to one instruction in language, literacy and mathematics skills, as well as application of those skills in the context of preparation for a vocation and/or higher education; the goal of such services would be to maximize Student’s literacy skills to enable him to enroll in an art college. (Mother, Student, Gray, Kemper, Mack)
Jody Gray, Director of the Commonwealth Learning Center, recommended a year-round program consisting of three to four hours per day, five days per week of intensive one to one instruction in the following areas (1) a phonemic awareness program such as LIPS16 until completion of that program; (2) a structured, multisensory reading program such as Wilson or Orton-Gillingham, to begin either shortly before Student completes LIPS or immediately thereafter (one to one and half hours per day); (3) other literacy skills like reading comprehension (one to 1.5 hours per day) written expression; and, (3) if desired, mathematics (Gray).
Ms. Gray further testified that one-to-one instruction is necessary because of the severity of Student’s dyslexia and resultant skill deficits and because Student is distracted even by the presence of his brother in his tutorial sessions. (Gray, Student) Student would have minimal interaction with other students at CLC with this mode of instruction; however, Ms. Gray testified that Student’s primary need is for intensive literacy training, rather than socialization with peers at CLC. (Gray)
As of the date of hearing, CLC did not have a teacher on staff with room in his/her schedule to teach the Wilson Reading component of Student’s program. CLC was in the process of hiring such a teacher. (Gray)
Dr. Kemper testified that Student should receive prolonged, intensive one-to-one instruction in phonemic awareness followed up by Wilson reading or similar reading program, and that the CLC program described by Ms. Gray was educationally appropriate. (Kemper) Dr. Kemper declined to predict the amount of progress Student could make with such a program, but testified that he would accept Ms. Gray’s estimate of such progress, based on her experience with Student and with delivering literacy services. Dr. Kemper further testified that Student’s program should also include a component that applies and integrates reading, writing and speaking skills with Student’s artistic skills and interests. (Kemper)
Elizabeth Mack essentially agrees with Dr. Kemper’s recommendations for Student’s program, except that in her view, Student requires a total of six to seven hours per day of one to one instruction in LIPS (until completed), Wilson reading, reading comprehension, written language, speech and language therapy, and mathematics. Student could, if he wishes, also enroll in a non-credit community college course or an art class for a maximum of one hour per day, in addition to the one-to-one tutorial, but Student’s most compelling educational need is to acquire literacy skills, and nothing should interfere with that goal. (Mack)
Student testified that his primary goal is to maximize his reading, speaking, writing and math skills in order to qualify for an art college such as the Savannah College of Art and Design. (Student) Student wants his educational services to focus on these language and literacy skills, rather than on art instruction; he will continue to pursue art on his own. Student believes his current tutorial program is appropriate for him because he sees concrete improvement in his reading17 and understands how the methodologies he is using give rise to that improvement. (Student) Student finds that he benefits more from the LIPS instruction provided by CLC than he did from the LIPS program he completed at Landmark, and attributes this to the CLC instructors being more exacting than his teachers at Landmark as well as to his own improved ability to understand the relationship between LIPS and reading. (Student)
Student is distracted by his brother’s presence in his tutorial sessions, and would prefer one-on-one instruction to either being taught with his brother or studying literacy skills in a group setting. He does not object to the absence of peer interaction at CLC; he finds that the intensity of instruction and tutorial format are consistent with his priorities and goals, and he has friends and acquaintances outside of CLC. (Student)
SCHOOL’S PROPOSED PROGRAM
1. Salem Public Schools’ proposed program is embodied in the partially rejected IEP issued on September 19, 2001 and consists of 5 periods per week of English, a Junior-Senior art portfolio class; two periods per week of study skills instruction by a special education teacher; two periods per week of “contracted” phonemic awareness instruction; one period per week each of speech/language therapy and counseling; and vocational counseling twice per month. Additionally, the “additional information” section of the IEP states that Salem is “amenable to allowing [Student] to obtain additional support via LIPS and Wilson Reading.” (J9) Subsequently, Salem indicated a willingness to add a mathematics class.
