COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Southwick-Tolland Regional School District
BSEA # 06-6583
DECISION
This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL c. 71B), the state Administrative Procedure Act (MGL c. 30A), and the regulations promulgated under these statutes.
A hearing was held on September 11 and 13, 2006 in Springfield, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:
Parent Student’s Mother
Roberta Green School Psychologist retained by Parent
Linda Lafontaine Speech-Language Pathologist retained by Parent
Aaron Pearsons Social Studies Teacher, Southwick-Tolland Regional Sch. Dist. (RSD)
Emma Hynes Language Arts Teacher, Southwick-Tolland RSD
Phyllis McCullough Guidance Counselor, Southwick-Tolland RSD
Joyce Vanderleeden Special Education Teacher, Southwick-Tolland RSD
Robin Berube School Psychologist, Southwick-Tolland RSD
Robin Bennett Speech-Language Pathologist, Southwick-Tolland RSD
Ron Peloquin Principal, Southwick-Tolland RSD
Noell Somers Director of Special Education, Southwick-Tolland RSD
Regina Tate Attorney for Southwick-Tolland RSD
Claire Thompson Attorney for Parent
The official record of the hearing consists of documents submitted by the Parent and marked as exhibits P-1 through P-33; documents submitted by the Southwick-Tolland Regional School District and marked as exhibits S-1 through S-73, except that exhibits S-33 and S-72 were not admitted; and approximately fifteen hours of recorded oral testimony and argument. As agreed by the parties, written closing arguments were received on or before October 10, 2006, and the record closed on that date.
OVERVIEW OF DISPUTE
This is a dispute as to whether Student can receive a free appropriate public education (FAPE) within the public schools or whether, in order to receive FAPE, she must be educated within a substantially-separate, out-of-district school for learning disabled children.
Student is a thirteen-year-old (date of birth 12/17/92) 8 th grader who lives with her mother (Parent) in Southwick, Massachusetts. Student’s father is deceased. In 2001, when Student was eight years old, Parents adopted her from the Massachusetts Department of Social Services and then enrolled her within the Southwick-Tolland Regional School District (School District) where she received her educational services until recently placed, by her Parent, at a private school. Testimony of Parent.
Student is engaging, honest, and hard-working. She is an enthusiastic learner when she is engaged at school. She is well liked by her peers and teachers and is considered, at times, to be a leader in the classroom. Testimony of Parent, Pearsons, Hynes, Lafontaine.
Student’s overall intelligence is in the average range. However, most recent cognitive testing reflects a 21-point difference between her perceptual learning scores (her relative strength) and her verbal learning scores (her relative weakness). Testimony of Green; exhibits P-21, S-1, S-5, S-44.
Student has made progress in certain areas, including her reading vocabulary, math skills, and fund of general knowledge. However, Student has receptive and expressive language difficulties, as well as attention deficits, which have limited Student’s educational progress with respect to reading, writing, and oral language, and which have limited her acquisition of knowledge in math and science. Testimony of Pearsons, Hynes, Bennett, Green, Lafontaine; exhibits P-2, P-3, P-10, P-14, P-20, P-21, S-10, S-11, S-21, S-22, S-42, S-44, S-45, S-48.
During 6 th grade, in order to address Student’s learning difficulties, the School District proposed an IEP that provided her with pull-out speech-language services for 30 minutes, twice per week, and with a combination of pull-out services and special education support within the regular education classroom. However, Student did not receive these services from March to June of 6 th grade when Parent home-schooled Student. During 7 th grade, the pull-out speech-language services were continued, but all other direct special education services were provided through a special education teacher or aide providing support within Student’s regular education English language arts, math, and world geography classes. Testimony of Parent, Vanderleeden, Bennett; exhibits P-8, P-9, P-17, P-19, S-20, S-22, S-37, S-39.
At the end of 7 th grade, the School District proposed a continuation of the same educational model for 8 th grade (her current school year), taking the position that Student’s educational needs had been met appropriately and would continue to be met appropriately through these services. However, Parent remained concerned about her daughter’s progress in school, particularly with respect to reading, and she privately placed her daughter at the White Oak School for her 8 th grade year, starting in September 2006. Testimony of Parent, Vanderleeden; exhibits P-19, S-39.
Through the instant dispute, Parent seeks reimbursement of her out-of-pocket expenses and prospective placement at White Oak. The School District seeks an order that its current IEP, as well as the IEPs for the past two school years, are appropriate.
For reasons explained below, I conclude that Parent is entitled to reimbursement of expenses and prospective placement at White Oak.
ISSUES
The issues to be decided in this case are the following:
1. Is the IEP most recently proposed by the School District reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment?
2. If not, can additions or other modifications be made to the IEP in order to satisfy this standard?
3. If not, should Student be placed at the White Oak School?
4. Were the IEPs for Student’s 6 th and 7 th grades reasonably calculated to provide her with a free appropriate public education in the least restrictive environment?
5. If not, should Student be provided compensatory services in the form of educational services at White Oak School?
6. Is Parent entitled to reimbursement for expenses regarding her unilateral placement at White Oak beginning in the fall of 2006?
FACTS
3 rd Grade – 2001-2002 School Year
1. Prior to Parents’ adopting Student and changing her school district, Student had been receiving educational services in Worcester, Massachusetts. Because of her minimal academic skills at that time, Student repeated 3 rd grade when she entered the Southwick-Tolland school system in 2001. Testimony of Mother.
4 th Grade — 2002-2003 School Year
2. On September 25, 2002, during her 4 th grade, a neuropsychological evaluation was conducted by Mark Elin, Ph.D., of the Baystate Medical Center, as a result of a referral from a child and family services social worker. Dr. Elin found that Student performed in the low average range of general adaptive abilities on the WISC-III, and with the exception of several areas that were reported as “mild” weaknesses, Student was determined to fall within the average range regarding the tests administered. Dr. Elin recommended that Student receive educational supports for focusing her attention and for her visual spatial organizational difficulties, and that she receive psychological support for her emotional well-being. The School District proposed an IEP for the period 11/12/02 to 11/12/03, for the purpose of providing various accommodations and support. Exhibits S-1, S-2.
5 th Grade – 2003-2004 School Year
3. School District’s evaluations . During Student’s 5 th grade, the School District conducted a speech-language evaluation (by Robin Bennett), a psychological assessment (by Robin Berube), an occupational therapy evaluation (by Janice Walker), and a psycho/educational assessment (by Robin Berube) from September 16, 2003 through February 10, 2004. These evaluations found that Student’s intellectual functioning was in the low end of the average range, that her academic skills were in the average range, and that she was an “effective” silent reader. However, the evaluations also demonstrated that Student had below average abilities in written language and reading comprehension, that she processed information at a slower than average rate, that she had attentional deficits that may be impacting her classroom performance, and that she had difficulty with listening tasks having to do with auditory short-term memory and vocabulary. Recommended services included review and repetition of oral information in the classroom, language services in the areas of expressive and receptive language, and remediation in written language. Testimony of Bennett; exhibits S-4 through S-7.
4. Tufts-New England Medical Center evaluations . On March 1, 2004, Parent requested an independent evaluation of her daughter. Parent obtained a pediatric behavioral and developmental evaluation at the Floating Hospital for Children at Tufts-New England Medical Center on February 2, 2004 and March 2, 2004. The examiner, Scott Smith, M.D., concluded that Student’s academic capabilities and achievement appear mixed and unclear, and he recommended full educational, neuropsychological, and speech-language evaluations. In his written report, Dr. Smith endorsed Student’s then current placement “in the context of an integrated, language-enriched, highly structured program with appropriate special education and other specialized services as needed .” Exhibits P-1, S-8 (emphasis in original).
5. On March 22, 2004 and April 7, 2004, Parent obtained a combined neuropsychological, educational, and social work evaluation at the Floating Hospital for Children at Tufts-New England Medical Center. The Tufts-New England Medical Center combined evaluation report concluded, in the summary section, that Student’s general intellectual functioning was in the average range with significant variability among major cognitive domains and with relative weaknesses in verbal comprehension, auditory working memory, expressive language, organizational skills, visual-motor integration, and problem-solving skills. The evaluation further found that Student’s academic skills were unevenly developed, and in particular noted that she had sound-symbol retrieval weaknesses that likely interfered with her reading fluency, knowledge of math facts/procedures, and written language formulation. Exhibits P-2, S-11.
6. The Tufts-New England Medical Center combined evaluation further concluded with the following programmatic recommendations:
[Student] would benefit from a high degree of structure, study skills and organizational tutoring, and tutorial support to develop weaker academic areas. This can be accomplished through a combination of direct tutorial instruction on a daily basis, strategic class placement in classes that meet her needs, and in specific classroom accommodations.
Language-based instruction across the curriculum will be necessary. Given her multiple areas of weakness, [Student] might benefit from placement in a small, supportive, highly-structured, language-based program. Language-based programming should include:
· Instruction and class discussion that are teacher-directed . . . .
· The highly structured group interaction is essential to the language-based program. It is necessary for the student to be placed with others of similar intellectual abilities and with similar rates of processing. . . .
· Class instruction/information should be presented in a highly structured, organized manner, using oral and visual methods . . . to ease comprehension.
· All previous day’s lessons should be reviewed the following day with new information integrated/related to old information. . . .
· Reading, written and oral language strategies should be taught/reinforced across the curriculum to facilitate continuity, generalization and internalization. . . .
Exhibits P-2, S-11.
7. The neuropsychological evaluation, conducted by Cheri Geckler, Ph.D., which was a part of the Tufts-New England Medical Center combined evaluation, provided the following additional recommendation:
I strongly recommend placement in a small, highly structured, language-based classroom in the forthcoming academic year. . . . [T]o facilitate further personal and academic development, placement in a classroom with maximal exposure to language-based processing is needed. [Student] needs to be challenged, yet this should occur in a secure academic setting where she can be closely monitored, encouraged and validated, and where opportunities for personal success are built into her program. . . .