2. The English class is co-taught by a regular and certified special education teacher, Mr. Brennan. Mr. Brennan was not available to testify at hearing; therefore, information about the class was provided by another special education teacher in the high school, Ms. Mary Cobb, who also has taught (but does not now teach) the class in study skills contained in the IEP. (Cobb). According to Ms. Cobb, the English class contemplated for Student is a non-college preparatory course open to all SHS students. There are approximately 20 students enrolled in class, all of whom are juniors or seniors and six of whom have IEPs. Ms. Cobb was not aware of the profiles of four of the six students, but testified that two of the students have difficulties with written language. (Cobb) Based on her experience and on her knowledge of Student gleaned from the September 12, 2001 TEAM meeting, Ms. Cobb believes that this English class would be appropriate for Student. (Cobb)
3. The Study Skills course is taught by a special education teacher18 with the assistance of two or three paraprofessionals, depending on the day of the week. The class meets for a total of seven periods per week, five days per week. Two days are devoted to direct instruction in study skills and strategies, and three days to individual work with students on IEP goals or skills that the students wish to improve. When Ms. Cobb taught the class she also communicated with the other teachers of students enrolled in the class. There is a total of 17 students of various ages enrolled in the course. Most attend five days per week. Salem’s IEP proposes two weekly sessions in the study skills course, but Student could attend more frequently if he wishes. (Cobb)
4. The Junior-Senior studio art class is taught by Ms. Maureen Roche, who has master’s degrees in both fine arts and education, a background in commercial art, and approximately 25 years of experience teaching art in the Salem public schools. Ms. Roche has taught students with learning disabilities as well as students who are not fluent in English. (Roche) Ms. Roche maintains current contacts at various post secondary schools, colleges, and programs for fine and commercial art, and has assisted many students —including those with learning disabilities and/or academic difficulties—in preparing for and applying to post secondary programs in art as well as employment. (Roche) Ms. Roche’s students with learning disabilities have often started out in two-year art schools or programs rather than four-year colleges; her view is that once these students are in an environment that focuses on art, additional opportunities become available. (Roche)
5. At the time of hearing, there were about eight students enrolled in the studio art class, mostly seniors, some whom are interested in studying art at the college level. The class provides time, materials and equipment for students to work independently on projects and assignments in both fine and commercial art, with coaching and instruction from Ms. Roche.19 Additionally, an assignment for each student is to assemble a portfolio of his/her art work and to design and create a packet of written materials ( i.e ., resume, mission statement, business cards) to be sent with the portfolio to art schools, colleges, or potential employers. Students may coordinate the writing of their essays and statements with their English teachers. (Roche)
6. Ms. Roche has examined Student’s portfolio, is familiar with his learning profile, and met Student briefly when he visited her class in October 2000. She is impressed by his work and enthusiasm, believes he is extremely talented, and feels that he would fit well into the Junior-Senior portfolio class. The teacher believes that the class could help Student prepare for future art education by enabling him to fill a few small gaps in his portfolio, to complete a personal application package, and to connect with post high school opportunities. (Roche)
7. The LIPS instruction would be provided as a contracted service because Salem’s LIPS instructor does not teach at the high school level. (Grab) This teacher, Ms. Grab, testified that in her experience, two periods per week of LIPS instruction is sufficient and that because the LIPS program is both intense and tedious, daily instruction would be excessive. Ms. Grab had not met Student prior to his September 2001 TEAM meeting, which also was her first exposure to background information about the student. Id .
8. The reading tutorial proposed by Salem would be taught by Ms. Janice Kalp, who holds certification in special education and the Wilson reading method. (Kalp) Ms. Kalp has provided Wilson reading instruction in the Salem Public Schools for the past six years. She provides and recommends no more than three weekly sessions of Wilson for any student, regardless age or degree of disability, because the program is very intense and she believes that students need days off in between tutorials to reflect on and apply what they have learned. (Kalp) Ms. Kalp also testified that the developer of the Wilson method recommends a maximum of three sessions per week of instruction. ( Id .)
9. The mathematics instruction that Salem proposes for Student is focuses on business math and related skills such as working with percentages and fractions, and managing bank accounts. (Maguire) The class consists of approximately nineteen students and one regular education teacher. (Mack)
10. Elizabeth Mack visited Salem’s proposed English, study skills and math and art classes in October 2001. In Ms. Mack’s opinion, the English class is “well run,” but is completely inappropriate because the curriculum, mode of presentation, lack of integration of the curriculum with what Student is being taught, absence of a “formal special education approach to reading comprehension, reading mechanics and written language skills,” and class size are inconsistent with Student’s need for individualized instruction. (Mack) As for the mathematics course, Ms. Mack believes that some of the content is appropriate, but the course as a whole is not because the instruction is not integrated with Student’s language-related programming or geared to Student’s skill levels in reading, writing, or language mechanics; the teaching pace is too fast, and there is too little individual attention. Ms. Mack did not discuss Student with either the English or the math teacher because she believed that the courses were so inappropriate that there was no point in doing so. Ms. Mack visited the art class but stated that she has no art background and so did not know whether the class was appropriate for Student. (Mack) Student liked the art class but feels that since he has completed his portfolio he would not gain anything from the class. (Student)
11. In general, Salem staff members believe that Parents’ and Students’ proposed program is too intense and isolating for Student who, they believe, would benefit from interacting with other students in a school setting. (Badolato, Kalp, Pippin, Grab, Cobb) Additionally, Ms.Grab and Ms.Cobb believe that daily sessions in LIPS and also in Wilson are too frequent, providing Student with no opportunity to practice and apply the skills in a classroom or real world setting. ( Id .)
FINDINGS AND CONCLUSION
There is no dispute that Student is eligible for special education and related services pursuant to the IDEA, 20 USC Section 1400, et seq ., and the Massachusetts special education statute, G.L. c. 71B.20 Therefore, Student is entitled to specialized instruction and related services calculated to afford him maximum feasible benefit in the least restrictive environment.21 Id , Roland M. v. Concord School Committee , 910 F.2d 983, 987 (1 st Cir., 1998), cert. Den . 499 U.S. 912 (1991).
There also is no dispute over the essentials of Student’s profile as a conscientious, intelligent, motivated, and artistically gifted young man whose severe dyslexia and related language difficulties have substantially impaired his ability to read, write, or speak at a level commensurate with his intellectual ability. (Student, Mother, Kemper, Mack, Highberger, J9, J15, J16) As of late August 2001, the date of Student’s most recent educational evaluation, his language and literacy skills were in the second to fifth grade range. (Gray) These skill levels are too low to enable Student to enter most colleges, including community colleges, art schools or job training programs, and interfere with his ability to pursue his art professionally. (Kemper, Gray, Mother, Student, Highberger)
Finally, the parties agree that even though Student made significant gains during his seven years at the Landmark School, he both wants and would benefit from additional services to improve his language and literacy skills,22 and that these services should include some amount of one-to-one instruction in phonological processing, decoding, reading comprehension, and related language skills.
The only issue in dispute regarding Student’s educational program is which model of service delivery is most appropriate: one comprising approximately four hours per week of individual instruction plus high school English, math, art and study skills classes (Salem’s position) or one consisting primarily of at least 15 hours per week of highly intensive, one-on-one tutorials in literacy-related skills and mathematics, supplemented by exploration of vocational or college subjects (Student/Parents’ position).
In deciding whether the program and services proposed by the school district or by the parents is more appropriate for a student, a hearing officer must first determine whether the school’s program is likely to meet the student’s unique needs, either as is or with modifications. If the school’s program is appropriate, then the hearing officer orders that program, with whatever modifications necessary. If the school’s program does not meet the requisite standard, the officer examines the appropriateness of the parents’ proposed program. Roland M ., 910 F.2d at 991.
Here, I find that Salem’s proposed program is appropriate, in part, if modified to (1) increase the amount of one-to-one instruction to at least 15 hours per week, (2) provide, in the context of these tutorials, the specific services recommended by Dr. Kemper and Ms. Jody Gray, and (3) set up a mechanism to ensure carryover between Student’s tutorials and other academic and/or vocational activity. The classes in study skills and art as well as the speech/language therapy, and guidance services are appropriate if closely coordinated with the individual tutorials to ensure carryover.23 However, the English class proposed by Salem is not appropriate at this time. Regarding math, there is too little current information about Student’s skill levels and needs for me to determine whether or not the proposed math class is appropriate; therefore, Student requires an updated mathematics evaluation as discussed in the Order of January 22, 2002. My reasoning follows.