8. Baystate speech-language evaluation . Parent obtained a speech-language evaluation at the Baystate Health System on May 18, 2004. The speech-language evaluation found deficits with respect to auditory processing, written organizational skills, working memory, and verbal organization. The evaluation also noted Student’s word retrieval problems and “lower average” vocabulary skills in both verbal and written expression. The evaluation recommended that Student “continue to remain in an integrated language based classroom,” with continued speech and language therapy. Exhibits P-3, S-10.
9. Robin Bennett, a speech-language pathologist employed by the School District, compared some of the test results from the May 18, 2004 Baystate Health System’s speech-language evaluation with the test results from her own, earlier speech-language evaluation of Student in September and October 2003. Ms. Bennett noted significant gains in the Peabody Picture Vocabulary Test (relevant to receptive language) and the Clinical Evaluation of Language Fundamentals formulated sentences subtest (relevant to sentence construction). Ms. Bennett agreed with the finding of the Baystate evaluation that Student has inadequate processing speed. Exhibits P-3, S-4, S-10.
10. Grades and Parent comment . On June 22, 2004, Student’s grades for the 5 th grade included C in math, C+ in reading, B in both science and social studies, and B+ in language arts. Parent explained that during 5 th grade, her daughter had “tremendous” difficulty with reading and handwriting. Testimony of Parent; exhibits P-4, S-14.
6 th Grade – 2004-2005 School Year
11. Parent’s concerns . After observing the recommended classroom for her daughter, Parent wrote a statement of concerns for the Team meeting on September 22, 2004 at the beginning of 6 th grade. In this statement, Parent wrote that she did not believe that the recommended placement was appropriate and, instead, that her daughter needed a small, structured, language-based classroom. Parent explained that her daughter required direct instruction in oral and written language/narrative development, reading, language comprehension, as well as other instruction and accommodations outlined in various evaluations. Parent further noted particular concern regarding her daughter’s anxiety and emotional fragility, which further compromise her performance and learning at school. Exhibits P-7, S-19.
12. IEP for 6 th grade . On October 8, 2004, as a result of the September 22, 2004 Team meeting, the School District proposed an IEP for Student for 6 th grade. The IEP, which ran from September 22, 2004 to September 22, 2005, noted that Student’s disabilities may affect her progress regarding attention, acquiring new math skills and concepts, problem-solving, reading (including vocabulary, fluency, accuracy, comprehension), organization/planning, and written language. The IEP provided for the following special education services outside of the regular education classroom: reading instruction for 40 minutes, twice per week; organization/study instruction for 20 minutes, three times per week; and language instruction by a speech-language pathologist for 30 minutes, once per week. The IEP provided for the following special education services within the regular education classroom: written language instruction for 30 minutes, three times per week; math instruction for 40 minutes, five times per week. The IEP also provided for language, reading and academic consultation , each for 30 minutes, once per week. Exhibits P-8, P-9, S-20.
13. Parent rejected the portions of the IEP that were inconsistent with the recommendations of the Tufts-New England Medical Center evaluations and specifically noted her view that the mainstream/pull-out service delivery model was inappropriate. Exhibit S-20.
14. Progress reports for the first half of 6 th grade . On January 31, 2005, Student’s teachers and other service providers reported, through written progress reports, that Student was “making progress toward” her IEP reading goal, was “making some progress toward” her IEP written language goal, was “making progress toward” her IEP math goal, and was “making some progress toward” her IEP organization/study skills goal. All reported that Student was making sufficient progress to enable her to achieve her annual goals by the end of the IEP period of September 22, 2005. Exhibit S-21.
15. On March 1, 2005, the School District reported Student’s grades of Bs and Cs (except for an A in physical education) for the first two (of four) semesters of 6 th grade. Exhibit S-25.
16. Parent testified that, during this time period, her daughter continued to be unable to comprehend what she read. She reported that her daughter was able to recite almost verbatim from what she had read but was not able to understand and therefore could not summarize or otherwise explain what she had just read.
17. Speech-language services . In January 2005, Ms. Bennett (the School District’s speech-language pathologist) began providing direct services to Student pursuant to her IEP. Ms. Bennett testified that her services had been delayed until January 2005 because the IEP had not been signed by Parent. The services provided by Ms. Bennett were for 30 minutes, twice each week, which was what she had recommended for Student. (She noted that the IEP called for services once each week but stated that this was a typographical error.) From January to March 2005, Ms. Bennett worked on the benchmarks/objectives contained within goal # 5 of the 9/22/04 to 9/22/05 IEP. Ms. Bennett testified that because of the relatively short time period during which she was working with Student until Parent began home schooling, Ms. Bennett did not observe any language gains although she observed positive changes such as Student becoming more comfortable with her.
18. Tufts-New England Medical Center educational evaluation . On February 3, 2005, Cathy Mason, M.Ed., an educational specialist at the Floating Hospital for Children at Tufts-New England Medical Center, performed an educational evaluation of Student. Ms. Mason had performed the educational evaluation component of the combined neuropsychological, educational, and social work evaluation by the Tufts-New England Medical Center in March/April 2004. Ms. Mason administered some of the same tests (including the Standardized Reading Inventory and Wechsler Individual Achievement Test – II) in both evaluations.
19. Ms. Mason’s report summary explains the results of her testing as follows:
Today’s testing indicated that [Student] has made significant, appropriate progress in most academic areas since she was last evaluated here. Specifically, she has improved her basic skills level in reading/decoding, math computations and written organization. Her overall approach to tasks was less impulsive. She continues to show significant deficits and limited or no improvement in reading rate and reading comprehension.
It was evident from both today’s testing and from parent/teacher reports, that [Student’s] language processing, retrieval, attentional and organizational learning disabilities continue to interfere with her academic performance and ability to process and manage complex information/tasks.
Exhibits P-10, S-22 (emphasis in original).
20. Ms. Mason’s programmatic recommendations were similar to the programmatic recommendations contained within the earlier Tufts-New England Medical Center combined evaluation. Her recommendations re-emphasized the importance of providing language-based instruction/accommodations across the curriculum, repeated the elements of language-based programming needed by Student, and added that Student’s current services to develop reading, written language, and math skills should be maintained. Exhibits P-10, S-22.
21. In her testimony, Dr. Green reviewed Ms. Mason’s recommendations regarding the appropriate educational approach for Student. Dr. Green stated that she did not know of any school district that would be able to implement successfully Ms. Mason’s recommendations within the regular education context because of the need for consistent application of learning strategies across Student’s entire curriculum.
22. Home schooling from March through June 2005 . By letter of February 28, 2005, Parent wrote to the Superintendent of Schools, advising him of her intent to provide home schooling to her daughter, stating her dissatisfaction with her daughter’s education, and noting that the recent evaluation by Tufts-New England Medical Center had shown, in Parent’s words, that Student “has made absolutely no progress in her reading in the past eleven months.” Exhibits P-12 S-24.
23. From March through June 2005, Student was home schooled. Parent worked to a large extent on her daughter’s reading skills. No educational services or grades were provided by the School District during this time period. Testimony of Parent.
24. On June 14, 2005, there was an IEP Team meeting. The School District’s reading specialist attended the meeting because evaluations conducted by Tufts-New England Medical Center had raised concerns regarding Student’s reading. Testimony of Berube; exhibit S-26.
7 th Grade – 2005-2006 School Year
25. In September 2005, Student returned to school to attend 7 th grade. Parent testified that she had decided to end her home schooling and return her to the School District’s middle school because she had concerns that home schooling may be harming her daughter’s social and emotional well-being.
26. IEP Team meeting . On September 9, 2005, the School District scheduled an IEP Team meeting for September 19, 2005 to review and make any amendments to the IEP, but Parent requested that the meeting be postponed until after the completion of (and issuance of a written report regarding) an independent speech-language evaluation and that the meeting be scheduled at a time and date convenient to her attorney. As a result, the IEP was not reviewed or amended until December 2005, and Student received special education services during the first half of 7 th grade pursuant to the IEP that had been written for 6 th grade. Exhibits S-27 through S-29.
27. Speech-Language evaluation by Dora Campbell . On September 17, 2005 at Parent’s request, a speech-language evaluation of Student was performed by Dora Campbell, MA CCC-SLP. The written report of the evaluation, dated November 7, 2005, was received by the School District on December 5, 2005. The tests administered were the Illinois Test of Psycholinguistic Abilities, Comprehensive Test of Phonological Processing, Rapid Automatized Naming and Rapid Alternating Stimulus Test, Test of Word Reading Efficiency, Test of Problem Solving – Adolescent, and Language Sampling. The evaluator, Ms. Campbell, also observed Student within her school setting in a language arts class and then in a general education class. Exhibit P-14.
28. In the summary and recommendations section of her written report, Ms. Campbell wrote that Student has “significant difficulty navigating the language of the classroom” and that it is “questionable whether [Student] comprehends the instructional language she encounters everyday within her content area lessons within the larger classroom.” Ms. Campbell then reviewed, based upon her testing, Student’s language strengths and deficits, and her social language/reasoning skills. Ms. Campbell also considered Student’s social/emotional background and her risk of escalation of her social/emotional difficulties. Ms. Campbell then concluded, with respect to instructional placement, that “it is strongly recommended that [Student] participate in alternative education programming . . . in which all language skills within subject areas are taught in a logical, sequential manner, and follow the principles of language development theory.” She recommended that language instruction and communication strategies be taught within every subject. Exhibit P-14.
29. Ms. Campbell further explained as follows:
It is recommended that [Student’s] structured language program be implemented with [sic] the context of a substantially separate program. This program should be devoted to addressing the needs of students with significant language deficits, which implicitly impact their communication, social competence, and behavior. This setting should provide a small student/teacher ratio to address [Student’s] specific needs. . . .
Exhibit P-14.