The evidence establishes that Student’s primary educational need as well as his personal educational goal is to significantly improve his reading and language skills. The evidence also shows that Student is capable of doing so with appropriate instruction. Student’s evaluators, Ms. Gray, Ms. Mack, and Dr. Kemper, as well as Salem teachers who have worked with students with similar profiles (Ms. Grab and Ms. Kalp) testified that Student is able to make additional progress, beyond what he achieved at Landmark, notwithstanding the severity of his disability.24 Student has improved some of his language skills during his enrollment at CLC, as indicated both by test results (Gray, J47) and by Student’s report of concrete changes in his reading ability; i.e ., Student now automatically reads print that he encounters casually. (Student)
The Student and Parent also showed, by a preponderance of credible evidence, that at this point in Student’s life, the cornerstone of his educational program should be intensive, systematic, one-to-one tutorials in specific reading and language skills, including phonemic processing, decoding, reading comprehension and written expression, along with opportunities to practice and apply those skills. (Gray, Kemper, Mack, Student) This model of service delivery is recommended by all witnesses who have evaluated Student, i.e ., Ms. Mack, Dr. Kemper, and Ms. Gray. Moreover, Student made measurable progress during his first 39 weeks of instruction at CLC (Gray, J47) As for the amount of individual instruction that Student should receive, Ms. Gray (and Dr. Kemper, who is familiar with CLC and stated he would adopt her recommendations) were persuasive that approximately three to four hours per day, five days per week, is necessary for Student to achieve maximum growth in language and literacy skills. (Gray, Kemper) Although Ms. Gray has not taught Student directly, she has informally monitored and formally evaluated his progress and has communicated with his tutors at CLC, has the most current knowledge of his work, and so is the best situated of the witnesses at hearing to recommend the amount of tutoring that is appropriate for Student.
Salem’s proposed study skills and art class as well as guidance services25 are appropriate, provided there is a mechanism in place to allow Student to carry over and apply skills learned in his tutorials, consistent with Dr. Kemper’s and Ms. Mack’s recommendations. The art class is small, with students who may be less artistically advanced than Student (Highberger), but who are, like Student, serious about their art. (Roche) The course is geared towards helping students apply to post-secondary art education and/or employment programs. (Roche) The teacher, Ms. Roche, has contact with a broad range of post secondary art education programs and employment opportunities and has extensive experience in helping art students—including those with learning issues—to transition to higher education or employment. (Roche) Guidance services could also be valuable for post-secondary planning. Given sufficient collaboration between Student’s individual tutor(s) and the Study Skills teacher, the Study Skills class is appropriate because it can provide Student an opportunity to work on his individual literacy goals.
The proposed English class, however, is not appropriate. With 19 or 20 students, the English class is too large for Student, and focuses on literature rather than the basic reading and writing skills that Student needs now. (Mack) Salem did not produce evidence that the class curriculum or methods of instruction would address Student’s needs or could be modified to do so.
Ms. Mack testified that Student needs individualized math tutorials, and her 1999 evaluation indicates that at that time, Student had some deficits in his fundamental math skills. (Mack, J16) Student testified that he cannot use a ruler, and that he has forgotten much of the math he learned at Landmark. (Student) On the other hand, Student’s Landmark records indicate that while there, he successfully completed Algebra I , Algebra II and Geometry, earning A’s and B’s. (J2-5) I find that the record is inconclusive as to Student’s current skill level in math, and, for this reason, I reach no conclusion on the appropriateness of the proposed math class. Student needs a current evaluation to determine appropriate services in this subject, as set forth in the January 22 Order in this case.
Salem’s witnesses testified that daily tutorials lasting about three hours would be too intense, isolating, and, in the case of LIPS and Wilson reading, too tedious to be appropriate. (Grab, Kalp) Additionally, Ms. Grab testified that the maximum amount of LIPS instruction she would recommend for any student is three hours per week, and Ms. Kalp stated that as a general rule, Wilson reading should only be presented three hours per week so that the student can reflect and apply what s/he has learned on the intervening days. (Kalp) Salem’s witnesses generally stated that Student should be educated with peers. (Kalp, Grab, Pippin) While recognizing the knowledge and experience of these professionals, I note that none of them has evaluated or taught Student personally. (Kalp, Grab, Maguire) Student’s services must be based on his unique strengths and needs, rather than on generalizations about categories of students. Douglas County School District RE-1 , 35 IDELR 295 (SEA CO, 2001); Lakewood Board of Education , 35 IDELR 292 (SEA NJ, 2001). Here, all of Student’s evaluators strongly recommend the intensive tutorials described above.26 (Kemper, Mack, Gray) Student has testified credibly that he enjoys and benefits from intense, exacting tutorial instruction and is willing to participate in as much as is offered; his priority is to improve his reading, writing and speech, and he finds individual work to be the most effective way to make progress. (Student) Finally, the evidence shows that Student already relates very well to others, and has friends, acquaintances and numerous activities outside of the school setting; social interaction is not an identified educational need for him. (Mother, Father, Student, Highberger) I conclude, therefore, that for Student, intensive instruction in literacy skills should not be sacrificed for the sake of exposing Student to high school aged peers.
Finally, Salem does not propose a summer program. I conclude that whether and to what extent the Student needs summer services can most appropriately be addressed by the Team in the spring of 2002 on the basis of Student’s progress and needs at that time, as set forth in the January 22, 2002 Order .
Having found that Salem’s proposed program can be made appropriate by, in essence, incorporating much of the Student’s and Parents’ proposed program, I make no further findings regarding the latter proposal.
REIMBURSEMENT CLAIM
Parents may be reimbursed for the costs of providing special education and related services for their eligible children if they demonstrate that the program and services offered by the school district is inappropriate, and that the program and services that they obtain privately is appropriate. School Committee of Town of Burlington , Mass. v. Dept. of Education of Mass ., 471 U.S. 359, 369-70 (1985). To be deemed appropriate, so as to qualify parents for reimbursement, the parents’ chosen program need not be a state approved special education school, and need not meet the state special education standard,27 so long as it is does meet the federal FAPE standard. 34 CFR 300.403(c), Matthew J. v. Mass. Dept. of Education , 989 F. Supp. at 387, 27 IDELR 339 at 343-344 (1998), citing Florence County School District Four v. Carter , 510 US 7, 13 (1993); Doe v. West Boylston School Committee , 28 IDELR 1182 (D. Mass., 1998); In Re Gill-Montague RSD , BSEA #01-1222 (Crane, August 2001). Thus, a parent may be reimbursed for the costs of a unilateral placement if that placement is “appropriately responsive to [a student’s] special needs;” i.e., so that the student can benefit educationally. Matthew J. , 27 IDELR at 344.
Here, the Student began instruction at CLC in March 2001. At that time, Student was not receiving any services from Salem. Although Salem did not contest Student’s eligibility for services for the 2000-01 school year, it neither funded Landmark as a “stay put” placement, nor proposed a new IEP for the 2000-01 school year. See Paragraphs 4, 5, 25-27, above. Since Student had no offer of services from Salem, he is entitled to reimbursement for services he and his parents obtained privately, provided those services were appropriate. Matthew J ., 27 IDELR at 341, 344. Further, even though CLC is not a Chapter 766 approved private school, it was an appropriate placement for Student, as discussed extensively above; CLC was responsive to his special needs and enabled him to achieve educational benefit. Id . (Gray, Student) Therefore, Parents and Student are entitled to reimbursement28 for the costs of Student’s instruction at CLC from the date of his enrollment up (March 26, 2001) to and including the date of the Interim Order issued on January 17, 2002.
COMPENSATORY CLAIMS
The BSEA may order compensatory education to remedy past deprivations of special education rights. Pihl v. Massachusetts Department of Education , 9 F.3d 184 (1st Cir. 1993). A school district which violates a student’s procedural rights under federal or state law may be liable where “procedural inadequacies [have] compromised the pupil’s right to an appropriate education … or caused a deprivation of educational benefits.” Roland M. v. Concord Sch. Comm., 910 F.2d 983, 994 (1 st . Cir. 1990) (citations omitted), cert. denied , 499 U.S. 912 (1991). Thus, for example, “a procedural default which permits a disabled child’s entitlement to a free and appropriate education to go unmet for two years constitutes sufficient ground for liability under the IDEA.” Murphy v. Timberlane Regional Sch. Dist. , 22 F.3d 1186, 1196 (1 st Cir. 1994).