30. In her testimony, Ms. Bennett (the School District’s speech-language pathologist) compared some of the test scores from her evaluation of Student in September/October 2003 with Ms. Campbell’s speech-language evaluation in September 2005. Ms. Bennett explained that during this two-year period, Student’s subtest scores on the Comprehensive Test of Phonological Processing changed as follows: on the Elision subtest (relevant to hearing a word, holding the word in her mind, process it, and say the word without a certain sound), Student declined from 84% to 37%; on the Blending Words subtest, Student improved from 75% to 91%; on the Memory for Digits subtest, Student improved from 9% to 37%; on the Rapid Digit Naming subtest, Student declined from 25% to 9%; on the Rapid Naming Composite score (indicating reading fluency), Student improved from 8% to 12%; on the Nonword Repetition subtest (one aspect of reading), Student declined from 75% to 9%; and on the Rapid Letter Naming subtest, Student improved from 5% to 25%. Exhibits P-14, S-4.
31. Progress Reports . On November 14, 2005, Ms. Vanderleeden wrote in a progress report that Student was “making progress toward” her IEP reading goal as she “demonstrates grade level content area materials through class participation and informal testing.” Ms. Vanderleeden wrote that Student was “making some progress toward” her IEP written language goal, was “making progress toward” her IEP math goal, and was “making some progress toward” her IEP organization/study skills goal. Ms. Bennett reported that Student was “making steady progress toward” her IEP language goal. These service providers generally reported that Student was making sufficient progress to enable her to achieve her annual goals by the end of the IEP period. Exhibit S-30.
32. IEP Team Meetings . On December 5, 2005 and again on December 19, 2005, the IEP Team met to review and amend Student’s IEP. Ms. Campbell, who completed the independent speech-language evaluation, attended the meetings, and her evaluation report was considered by the Team. As a result of these meetings, two new IEPs were prepared for the period December 5, 2005 to December 4, 2006. The most recent of the two IEPs is Student’s current IEP. Exhibits P-15, P-17, P-18, P- 19, S-38, S-39.1
33. Compared to the IEP prepared for the period September 22, 2004 to September 22, 2005, the current IEP made the following changes: eliminated Student’s special education services outside of the regular education classroom regarding reading instruction and organization/study instruction; increased Student’s special education services outside of the regular education classroom regarding language instruction by a speech-language pathologist to 30 minutes, twice per week; increased the special education services within the regular education classroom regarding written language instruction to 45 minutes, five times per week; increased slightly the special education services within the regular education classroom regarding math instruction to 45 minutes, five times per week; added special education services within the regular education classroom regarding reading for 45 minutes, five times per week; and decreased consultation to fifteen minutes, once per month for language and for general consultation by special education teacher. Exhibits P-19, S-39.
34. The IEP was implemented as follows. Ms. Bennett, the speech-language pathologist, provided speech-language services for 30 minutes, twice per week outside of the regular education classroom. Ms. Vanderleeden, the special education teacher, provided special education services consisting of clarification and other assistance within the regular education classroom in English language arts and world geography. A special education aide under Ms. Vanderleeden’s supervision provided similar special education services within the regular education classroom in math. Testimony of Bennett, Vanderleeden; exhibits P-19, S-39.
35. Parent rejected the portions of the IEP that were inconsistent with the recommendations of the Tufts-New England Medical Center and Campbell evaluations. In her rejection, Parent specifically noted her view that the mainstream/pull-out service delivery model was inappropriate. Exhibit S-40.
36. Consent for Testing . On January 18, 2006, the School District received Parent’s refusal to consent to reading testing. Parent wrote that she was arranging for reading assessments to be conducted privately. Reading testing occurred as part of Dr. Green’s speech-language assessment, discussed below. Testimony of Berube, Lafontaine; exhibits P-21, S-44.
37. Progress Reports . On January 30, 2006, Ms. Ms. Vanderleeden wrote in a progress report that Student was “making progress toward” her IEP reading comprehension goal, noting her active participation in the classroom. Ms. Vanderleeden also reported that Student was “showing progress toward” her IEP written language goal, noting Student’s use of grade level/content area vocabulary when writing essays in content area classes. Ms. Vanderleeden also reported that Student is doing very well in math and is “making good progress toward” this IEP goal. Ms. Bennett reported that Student is making “sufficient” progress regarding her IEP language goal. All of these service providers reported that Student was making sufficient progress to enable her to achieve her annual goals. Exhibits S-42.
38. Observation by Linda Lafontaine . At Parent’s request, on March 6, 2006, speech-language pathologist Linda Lafontaine, MA CCC-SLP, conducted an academic/linguistic observation of Student and then produced findings and recommendations in the form of a written report. The School District received this report as a result of Parent’s attorney sharing the report with the School District’s attorney by letter of July 12, 2006. Exhibits P-20, S-53.
39. In performing her evaluation, Ms. Lafontaine reviewed all of Parent’s exhibits in the instant dispute, including Student’s previous evaluations and her IEPs, and she observed Student for an entire day at school. Ms. Lafontaine found that Student has cognitive strengths in non-verbal or perceptual reasoning, and a weakness in her verbal area, working memory, organizational skills, other executive functions, and attention. Ms. Lafontaine testified that Student’s constellation of expressive and receptive language deficits (including vocabulary, word retrieval, auditory comprehension, and paragraph formulation) indicate that she has a language-based learning disability.
40. Ms. Lafontaine explained that when one looks at each of the five strands of language (pragmatics, phonology, semantics, syntax, and discourse), Student has difficulties in every strand, resulting in a weak language foundation. This limits Student’s ability to speak and write at the discourse level – that is, her ability to respond in the form of a paragraph rather than a word or sentence – which is necessary in classes such as science and social studies.
41. Ms. Lafontaine testified that although others have found Student to be generally good at decoding, her own more specific findings and observations were that Student is good at reading whole words and has a good sight-based vocabulary for reading, but Student does not have good word attack strategies or decoding skills. For Ms. Lafontaine, this raised a significant concern regarding Student’s overall reading comprehension abilities. She noted that Student also has difficulties with four out of the five phonological underpinnings of reading – that is, deficits in non-word repetition (reflecting difficulties with encoding), phonological retrieval (listed as rapid naming in the testing), phonological memory, and phonological production; and she has a strength only in phonological awareness. Ms. Lafontaine noted that this concern is similarly reflected in the middle of page 11 of Dora Campbell’s speech-language evaluation, and noted that Ms. Campbell’s Test of Problem Solving scores agreed with Dr. Green’s comprehension scores – the two tests reflect the same type of task. Exhibits P-2, P-10, P-14, P-21.
42. Ms. Lafontaine testified further with respect to Student’s reading comprehension, concluding that she is “impaired” in this area. Ms. Lafontaine further explained that Student’s deficits are multiple – that is, she has significant language deficits with no solid language foundation, and layered on top of these deficits, she has attentional and organizational limitations. She noted that it is this combination of difficulties that makes necessary a more intensive language program than is provided within the School District in order to address the weaknesses in each of her language strands. Ms. Lafontaine also stated that Student needs more direct instruction (either 1:1 or in small group) than is offered in the current IEP in order to teach Student specific learning strategies – for example, to decode multi-syllabic words, to apply word retrieval across the curriculum, to gain greater comprehension, and to understand vocabulary in the classroom.
43. Ms. Lafontaine testified that Student has a significant capacity to make further educational growth, explaining that Student has sufficiently solid cognitive skills to learn and internalize learning strategies if given the opportunity to do so, which is not occurring in the current educational model. Ms. Lafontaine testified that Student is still invested in learning but she is far behind compared to her learning capacity. Ms. Lafontaine explained further that Student has the capacity, eventually, to learn how to write a five-paragraph summary but presently cannot write a single paragraph, even though writing a paragraph is generally considered to be a 4 th or 5 th grade skill, at the latest. Student would also be expected to improve significantly her reading comprehension with appropriate, systematic instruction although she may never reach grade level.
44. Ms. Lafontaine testified that written language literacy skills hinge on the development of oral language skills, with the result that oral language is the foundation for written language. She explained that this reflects the importance of sufficient teacher-student dialogue in class, which can only occur in classes smaller than proposed by the School District, other than Student’s math classroom. Classes need to be sufficiently small so that the teacher can check in with Student on a frequent basis to see whether she understands the big picture, as compared to only understanding isolated facts, and to provide Student with the opportunity to answer at the discourse or paragraph level, rather than with a single word or sentence. Ms. Lafontaine’s observation of Student in the School District was that only in math class, because of its small size, was the teacher able to do this with sufficient frequency. She noted the impossibility of a teacher being able to check each student’s understanding more than twice per class if the class has 21 students or more, which was the class size except for math.
45. Ms. Lafontaine testified that in her observations of Student in her various classrooms, although there was significant interaction between the teacher and students, the classes other than math were too large to provide sufficient interaction with Student. As a result, Student was fully engaged in the math class but was engaged much less in her other classes (engaged and invested approximately half the time in world geography and less so in other classes).
46. Ms. Lafontaine observed that content area classes were not mapped through a graphic organizer (for the purpose of providing an overall organization of the semantic information) that would be necessary for Student to keep up with the other, non-language impaired students, and to be able to understand the material so that she would be able to summarize what she has learned as compared to understanding only isolated facts; and Student does not have the strategies to organize language at the discourse level without this assistance. Ms. Lafontaine also observed that Student was asked to write a summary without the teacher providing oral discussion, including mapping what is most important. She explained that because of the importance of first developing oral language, it is essential that Student, as a language-impaired child, be provided with oral discussion of a topic before she is asked to write a summary. Ms. Lafontaine explained that a central difficulty for Student within her placement in the School District is that her various teachers utilized different approaches and strategies – for example, different ways of writing a summary. Ms. Lafontaine opined that to correct this requires years of staff training, including modeling and willingness of teachers to change.
47. Ms. Lafontaine testified that Student is also struggling in her science and world geography classrooms in that Student appears to have difficulty getting new vocabulary words (used in class) into her brain and then retrieving and using them in a way that would allow her to participate in class by responding in paragraph form (with connections between the sentences), rather than what she is currently able to do which is to respond with single words or sentences.
48. Ms. Lafontaine testified that in order to make effective progress, Student requires explicit and systematic instruction to internalize vocabulary in all curriculum settings, more comprehensive instruction regarding reading comprehension, systematic writing instruction common to all classes, and use of the same graphic organizers throughout her content areas of instruction. She opined that, because of the extent of Student’s impairments, Student cannot learn language sufficiently in the School District’s program model since there are too many students in the classroom and because the instruction is not directed specifically to her needs.
49. Psycho-Educational Evaluation by Roberta Green . At Parent’s request, on April 12, 2006, a licensed/certified school psychologist Roberta Green, Ed.D., conducted a psycho-educational assessment of Student. Parent provided a copy of the written report to the School District, which it received on May 10, 2006. Exhibits P-21, S-44.
50. Dr. Green reviewed all of the Parent’s exhibits in the present dispute, including the IEPs and previous evaluations. She also attended the June 12, 2006 IEP Team meeting during which she submitted the findings and conclusions from her evaluation and listened to the comments of the other Team meetings. The assessments utilized by Dr. Green in her evaluation included a variety of reading tests, as well as the Wechsler Intelligence Scale for Children (4 th ed.), Test of Non-Verbal Intelligence (3 rd ed.), and Comprehensive Test of Phonological Processing (supplemental subtests). She also interviewed Student and her Parent, but did not interview School District staff or observe Student at school. Her evaluation indicated that Student has strengths but also significant weaknesses, which were generally consistent with what had been found through previous evaluations.
51. Dr. Green testified and her report reflects that Student tests in the upper end of the average range in non-verbal intelligence or perceptual reasoning, indicating a strength in thinking and problem-solving when pictures are utilized, but Student tests in the low-average range regarding verbal comprehension intelligence. She noted that the 21-point discrepancy in the scores in these two areas is significant. Dr. Green also pointed out that Student has solid visual memory and an ability to learn using that memory, resulting in her having significant capacity to develop further educationally.
52. After reviewing her own and other test results indicating Student’s significant processing and attentional issues, together with her cognitive strengths, Dr. Green summarized in her report as follows: “Clearly this is a child who is capable of learning, however has numerous obstacles to her academic success. . . . [D]espite the best effort put forth by her special education team at [the School District] [Student] is not making the progress that would be expected for a child with her cognitive skills.”
53. Dr. Green found that although Student has “splinter skills” with respect to language (for example, the ability to decode individual words and a strong vocabulary), she has an inadequate overall foundation, compromising her functional abilities regarding reading and writing. Dr. Green noted, for example, that Student was able to do better with a short task or if she were able to refer back to what she had read, but that with longer, more elaborate tasks in the areas of both reading and writing, her ability broke down, with the result that she was not able to acquire content from reading that she is capable of obtaining. She noted further, for example, that with respect to writing, Student was able to formulate separate sentences, but had difficulty writing paragraphs.
54. Dr. Green testified that her testing revealed significant deficits in rapid naming and verbal working memory, and a strength in visual memory. Student’s deficits indicated to Dr. Green that Student may know the answer but would have difficulty finding the words to provide the answer, and also that she may need additional time to process language. As a result, while she processes what she has heard, she may not be able to understand what is currently being said if instruction is given at a normal rate.
55. Dr. Green’s written evaluation and testimony were that, with respect to her own (and others’ evaluations) regarding reading, Student demonstrates consistent difficulties with rate and comprehension. Dr. Green explained, more specifically, that Student’s decoding skills have improved significantly over time with respect to words in isolation, but decoding continues to be very effortful and awkward when she decodes text or discourse – this difficulty leaves little cognitive energy to help her with fluency. Dr. Green’s written report further explained that, consequently, her decoding is “too slow and effortful to result in fluent smooth reading which is needed for comprehension.” Testing results further indicate that “accuracy, rate, and comprehension remain poorly developed.” Dr. Green noted that on the Gray Oral Reading Test, the total reading quotient was 12 out of 100 peers, a score significantly lower than what would be expected given Student’s perceptual reasoning strengths. These reading difficulties, according to Dr. Green, have likely resulted in significant deficits in understanding and applying substantive information that she has read in middle school.
56. In addition to Student’s language processing difficulties discussed above, Dr. Green testified that Student has attentional deficits that overlay the language deficits. It is this combination of difficulties, according to Dr. Green, that has made it so difficult for Student to perform academically at the level that would be expected based upon her non-verbal intelligence.
57. Dr. Green’s testimony and report explained that Student’s deficits compromise more than her ability in the language arts and math classrooms. She noted that these deficits generally would make it difficult for Student in courses such as social studies to acquire content knowledge that she is capable of learning. Also, Student has limited ability to take what she has learned from any one context and apply it to another context and thereby benefit from her learning. Dr. Green opined that Student’s abilities in this regard are significantly below what one would expect based upon her non-verbal intelligence and capacity to learn. She also noted that the limitations of the School District’s past and presently-proposed model (that is, with relatively large classes, where not all teachers use the same strategies, and without sufficiently intensive remedial instruction) are evidenced by Student’s inability to internalize strategies necessary for her to read and write at the level at which she is capable and by the overall limited progress that Student has been making compared to her educational capacity.
58. Dr. Green testified and her report reflects that, on the positive side, Student has learned a lot in school with respect to her fund of general and word knowledge, which is likely the result of Student’s increased effort when learning new material. However, because of Student’s difficulties with language, phonological memory and accessing language, together with her attentional issues, Dr. Green opined that Student’s educational progress would be significantly greater in a different education model – that is, where all her teachers in all contexts employ the same kinds of learning strategies, all teachers have the specialized training necessary to implement these strategies, all teachers speak slowly, the instruction is language-based, and all instruction is in relatively small classrooms. She noted, in particular, that a smaller classroom is necessary for Student to have sufficient interaction with and feedback from the teacher, and with many opportunities for repetition. She further explained that the continual and consistent reinforcement of the same learning strategies throughout the day, across Student’s curriculum, is necessary for Student to internalize and utilize these strategies herself. Dr. Green also noted the advantages of Student’s being placed with peers who have similar learning deficits, since this would allow her to become a more active learning participant. Dr. Green explained the practical impossibility of any school district, in a relatively short timeframe, creating this educational model unless the model already existed elsewhere within that school district.
59. Dr. Green concluded that she did not believe that Student can make effective progress commensurate with her abilities in a public school setting unless the school has a substantially separate, language-based program. She opined that Student’s multiple and significant deficits in combination with significant capacity to learn indicate the importance of providing her the opportunity to make significantly greater progress, which cannot occur in the School District’s currently proposed educational model.
60. World Geography . Aaron Pearsons, a School District 7 th and 8 th grade social studies teacher, testified that Student was in his world geography 7 th grade classroom for the 2005-2006 school year. In his classroom, a special education teacher (Ms. Vanderleeden) assisted by clarifying and adding to his instruction for those needing it and, occasionally, taking half the class into her room for separate instruction.
61. Mr. Pearsons described Student’s progress over the course of the school year as follows. As with most children, Student needed time to adjust at the beginning of the year. She was quiet and less confident. By the end of the year, Student asked questions as necessary, answered questions in class (typically one to three questions per class, and her answers were almost always on point), and exhibited much greater confidence. Over time, she became more independent in class, needing less direction and becoming more productive. Student made excellent progress regarding vocabulary, typically receiving very high grades in this area. She also was quite good at learning and retaining information from maps, consistent with her cognitive strengths regarding non-verbal or visual learning.
62. With respect to writing, Mr. Pearsons testified that although he noticed improvement over time, Student continued to struggle throughout the year and continued to have difficulty constructing a good written paragraph. Similarly with reading comprehension, Mr. Pearsons noted that she continued to struggle throughout the year. If she read aloud, he would check for understanding and often have her re-read the passage.
63. Ms. Vanderleeden testified that the world geography class of 21 children included 11 children on IEPs, 10 of whom have language deficits. The curriculum and grades are not modified for Student, but there are testing accommodations as reflected within her IEP, which include read/clarify instructions and test directions, tracking and redirecting her attention to the test, reading the test to Student (other than English language arts), and use of graphic organizers and reference sheets. Exhibits P-19, S-39.
64. Student’s grades for world geography started in the first quarter with a B, then decreased to a C for the next two quarters, and a C- for the 4 th quarter. Mr. Pearsons explained that the decline in Student’s grade scores reflected the increased difficulty of the curriculum over the course of the school year. Because of the continued increase in difficulty in social studies for the next year, he had concerns as to how Student would do in 8 th grade social studies in the event that she continued her education within regular education classrooms.
65. English Language Arts . Emma Hynes, a School District 7 th and 8 th grade English language arts teacher, testified that she was Student’s English language arts teacher from December 1, 2005 (when she returned from maternity leave) through the remainder of the 2005-2006 school year. In her classroom of 21 children, a special education teacher (Ms. Vanderleeden) assisted by instructing the class at times, taking notes for students, and, occasionally, taking half the class into her room for separate instruction.
66. Ms. Hynes described Student’s progress over the course of the school year as follows. Over time, Student gained a lot of confidence and became a leader among other students. She was a valued member of the class with respect to her class participation, including answering questions. Student “seemed to understand” what she had read, as reflected in quizzes, was reading at the 7 th grade level, and was engaged in her classroom.
67. Ms. Hynes explained that a significant focus of the class over the school year was for each student to write a well-crafted, five-paragraph essay, and the class worked extensively on this over the course of the year. She explained that Student’s learning was slow in the area of written language, but she did improve so that by the end of the year, she had written two five-paragraph essays with the assistance of a template. Each of the five paragraphs consisted of several sentences.