At issue in this case are two distinct but interrelated provisions of special education law; the violation of either may deprive a student of his/her rights to FAPE. First, the IDEA and Chapter 766 both require decisions about a student’s placement or services to be made by a duly convened TEAM with parental participation, not unilaterally by school districts. 20 USC Sec. 614 (c), (d)(1)(B); 34 CFR 300.501. Second, school districts must give parents prior notice of any proposal to change or terminate the placement or services of an eligible child. 20 USC Sec. 615 (b)(3), (c); 34 CFR 300.503.29 This notice must inform parents of, among other things, the nature of proposed change or termination the school’s reasons, and the parents’ rights to an evaluation and TEAM meeting before the change is implemented. Id ; see also the former state regulation at 603 CMR 28:317. Additionally, the notice must inform the parents of the right for the child to remain in the last agreed upon placement if the parent disputes the change, until the dispute is resolved. Id . High school graduation is considered a change in placement for special education student. Id .;30 see also Stock v. Mass. Hospital School , 467 NE 2d 448, 392 Mass. 205 (1985). Therefore, the rights of parents and students to advance notice and to “stay put” in the last agreed upon placement are the same as in any other instance of a proposed change of placement.
Here, the record shows that Salem unilaterally changed Student’s placement, without convening a TEAM and without giving Parent or Student the notice prescribed by federal and state law when it decided to award Student a Salem High School diploma and terminate Landmark placement, in clear violation of the applicable federal and state statutes and regulations. Salem’s letter to the parents of March 2000 (Ex. J21) did not constitute adequate notice, as it merely recited the decision of the Director of Pupil Personnel Services—not the TEAM—to terminate services at Landmark after June 2000, stated that if Student wanted more services he could get them at Salem High School, and contained no notification of Parent/Student rights.31 Similarly, Salem’s May 2000 memoranda to the Parents and Student (J22) indicated only that Student had earned enough credits for graduation but could reject his diploma; they did not notify Student of his right to an evaluation, to a Team meeting, or to remain at his last agreed upon placement pending resolution of any dispute. Finally, Salem did, indeed, stop funding Student’s Landmark placement after June 2000, despite Student’s rejection of his diploma and partial rejection of his IEP in May 2000, and his, Parent’s and Ms. Mack’s repeated invocation of Student’s stay put rights.
As a direct result of these violations, Student began the 2000-01 school year with neither a proposed IEP for that school year nor funding for his last agreed-upon placement at Landmark.32 It was not until May of 2001 that the TEAM convened, and September of 2001 that an IEP was finally offered. (J9). Student partially accepted that IEP, on or about October 15, 2001, but Salem did not implement the accepted portions.
Based on the foregoing, I conclude that Student is entitled to compensatory services. Had Salem complied with the applicable law, Student would have been receiving educational services, either at Landmark or at another agreed placement, at a minimum, from approximately mid-September 2000 through mid-June 2001, and from mid-September 2001 to mid-January 2002, the date of the Order in this case33 , for a total of thirteen months. This figure should be reduced to some extent by the award of reimbursement for the cost of CLC for the approximately ten months from April, 2001 through mid-January, 2002.34 Student only attended CLC for about two to three hours per week during that period and was taught with his brother instead of individually. On the other hand, Student and Parents will be compensated for services during the second half of June, all of July and August, and the first half of September, periods when Student would not have received services under his prior IEPs. Taking these factors into account, a reasonable and equitable solution is to reduce Salem’s compensatory service obligation by five months, attributable to Salem’s reimbursement for CLC tuition during the period at issue. Therefore, Student is entitled to eight months of compensatory service. These compensatory services should not be used to supplant services to which the Student is otherwise entitled pursuant to the Order in this case.