68. Ms. Hynes testified that, as reflected in Student’s grades of B-, B-, A- and B for the four quarters, Student was “probably” in the upper half of the class. She concluded that Student grasped the curriculum and did well in this class. Ms. Vanderleeden testified that the English language arts class of 21 children includes 11 children on IEPs, 10 of whom have language deficits. The curriculum and grades are not modified for Student, but there are testing accommodations as reflected within her IEP (discussed above in the context of world geography).
69. Social Skills Group . During the 2005-2006 school year, Student participated in a social skills group led by Phyllis McCullough, a guidance counselor within the School District. The group addressed issues such as stress, bullying, other conflicts, as well as positive things going on the in the lives of the children. Student was described by Ms. McCullough as “delightful” and as a leader and valued member within the group. Student was very articulate and clear in her verbal expression, and was one of the better students with respect to expressing her feelings and thoughts. Student helped others within the group. This is a regular, not special, education service. Testimony of McCullough.
70. Services in Regular Education Classrooms . Joyce Vanderleeden, a special education teacher at the School District, testified that for the 2005-2006 school year, she served as the special education consultant to the other teachers with respect to Student, she was in Student’s world geography and English language arts classes, she supervised the special education aide who was in Student’s math class, and she was a teacher in Student’s skills group, which is a regular education class that met for 40 to 45 minutes, three times each week. Ms. Vanderleeden testified that, in her opinion, Student has the following deficits. Student works at a relatively slow pace (with the result that everything that she does is slower than other students), she does better with visually-presented material than with verbally-presented material, and she needs clarification and repetition although to a lesser degree over the course of the school year. Ms. Vanderleeden testified that Student does not have a learning disability.
71. Ms. Vanderleeden testified that at the beginning of the year in the skills group, Student received a significant amount of assistance, particularly in math. By the end of the year, Student was able to get herself started, was able to utilize other children for help as needed, and needed little assistance from a teacher or aide. Ms. Vanderleeden explained that she did not determine Student’s level of reading comprehension, but she saw evidence that Student understood what she read since she was able to answer questions correctly in class.
72. Ms. Vanderleeden testified that by the end of the school year, Student was a much more independent reader. Student was able to identify vocabulary being used in all four of her content classes, and her reading vocabulary was at grade level. Prompting was minimal regarding reading and writing, with Student needing, for the most part, clarification (rather than prompting) from the teachers. Student continued to need work on the mechanics of writing but was making progress. Overall, Ms. Vanderleeden concluded that Student made progress regarding written language and reading across all four content areas.
73. Speech-Language Services . During the 2005-2006 school year, Ms. Bennett provided Student with speech-language services for 30 minutes, twice per week, for the purpose of addressing the benchmarks/objectives for goal # 5 (language) contained within her IEP. Ms. Bennett testified that by the end of the school year, Student had made progress in the following ways. Through systematic worksheets on verb tenses and nouns, Student was able to provide the answers “a lot easier.” Student was making fewer mistakes in expressive language. She began trying to use some word retrieval strategies independently. After reading a short story with Ms. Bennett, Student was, by the end of the year, starting to be able to answer more independently the questions about the reading and also was starting to work on critical thinking, which is a relatively high level of thinking. Student was able to make inferences from what she read, if questions were asked, although this was more difficult for her. Student has word retrieval deficits, but there was improvement in this area, so that she was able to retrieve words more easily over time. Ms. Bennett did not recommend placement in a substantially separate, out-of-district program because she felt that the School District was “meeting her needs” and that there had been “sufficient, if not great, gains in some areas of her IEP.”
74. Progress Reports . On the April 13, 2006 progress reports, Ms. Vanderleeden reported that Student “demonstrates understanding of text in her content area classes on both isolated and contextual reading situations” with respect to Student’s reading comprehension goal. Ms. Vanderleeden reported, with respect to the written language IEP goal, that Student uses pre-writing strategies, her vocabulary is at grade level, and she uses editing strategies to self-correct her written work. Ms. Vanderleeden reported that Student is doing well in math. Ms. Bennett reported that Student “has attained some progress toward the annual goal” regarding language. These service providers generally reported that Student was making sufficient progress to achieve her various IEP annual goals. Exhibit S-43.
75. In the year end progress report, dated June 20, 2006, Ms. Vanderleeden wrote, with respect to Student’s IEP goal of reading comprehension as well as with respect to the IEP goal of written language, that Student “has made some progress toward this goal” and that her “progress seems sufficient enough to enable [Student] to work towards achieving this annual goal.” Exhibit S-48. When asked by the Hearing Officer to explain what she meant when she had written, within this year-end progress report, that Student had made “some” progress in these areas and that Student was making enough progress to allow Student “to work towards” achieving the IEP annual goal, Ms. Vanderleeden testified only that, as a general rule, she is reluctant to write that a special education student who has a life-long disability has achieved or will meet an IEP goal because to do so would indicate an ability to work independently, which may never occur.
76. The June 20, 2006 year-end progress report regarding the math IEP goal stated that Student “is doing very well in math class showing solid progress toward the annual goal.” “[Student] is currently showing progress to enable her to achieve her annual goal by the end of the IEP period.” The report indicated that it was completed by Ms. Vanderleeden. Exhibit S-48.
77. The June 20, 2006 year-end progress report regarding the language IEP goal being addressed by the speech-language pathologist, Ms. Bennett, indicated that Student “has attained progress toward the annual goal.” Exhibit S-48.
78. Parent’s concerns . Parent explained that Student continued to have difficulty reading on her own. In 7 th grade, as in the 6 th grade, her daughter was able to recite what she had read but not able to understand it. Parent believed that her daughter had not made sufficient progress within the School District. After observing the White Oak School, Parent decided to place her daughter at this school for her 8 th grade. Testimony of Parent.
79. Removal of Student to White Oak School . By letter of July 7, 2006, Parent’s attorney advised the School District that Parent would be enrolling her daughter at the White Oak School in Westfield, Massachusetts for the 2006-2007 school year, and would be seeking reimbursement from the School District for all costs associated with this placement. Exhibit P-25.
DISCUSSION
Introduction .
Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA)2 and the state special education statute.3 The IDEA was enacted “to ensure that all children with disabilities have available to them a free appropriate public education [FAPE] that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living.”4 FAPE “consists of educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.”5 Neither Student’s eligibility status nor her entitlement to FAPE is in dispute.
FAPE is provided through an individualized education program (IEP) that must be reasonably calculated to provide an “appropriate” education as defined in federal and Massachusetts law .6 The appropriateness of an IEP is judged by “ what was, and was not, objectively reasonable when the snapshot was taken, that is, at the time the IEP was promulgated.”7
If a school district fails in its obligation to provide FAPE to a student with a disability, parents may enroll their son or daughter in a private school and seek retroactive reimbursement for the cost of the private school.8
In the instant dispute, Parent has the burden of persuading me that one or more of the School District’s IEPs is not appropriate, that the current IEP, if not appropriate, could not be made appropriate through modifications that would allow Student to remain within the public schools, and that the private school in which Student has been enrolled (White Oak) is appropriate.9
Credibility of the principal witnesses and the evaluation reports .
Prior to considering the evidence, I comment, in general, on the credibility of the principal witnesses who have expertise regarding Student’s educational needs and how they should be met, as well as the written evaluation reports.
I found Ms. Lafontaine (the speech-language pathologist retained by Parent) to be candid, articulate, thoughtful, and insightful in her testimony, both on direct and cross-examination. Ms. Lafontaine’s work on behalf of both school districts and parents allowed her to understand both perspectives. Through her testimony, resume, and written report, Ms. Lafontaine demonstrated that she has (1) an unusually comprehensive and detailed understanding both of language disabilities, in general, and of Student’s deficits, in particular, (2) extensive, practical experience within the classroom, and (3) a significant amount of experience consulting for school districts as to how the needs of learning disabled children should be addressed. Consequently, I credit her testimony.10
Dr. Green (a licensed/certified school psychologist retained by Parent) demonstrated significant knowledge and expertise relevant to Student and her disabilities. Her formal evaluation provided useful information for purposes of assessing both Student’s progress and her capacity to make progress. Her work on behalf of school districts gave her added credibility as a witness for Parent. The weight given to her testimony was somewhat reduced by the fact that she neither observed Student in the classroom nor spoke with those with experience working with Student in the classroom. Nevertheless, she was able to provide credible support for Ms. Lafontaine’s conclusions and recommendations.11
Ms. Lafontaine and Dr. Green had the disadvantage of only observing Student on a particular day (Ms. Lafontaine) or only evaluating Student on a particular day (Dr. Green), rather than over a period of time. These limitations are inherent in evaluations of a student by someone who is not also working with Student, and the limitation applies to evaluations relied upon by Parent as well as by the School District. I find that Ms. Lafontaine and Dr. Green compensated for this limitation by reviewing an extensive number of evaluations, reports and IEPs of Student over a period of many years, and by understanding their own evaluation or observation within this broader context.
Ms. Bennett (the School District’s speech-language pathologist) has three years of experience as a speech-language pathologist and seven years as an elementary school teacher, and she provided direct services to Student part of one school year and all of another. She testified regarding the progress that Student made while working with her. I credit her reporting of Student’s skills on which she worked and the progress regarding those skills.
The testimony of Ms. Vanderleeden (the School District’s special education teacher) regarding learning disabilities, in general, was vague and incomplete. Her testimony regarding Student’s particular disabilities appeared to ignore and be in conflict with a long history of evaluations regarding Student’s special education needs, and her testimony in response to the Hearing Officer’s questions (for the purpose of seeking to understand Ms. Vanderleeden’s conclusory comments in her most recent progress reports regarding Student – for example, that Student had made “some progress”) provided no useful information. Accordingly, her testimony was given little weight.
Two teachers (Mr. Pearsons who was Student’s world geography teacher and Ms. Hynes who was Student’s English language arts teacher) testified with respect to Student’s academic progress within their classrooms. Neither teacher has expertise regarding special education, but both have expertise regarding regular education. I found Mr. Pearsons’ testimony, in particular, to reflect a well-informed, detailed, and balanced understanding of Student, and I credit his testimony. In contrast, Ms. Hynes did not appear to know Student as well, and she testified in less detail.
Although I found helpful and relied upon the various professional evaluations in the record, a written evaluation is given less weight than expert testimony unless there is testimonial explanation and clarification from either the author or another professional competent to comment upon the relevance of the evaluation. Testimony allows for cross-examination as well as clarifying questions from the Hearing Officer, whereas the document does not. Testimony is particularly important with respect to dated evaluations (such as the neuropsychological evaluation in 2002 by Dr. Elin) and various test scores embedded within other evaluations, which through testimony must be explained and/or interpreted in order to provide relevant, useful information for the Hearing Officer. In this regard, I found Ms. Lafontaine’s and Dr. Green’s testimony explaining the relevance of the evaluations performed by others to be useful in understanding Student, the progress that she has made and her capacity for further educational development.
Two other points need to be made regarding evaluations and the written reports explaining them. First, Dora Campbell’s speech-language evaluation occurred in September 2005, relatively soon after Student had been home-schooled from March through June 2005. During the home schooling, no special education services were provided by the School District. The evaluation report may therefore not be used to judge the success or failure of services reflected within the IEP during the six months or so prior to testing. Second, Ms. Lafontaine’s written report was made available to the School District shortly before the evidentiary hearing in the instant dispute. Consequently, the School District did not have an opportunity to consider the report and make adjustments to the current IEP prior to the hearing.
Student’s current IEP .
Although described in more detail above, I recap briefly Student’s currently-proposed IEP. The current IEP is for the period December 5, 2005 to December 4, 2006, which included the second half of 7 th grade and the first half of 8 th grade. This IEP included (1) various consultation services; (2) pull-out speech-language services 30 minutes, twice per week; and (3) special education services within the regular education classroom regarding written language instruction, reading and math, with each provided for 45 minutes, five times per week. Testimony of Bennett, Vanderleeden, Hynes, Pearsons; exhibits P-19, S-39; Facts section of this Decision (Facts), pars. 32-35.
During all of 7 th grade (and during 8 th grade had Student remained within the public schools), the services within the regular education classroom were implemented by special education staff (Ms. Vanderleeden in English language arts and world geography, and by a special education aide under Ms. Vanderleeden’s supervision in math) who assisted Student and the other ten special education students as needed. The special education assistance included clarifying the instructions of the regular education teacher and prompting. Facts, pars. 34, 60, 63, 65, 70, 73.
The fundamental point in contention in this case is whether the School District’s service delivery model of providing Student’s special education services (other than speech-language services) within the regular education classroom is appropriate for Student in order for her to receive FAPE, or, conversely, whether Student requires a substantially-separate program for special needs children.
Student’s unique educational needs .
FAPE requires that Student’s IEP be tailored to address her “unique” educational needs.12 Relevant to this inquiry is whether the School District understood the nature and extent of Student’s special education needs when determining, through her IEP, what special education services and placement should be provided.
For 7 th and 8 th grades, Ms. Vanderleeden was (and would be) the School District’s special education teacher responsible for all of Student’s special education services within the regular education classrooms either by providing the services directly in English language arts and world geography or by supervising the special education aide who was providing the services in math. Ms. Vanderleeden testified that, in her opinion, Student does not have a learning disability. She described Student simply as a child who works at a slower pace (with the result that everything that she does is slower than other students), who needs clarification and repetition (although less over the course of the past school year), and who does better with visually-presented material than with verbally-presented material. Facts, par. 70.
The School District, particularly in its closing argument, also relies on the neuropsychological evaluation of Dr. Elin to support Ms. Vanderleeden’s view of Student. The School District relies on Dr. Elin’s report for the proposition that Student’s profile relevant to reading and other language areas was due to her neurological profile, not a language-based disability. Exhibit S-1; Facts, par. 2.
Were I to accept as accurate this view of Student’s disabilities, there would be little doubt that the School District’s IEPs would be considered appropriate. However, for reasons noted above, I did not find Ms. Vanderleeden’s expert testimony to be persuasive; Dr. Elin’s report is dated (2002) and was neither explained nor supported by credible expert testimony or subsequent evaluations; and there was persuasive evidence that contradicted Ms. Vanderleeden’s and Dr. Elin’s understanding of Student’s special education needs and how they should be met.
As early as September/October 2003, the School District’s speech-language pathologist, Ms. Bennett, evaluated Student and found that she has receptive and expressive language weaknesses, that reading fluency and word attack are difficult for her, and that she has slow processing speed and a reduced short term memory (exhibit S-4). Student’s deficits in receptive and expressive language continued to be reported in subsequent formal evaluations. It has become apparent, through these evaluations over time, that Student has not developed a solid language foundation (including difficulties in four out of the five phonological underpinnings of reading), and that she continues to have significant processing speed deficits as well as attentional impairments. This combination of learning deficits has resulted in and continues to result in Student’s having a very substantial, if not severe, language-based learning disability, in combination with attentional deficits, that interfere with her academic performance and ability to process and manage complex information and tasks. Facts, pars. 3, 5, 8, 19, 27, 28, 39, 40, 41, 42, 50, 52, 53, 54, 55, 56, 57.
It is this particular combination of disabilities and deficits that the School District’s IEPs must be tailored to address.
Adequacy of Student’s educational progress under Student’s current IEP .
When considering the adequacy of a student’s progress, the First Circuit has explained that the relevant inquiry is whether the IEP is “reasonably calculated to provide ‘effective results’ and ‘demonstrable improvement’ in the various ‘educational and personal skills identified as special needs.’”13 Similarly, the Massachusetts special education regulations require the IEP to be designed to enable the student to make effective progress.14 The United States Supreme Court has identified, as a substantive educational standard, the expectation that special education services make a student’s access to her education “ meaningful.”15 Massachusetts law further requires that special education services be “designed to develop [the student’s] educational potential.”16
In addition, I note that the FAPE standard is one of “moderation.”17 The “ benefit conferred [by the IEP] need not reach the highest attainable level or even the level needed to maximize the child’s potential.”18 If the IEP proposed by the school district is determined to be appropriate for a particular student, it is irrelevant that additional or different services would likely result in greater educational progress or benefit.19
With these standards in mind, I consider Student’s educational progress pursuant to the School District’s services and placement described within Student’s current IEP. I focus, in particular, on progress made in the areas of Student’s special education needs of written and oral language and reading comprehension, which, for Student, are her principal learning difficulties and the focus of her special education and related services. I consider all of this in light of what was known, or reasonably should have been known, to the School District when it drafted the current IEP in December 2005.
In February 2005 when Student was in 6 th grade, Cathy Mason, M.Ed., Education Specialist at Floating Hospital for Children at Tufts-New England Medical Center, performed an educational evaluation that repeated certain tests that she had administered eleven months earlier. Ms. Mason’s report noted Student’s improvement in reading and decoding but further concluded that Student continued to have significant deficits and limited or no improvement in reading rate and reading comprehension. Ms. Lafontaine, in her testimony, considered the significance of the test scores and findings from these two evaluations, eleven months apart. Ms. Lafontaine was persuasive that, at the time of Ms. Mason’s February 2005 evaluation, it was apparent that Student had (and continues to have) poor skills in all of these areas, other than her ability to read and decode words in isolation. Testimony of Lafontaine; exhibits P-2, P-10, P-14, P-21.
Ms. Lafontaine explained that these two evaluations, which inform the reader where Student is for practical purposes with respect to her ability to function in a classroom, demonstrated that in February 2005 (when Student was in 6 th grade), Student’s instructional level of reading was at the 4 th grade level and her independent level of reading was at the 3 rd grade level. Student was also significantly below the frustration level when she attempted to read 5 th grade reading materials. Eleven months earlier, when the first evaluation was given, Student was at these same reading levels. The two evaluations indicated that Student not only was significantly below her regular education peers, but also had made no gains in reading comprehension during this eleven-month time period. In addition, over the eleven month period, Student’s reading fluency had decreased slightly. Testimony of Lafontaine; exhibits P-2, P-10, P-14, P-21.
On September 17, 2005 (the beginning of Student’s 7 th grade) and approximately seven months after the February 2005 assessment, Student received another speech-language evaluation. Although the various tests and subtests indicated that Student had made improvements in some areas and had regressed in others, two parts of the September 17, 2005 speech-language evaluation were of particular concern to the evaluator as well as to Ms. Lafontaine – the language reasoning and the written narrative. On the language reasoning subtest, which involves “real-life thinking,” Student scored at the 1 st percentile, which is severely below what is expected of children at her age. Student did not understand the higher language concepts, typical of 7 th grade classrooms, as presented in this test. Testimony of Lafontaine; exhibit P-14.
On the second part of the evaluation noted by Ms. Lafontaine – the written narrative portion of the evaluation — Student’s writing was at the “action sequence” level. This is a basic level at which events are simply listed without causal connection. When Ms. Lafontaine observed Student (and her work product) at school approximately six months later (March 6, 2006) when Student was in 7 th grade, Ms. Lafontaine similarly found that Student could not write an expository paragraph, but instead was able only to write three to five related sentences. She noted that writing a paragraph is generally considered to be a 4 th or 5 th grade skill, at the latest. Testimony of Lafontaine; exhibit P-14.20
The September 2005 evaluation concluded (and persuaded Ms. Lafontaine to similarly conclude) that as of the date of the testing (September 2005), Student had “severe” receptive and expressive language deficits. Student’s learning disability, according to all of the credible testimony as discussed later in this Decision, required much more intensive and systematic remediation in order for Student to make effective progress commensurate with her educational potential.