ORDER
The Order issued on January 17, 2002 is hereby incorporated by reference. Additionally, Salem shall provide Student with eight months of compensatory services. Since it may not be possible to provide these services currently because Student already is receiving a fully scheduled program, such services shall, unless the parties agree otherwise, be provided after the Student’s twenty-second birthday. Prior to the Student’s turning twenty-two, the TEAM shall determine the precise nature of the compensatory services to be provided, according to the Student’s needs at that time.35
_______________ ______________________________
Sara Berman
Hearing Officer
1
On the WAIS, administered by psychologist and educational advocate Elizabeth Mack between July and November of 1999, Student achieved a performance IQ (PIQ) score of 122 (93 rd percentile) and a verbal score (VIQ) of 87 (19 th percentile); this 35 point spread between verbal and performance scores is suggestive of language-based learning disabilities (Mack, Kemper, J-16) According to Ms. Mack’s evaluation report, written in November 1999, “[t]hese scores are significantly impacted by his specific learning disabilities and the secondary effects of those disabilities.” (J-16) Ms. Mack’s testing indicated, that while overall Student has “high intelligence that is measured most accurately in nonlanguage areas…” as well as strengths in verbal and non-verbal reasoning and problem solving ability, he also has a “highly significant language disability,”as well as problems with “some aspects of memory and new learning especially processing and recall of connected language…sequencing both auditorily and visually, holding material into working memory while manipulating it, proficiency in dealing with rote as compared to more meaningful material…” (J-16)
2
The Landmark School is a Chapter 766 approved private school for students with dyslexia and related disabilities .
3
Student took only non-credit courses at the community college because his skill deficits precluded his enrollment in courses for credit.
4
Customarily, this instruction is given on a 1:1 basis; however, for financial reasons, Student is instructed together with his twin brother.
5
The major premise of LIPS is that students with dyslexia often have an impaired ability to discriminate, manipulate and sequence the sounds they hear in spoken language, and consequently have great difficulty mapping sounds onto symbols in order to read. According to LIPS, such students are better able to learn sound-symbol relationships if they first learn to integrate the kinesthetic elements of speech production (e.g., mouth position) with the speech sounds they hear. ( Id ., Kemper, Gray, Student, J-16)
6
The LAC Test establishes minimum “recommended” scores which, according to the test authors, are “highly predictive of success in spelling/reading performance at particular age or grade levels. Individuals who score below the recommended levels have a dysfunction that disrupts the spelling/reading process and interferes with the acquisition of spelling/reading skills.” (Student’s LAC Test report for 5/23/97 (J6))
7
The parties agree that while at Landmark, Student became a reader, acquired academic skills and knowledge, and gained confidence. Student had good relationships with peers and adults. Student was consistently described as hard working, motivated, and well-behaved. (Kemper, Mack, Mother, Highberger; J6-8)
8
See Note 1, above, for discussion of cognitive testing.
9
No staff members from Landmark were called to testify about these meetings or about their recommendations for Student
10
The memorandum was dated April 2000, but postmarked May 12, 2000. (Mother, J22)
11
The memorandum sent to the Student essentially mirrored that sent to the Parents.
12
Parents received this information from a Landmark representative. (Mack, J51)
13
According to Jody Gray, the CTOPP is a more precise instrument for measuring phonological skills than the LAC test that Student had been given at Landmark. An increase of only one correct answer on the LAC, for example, can move a student up an entire proficiency category. (Gray)
14
In May 2001, Salem received a copy of an April 24, 2001 letter to Parents from the CLC’s director, Jody Gray, proposing that CLC provide Student with intensive one to one instruction in a phonological awareness program, followed by a structured, multisensory language program such as the Wilson Reading Method or Orton Gillingham. (J44) Ms. Gray based her recommendations on the Kemper and Mack evaluations. (Id.) There is no record evidence of Salem considering this letter at the May 11 TEAM meeting, or of Salem’s having received the letter in time to do so.
15
Student and Parents filed their BSEA hearing request on June 25, 2001. Although the matter proceeded to a prehearing conference and several telephone conferences, the evidentiary hearing itself was deferred until after the completed IEP was produced and the Parents/Students had responded to it.
16
At hearing, Gray testified that Student would complete LIPS instruction by about mid-December, at which time he would phase into the structured reading component.
17
Student testified that his new skills include being able to read a restaurant menu. In addition, he now finds himself automatically reading printed matter in his environment—product labels, for example—without being conscious of doing so. (Student)
18
The Study Skills teacher was not available for hearing; therefore, Ms. Cobb testified about how she previously had taught the course, as well as about her observations of how the class now operates.
19
Depending on the demands of an assignment and the student’s needs and skill levels, the teacher might work with the student on computer and equipment use, rulers and measurement, fractions, drawing to scale, etc.
20
Although Salem offered Student a high school diploma in June 2000, it has not contested Student’s rejection of that diploma or his eligibility for continued special education services.