During Ms. Lafontaine’s observation on March 6, 2006, she noticed that Student had difficulties understanding and responding orally in the classroom, similar to what had been reported in the September 2005 evaluation. Student was not able to understand language and then communicate meaningfully at the discourse level (that is, language composed of paragraphs of speech, as compared to several related sentences) without the teacher providing a graphic organizer that gives Student an overall organization of the semantic material presented. Student’s oral language skills relate to her written skills, as explained by Ms. Lafontaine, in that it is very difficult for a child’s written expression to be at a higher level than her oral expression. Testimony of Lafontaine.
In their observations/evaluations in March and April 2006, both Dr. Green and Ms. Lafontaine reviewed Student’s ability to read her 7 th grade social studies book. Student read her textbook aloud, indicating the ability to decode individual words, but Student was unable to explain what she had read. Student was able to answer factual questions but not inference questions – that is, the “why” and “how” questions – that would require Student to think beyond the content. This indicated to the evaluators that when reading occurs without the use of pre-reading strategies, Student has no meaningful comprehension with grade-level materials, and that Student has not internalized reading strategies that she needs for comprehension. Testimony of Lafontaine, Green.
There was also evidence that Student made progress in certain areas during this time period. Ms. Lafontaine noted Student’s significant progress in her ability to read words in isolation. Similarly, Dr. Green testified that Student’s decoding skills have improved significantly with respect to words in isolation. Student’s world geography teacher for 7 th grade also remarked on Student’s progress regarding vocabulary, receiving excellent grades in this area throughout the year. However, Ms. Lafontaine and Dr. Green were persuasive that these limited areas of progress do not reflect any significant gain in Student’s overall language development that would be necessary for her to make effective progress in reading, writing, and speaking. Testimony of Lafontaine, Green, Pearsons.
Student’s 7 th grade teachers and her speech-language pathologist also noted improvements with respect to her self-confidence, ability to work more independently, becoming more productive when working in the classroom, becoming a class leader at times, better utilizing her peers for assistance, and becoming a valued member of the classroom with respect to class participation. It was also recognized that Student performed well when working with maps (consistent with her relative strengths in non-verbal learning) and made significant progress in math where she was placed in a relatively small classroom. Testimony of Pearsons, Hynes, Bennett; Facts, pars. 61, 67, 68, 73.
The testimony from the teachers and the School District’s speech-language pathologist, together with the School District’s written progress reports, provided further information regarding Student’s progress in the classroom. With respect to progress in the areas of Student’s special education needs and comprehension of subject matter material, the evidence reflected a mixed picture. For example, Student’s 7 th grade world geography teacher, whose testimony was both careful and credible, discussed the areas of Student’s progress (that are noted above) but further made clear that Student continued to struggle throughout the year with her reading comprehension. He also noted Student’s increased difficulty in the classroom as the content became more difficult, and he indicated a concern as to how Student would do in 8 th grade social studies. Ms. Lafontaine, in her testimony, had noted that Student was struggling in her world geography and science classrooms. Student’s reported science grades were 71 and 68 (exhibit P-24). Student’s 7 th grade English language arts teacher was the most complimentary to Student, concluding that Student grasped the curriculum, did well in class and probably was in the upper half of the class. The School District’s speech-language pathologist described Student as having made “sufficient, if not great, gains in some areas of her IEP.” Testimony of Pearsons, Hynes, Bennett, Lafontaine; Facts, pars. 62, 64, 67, 68, 73.
The written progress reports by Ms. Vanderleeden for the end of the 7 th grade with respect to reading comprehension and written language simply provided conclusions that Student has made “some” progress and that her progress was sufficient to allow Student “to work towards” achieving her IEP goals in these areas. On questioning from the Hearing Officer, Ms. Vanderleeden did not provide any useful amplification as to what these vague terms referred. The progress report regarding math and the speech-language progress report regarding language were more positive, indicating that Student had made progress by the end of the school year. Student attained at least passing grades in her courses, but there was little, if any, useful testimony from which one might understand what these grades actually measured with respect to Student’s educational progress. Testimony of Vanderleeden; Facts, pars. 71, 72, 74-76.
The School District presented some additional evidence of progress – for example, that Student was able to understand 7 th grade reading, as reflected in quizzes in English language arts class. However, this testimony from the English language arts teacher (Ms. Hynes) and Ms. Vanderleeden seemed vague and conclusory, and was contradicted by the more detailed, credible and persuasive testimony of Ms. Lafontaine and Dr. Green who had the benefit of reviewing formal testing in combination with doing their own informal assessment of Student regarding her ability to read a 7 th grade textbook. In addition, as noted above, the credible testimony of Student’s 7 th grade world geography teacher was that Student continued, throughout the year, to have difficulty with reading comprehension. Testimony of Hynes, Vanderleeden, Lafontaine, Green, Pearsons.
There was also testimony from Ms. Hynes that Student had been able to write a five-paragraph essay in English class, with each paragraph consisting of several sentences. Again, however, the credible and persuasive testimony regarding Student’s writing abilities came from Ms. Lafontaine and Dr. Green, effectively rebutting any inference from Ms. Hynes’ testimony that Student had learned to write an expository paragraph. In addition the testimony of Student’s 7 th grade world geography teacher was that Student continued, throughout the year, to have difficulty constructing a good written paragraph. Testimony of Hynes, Lafontaine, Green, Pearsons.
In summary, there is little, if any, dispute that Student made some progress in some areas, as described above. However, to the extent that these improvements reflect progress in Student’s areas of special education need, the improvements are limited to math and to certain splinter areas of language (such as her improved ability to read and decode words in isolation), rather than reflecting more global progress in any of the areas of Student’s special education language deficits. The result has been negligible or no progress in addressing, for example, Student’s lack of a solid language foundation or her difficulties in four out of the five phonological underpinnings of reading.
I conclude, after careful consideration of all of the evidence that Student has not been making (and likely would not make under the current IEP) anything more than de minimis progress in reading comprehension and in written and oral language, and that this was apparent (or should have been apparent to the School District) in December 2005 when the current IEP was developed.
Student’s educational capacity .
In determining the quantum of educational benefit necessary to satisfy the IDEA, the Supreme Court explicitly rejected a bright-line rule. Noting that children of different abilities are capable of greatly different achievements, the Court instead adopted an approach that requires consideration of the potential of the particular student.21 Lower federal courts,22 as well as Massachusetts special education regulations,23 similarly require the sufficiency of a student’s progress to be judged within the context of her individual potential or capacity to learn.
Student tests in the upper end of the average range in non-verbal intelligence or perceptual reasoning. She has solid visual memory and an ability to learn using that memory. Student has sufficiently solid cognitive skills to learn and internalize learning strategies if given the opportunity to do so. Student appears to be still invested in learning. Facts, pars. 43, 51.
Expert, unrebutted testimony concluded and I so find that Student is far behind compared to her learning capacity, and that within an appropriate educational environment, Student has a significant capacity for further educational growth, particularly with respect to written and oral language, and reading comprehension. Facts, pars. 43, 52, 58, 59.
I find that the special education services pursuant to the School District’s IEPs (particularly for the 7 th and 8 th grades) have resulted (and likely would continue to result) in insufficient progress to allow Student meaningful access to public education consistent with her educational potential. Continuation of the special education services pursuant to the School District’s current IEP likely would not develop Student’s educational potential. I attribute this, principally, to the School District’s failure to tailor its IEP to Student’s unique special education needs – that is, her particular combination of very substantial language-based learning disabilities and attention deficits.
For these reasons, I conclude that the current IEP is not reasonably calculated to provide Student with a free appropriate public education.
Changes necessary to provide Student with FAPE .
Having concluded that the current IEP is not reasonably calculated to provide Student with FAPE, I now consider whether changes can be made to the IEP for the purpose of allowing Student to receive FAPE within the public school setting; and, if not, whether Student requires an out-of-district, substantially-separate, language-based educational program in order to receive FAPE.
The Tufts-New England Medical Center combined neuropsychological, educational, and social work evaluation of Student in March and April 2004 concluded that language-based instruction is necessary for Student. The evaluation explained the essential components of this instruction, including the teaching of reading, writing, and oral language strategies across the curriculum to facilitate continuity, generalization, and internalization. The May 2004 speech-language evaluation by Baystate Health Systems similarly recommended that Student be taught in an integrated language-based classroom, although the evaluator apparently assumed, mistakenly, that Student was then being taught in such a classroom. (In fact, the School District has never offered such a classroom.) Ms. Mason’s February 2005 educational evaluation re-emphasized the importance of providing Student with language-based instruction/accommodations across the curriculum. Ms. Campbell’s speech-language evaluation in September 2005 similarly concluded: “it is strongly recommended that [Student] participate in alternative education programming . . . in which all language skills within subject areas are taught in a logical, sequential manner, and follow the principles of language development theory.” Dr. Green, who conducted an April 2006 psycho-educational assessment of Student, testified that she did not believe that Student can make effective progress commensurate with her abilities in a public school setting unless the school has a substantially separate, language-based program. Finally, Ms. Lafontaine made clear in her testimony that Student requires consistent, language-based instruction integrated throughout her curriculum in order for her to make effective progress. Ms. Lafontaine’s and Dr. Green’s testimony emphasized the necessity of providing this instruction within relatively small classrooms. I find this evidence to be persuasive. Facts, pars. 6, 7, 8, 20, 21,29, 48, 59.
The undisputed testimony was that the School District has never offered such an educational program to Student, nor is one available to her within the School District. Moreover, as Dr. Green explained, it would be practically impossible for the School District to create this educational model in a relatively short timeframe. Facts, par. 58.
For these reasons, I conclude that it is not possible for the School District to make changes within the current IEP for the purpose of allowing Student to receive FAPE within the public schools setting. I further conclude that Student requires an out-of-district, substantially-separate, language-based educational program in order to receive FAPE.
Appropriateness of White Oak .
The School District stipulated that, in the event that I were to determine that Student requires an out-of-district placement in a language-based program in order to receive FAPE, White Oak School is such a program, and the School District would not oppose her placement there. I therefore conclude that placement at White Oak is an appropriate placement for Student.