21
In January 2002, the Massachusetts standard for measuring the appropriateness of an IEP changed from “maximum feasible benefit” to “free, appropriate public education.” See G.L. c. 71B, Sec. 3, as amended by 2000 Stats. Ch. 159, Secs. 162, 489, 493. Here, however, the IEP at issue was rejected, and the due process hearing was requested, prior to January 2002. Therefore, the “maximum feasible benefit” standard applies. Id .
22
Student entered Landmark in 1993 as a non-reader. (Mother, Mack) By the time he left Landmark in June 2000, his overall reading skills were at about a fourth to fifth grade level, and he had also succeeded in mathematics (including algebra I and II, and geometry), social studies, science, art, and various electives. (J2-8)
23
Salem also offered counseling in addition to guidance services, and Student rejected this service. There was no evidence submitted to show that Student needs counseling. On this issue, I find only that counseling may not be used to substitute for the full complement of tutorial services described above.
24
Although Ms. Gray testified that based on her experience, Student could increase his overall reading ability to the seventh grade level (with two years of instruction) or possibly the ninth grade level, the record contains no evidence to independently corroborate Ms. Gray’s opinion. Therefore, I make no finding as to how much improvement Student can expect to make in a given time.
25
Student accepted the speech/language therapy services offered in Salem’s IEP, so this service is not at issue here.
26
Ms. Mack testified that Student should receive about 35 hours per week of individual instruction. However, Ms. Mack neither teaches Student nor has evaluated him since 1999. On the other hand, Jody Gray, who has the most direct knowledge of Student’s current performance, recommended about 15 hours of such instruction. Dr. Kemper deferred to Ms. Gray’s calculation of the amount of tutorial time that is appropriate. Therefore, I find Ms. Gray’s testimony persuasive on this issue.
27
In this case, the applicable state standard is “maximum feasible benefit;” see note 18, above.
28
The IDEA states that a hearing officer may reduce or deny reimbursement to parents who unilaterally place a child in private school unless the parents have given the district prior notice of the private placement either at the TEAM meeting immediately preceding the placement or ten days before removing the child from public school. 20 USC Sec. 612(a)(10)(C)(iii); 34 CFR 300.403(d). In the instant case, there is no evidence that Parents/Student notified Salem before Student enrolled in CLC. However, when Student enrolled at CLC in March 2001, there had been no formal TEAM meeting, there was no IEP on the table, and Student was receiving no services from Salem. Moreover, Salem had been notified of Student’s CLC enrollment by the time the TEAM convened in May 2001. Under the circumstances, I find that the lack of prior notice to Salem does not defeat Student/Parents’ reimbursement claim.
29
The current Chapter 766 regulations adopt the notice provisions of the IDEA and implementing federal regulations. The notice provisions of the former state regulations, which were in effect during the relevant time period, were located at 603 CMR 28 :317.
30
The state regulations then in effect addressed high school graduation in particular, stating that the notice must advise of “the right to discuss proposed high school graduation and the anticipated termination of the child’s special education services with school officials; the right to accept or reject that portion of the IEP which proposes graduation, and the right to request mediation or a hearing…on that issue…” 603 CMR 28:317(I).
31
Salem’s failure to conduct a triennial evaluation at any time during Student’s junior or senior year, while a violation of the then-applicable regulations, did not itself cause the denial of services at issue here.
32
The services offered at the “informational” meeting of October 2000, while well-intentioned, do not cure the underlying violation of Student’s rights to an evaluation, a Team meeting, and to remain in his last agreed-upon placement. Further, although the delays in convening the TEAM were in part due to Dr. Kemper’s and Ms. Mack’s schedules, these professionals had conducted the only current evaluations of Student, since Salem had not evaluated Student itself for many years.
33
Salem offered an IEP in September 2001, but failed to implement the accepted portions.
34
Compensatory service is in the nature of an equitable remedy, and may be reduced by equitable considerations, including reimbursement for services during the period in question. Other equitable defenses such as laches may also lie if, for example, the parents’ conduct impairs the ability of the school to serve the student . Timberlane at 1197. That was not the case here, however; no conduct by the Parents or the Student prevented Salem from complying with the requirements of federal and state special education laws.
35
See In Re Amherst-Pelham RSD , BSEA #98-0247, 4 MSER 14, 16 (Ahearn, March 1998)