Accordingly, Parent is entitled to reimbursement of expenses associated with her placement of her daughter there for the current school year, as well as prospective placement at White Oak for the life of the IEP.
Compensatory claims .
In her Hearing Request (and as clarified by the Hearing Officer at the beginning of the evidentiary Hearing), Parent has asserted compensatory claims for the sole purpose of obtaining reimbursement of expenses associated with private placement at White Oak School. Parent has prevailed, above, on her claims pertaining to the current IEP, allowing her to obtain reimbursement and prospective placement. In addition, t he First Circuit has concluded that a compensatory education claim may not be used to obtain tuition reimbursement.24
For these reasons, I do not consider further Parent’s compensatory claims.
Reduction or denial of reimbursement based on refusal to consent to testing .
The IDEA provides that reimbursement for a parent’s unilateral private placement may be reduced or denied
if, prior to the parents’ removal of the child from the public school, the public agency informed the parents, through the notice requirements described in section 1415(b)(3) of this title, of its intent to evaluate the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the child available for such evaluation; . . . .25
It is not disputed that the School District informed Parent of its intent to evaluate Student regarding reading, and that Parent refused to provide consent to the reading evaluation.26 Accordingly, I must consider whether Parent’s award of reimbursement for tuition and related expenses for 8 th grade at the White Oak School should be reduced or denied.
I note, at the outset, that the statute on its face,27 as well as BSEA Hearing Officer decisions interpreting similar parts of this statutory section,28 make clear that I have discretion as to whether the School District’s obligation to reimburse Parents should be reduced and, if so, by how much.
In exercising this discretion, I consider the equities.29 I seek to understand the purpose of the statute and whether the purpose has been frustrated by Parent, with the result that the School District has been harmed. Just as the First Circuit has concluded that failure of a school district to follow IDEA procedures should have no legal consequence unless educational harm can be shown,30 so too Parent should not be penalized for failing to comply with a procedural requirement if her failure has not harmed the School District.
The statutory requirement of allowing a school district to obtain relevant testing prior to a parent’s removal of his or her child from the public schools serves the important purpose of giving the school system an opportunity, before the child is removed, to obtain expert, evaluative information regarding the student’s special education needs, determine whether a free appropriate public education can be provided in the public schools, and make any adjustments to its IEP .31
In light of the existing evaluations in the instant dispute, including the reading assessments that were done by Parent’s evaluators Dr. Green and Ms. Campbell prior to and subsequent to the School District’s request, it seems unlikely that an additional reading evaluation by the School District would have added outcome-determinative information regarding the question of whether Student could receive FAPE within the public school programs of the School District.32
I also note that a school district may seek to obtain from the BSEA an order overriding a parent’s refusal to consent. As a general rule, the federal case law is clear, as are the opinions of BSEA Hearing Officers, that a school district is entitled to do its own testing even when comparable testing has been completed by a parent.33 Presumably, if a school district believed that it would be substantially harmed in the event that it did not conduct its own evaluation, it would seek reversal, through the BSEA, of a parent’s refusal.34
In its closing argument, the School District points out that it had, in fact, filed a Hearing Request with the BSEA to reverse Parent’s consent refusal. The dispute regarding Parent’s refusal was before me as the Hearing Officer. The School District’s closing argument further explains that when it determined that any order by me as the Hearing Officer would likely be issued after the Parent’s private reading evaluation (by Dr. Green) would be completed, it withdrew the Hearing Request. See School District’s closing argument, page 32.
This information is not included within the evidentiary record and is provided, for the first time in the present dispute, through the School District’s closing argument. Accordingly, I do not consider this information to have probative value, but it does provide an admission that, for reasons outside of its control, the School District decided, after initially filing with the BSEA, that it would no longer be useful to conduct its own reading evaluation. This makes it more difficult for the School District to claim that it was harmed by Parent’s refusal to consent.
The School District has provided no basis upon which I may conclude that it was likely harmed by Parent’s refusal to consent. Rather, the weight of the relevant evidence is to the contrary. For these reasons, I decline to reduce the amount of reimbursement due Parent.
ORDER
The School District’s current IEP for Student is not reasonably calculated to provide Student with a free appropriate public education, nor can it be modified so that Student would receive a free appropriate public education within the public schools.
In order to receive a free appropriate public education, Student requires a substantially-separate, language-based program for children with learning disabilities. The White Oak School is such an appropriate program for Student.
Accordingly, the School District shall forthwith amend Student’s current IEP to provide for placement at the White Oak School. In addition, the School District shall reimburse Parent for her out-of-pocket expenses associated with Student’s placement at the White Oak School for the current school year.
By the Hearing Officer,
William Crane
Dated: October 26, 2006
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
THE BUREAU’S DECISION, INCLUDING RIGHTS OF APPEAL
Effect of the Decision
20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must obtain such stay from the court having jurisdiction over the party’s appeal.
Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).
Compliance
A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appeals contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).
Rights of Appeal
Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).
An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).
Confidentiality
In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
Record of the Hearing
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.
1
Because the IEPs are similar and were prepared within one month of each other, I consider only the second of these two IEPs, which is the current IEP, for purposes of this Decision.
2
20 USC 1400 et seq . Congress reauthorized and amended the IDEA in 2004, with changes to take effect on July 1, 2005. Unless otherwise indicated, references in this Decision to the IDEA are to IDEA 2004.
3
MGL c. 71B.
4
20 USC 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A); MGL c. 71B, ss. 2, 3.
5
Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley , 458 U.S. 176, 188-89 (1982) (internal quotation marks omitted).
6
See , e.g ., Lt. T.B. ex rel. N.B. v. Warwick School Committee , 361 F.3d 80, 83 (1 st Cir. 2004) (citations and internal quotation marks omitted) ; In re: Arlington , BSEA # 02-1327, 37 IDELR 119, 8 MSER 187, 193-195 (SEA MA 2002) (collecting authorities).
7
Roland M. v. Concord Sch. Comm., 910 F.2d 983, 992 (1st Cir. 1990). In the instant dispute, both parties rely on progress reports and evaluations completed subsequent to the current IEP in order to shed light on what was known or should have been known when the IEP was developed. Therefore, I also will consider these subsequent reports and evaluations for this purpose.
8
20 USC 1412 (a)(10)(C)(ii); Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 370 (1985).
9
Schaffer v. Weast , 126 S. Ct. 528, 163 L. Ed. 2d 387 (2005) (burden of persuasion in an administrative hearing challenging an IEP is placed upon the party seeking relief; a party who has the burden of persuasion “ loses if the evidence is closely balanced” ).
10
Ms. Lafontaine testified (and her resume reflects) that she has significant experience and expertise as a speech-language pathologist, both as the current supervising speech-language pathologist at the Curtis Blake School and as a consultant and trainer, principally to school districts in Western Massachusetts. Exhibit P-28 (resume).
11
Dr. Green testified (and her resume reflects) that from 1997 to the present, she has been a private practitioner and consultant to school districts in Massachusetts and Vermont, specializing in the evaluation of students with learning disabilities and recommendations for modifications and accommodations. Exhibit P-26 (resume).
12
E.g., 20 USC 1400(d)(1)(A) (purpose of the federal law is to ensure that children with disabilities have FAPE that “emphasizes special education and related services designed to meet their unique needs . . . .”); 20 USC 1401(25) (“special education” defined to mean “specially designed instruction . . . to meet the unique needs of a child with a disability . . .”); Honig v. DOE , 484 U.S. 305, 311 (1988) (FAPE must be tailored “to each child’s unique needs”); Burlington School Committee v. Mass. Dept. of Ed. , 471 US 359, 361 (1985) (federal law entitles eligible student “to receive at public expense specially designed instruction to meet his unique needs”); Smith v. Fitchburg Public Schools , 401 F.3d 16 (1 st Cir. 2005) (“IDEA was enacted ‘to ensure that all children with disabilities have available to them a free appropriate public education … designed to meet their unique needs’”, quoting 20 U.S.C § 1400(d)(1)(A)) .
13
Lenn v. Portland School Committee , 998 F.2d 1083, 1090 (1 st Cir. 1993). See also 20 USC 1400(d)(4) (purpose of the federal law is “ to assess, and ensure the effectiveness of, efforts to educate children with disabilities”) ; Roland v. Concord School Committee , 910 F.2d 983, 991 (1 st Cir. 1990) (“Congress indubitably desired ‘effective results’ and ‘demonstrable improvement’ for the Act’s beneficiaries”); Burlington v. Department of Education , 736 F.2d 773, 788 (1 st Cir. 1984) (“objective of the federal floor, then, is the achievement of effective results–demonstrable improvement in the educational and personal skills identified as special needs–as a consequence of implementing the proposed IEP”); Manchester-Essex Reg’l Sch’l Dist. Sch’l Comm. v. Bureau of Special Education Appeals of the Mass. Dept. of Education , CA No. 05-10922-NMG (D.Mass. September 27, 2006) (Gorton, J.) (utilizing the First Circuit standard quoted in the text above).
14
603 CMR 28.05(4)(b) (IEP must be “designed to enable the student to progress effectively in the content areas of the general curriculum”); 603 CMR 28.02(18) (defining Progress effectively in the general education program ).
15
Rowley, 458 U.S. at 192. A number of lower federal courts have similarly concluded that the IEP must provide a student with meaningful access to education or that the IEP must be reasonably calculated to enable the child to receive meaningful educational benefits. E.g ., Frank G. v. Board of Educ. of Hyde Park , — F.3d —-, 2006 WL 2077009 (2 nd Cir. 2006); Deal v. Hamilton County Board of Education, 392 F.3d 840 (6 th Cir. 2004); Shore Regional High School Bd. of Educ. v. P.S. , 381 F.3d 194, 198 (3d Cir. 2004); Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) . See also D.F. and D.F. v. Ramapo Central School District, 348 F.Supp.2d 92 ( S.D.N.Y. 2004) ( “’Minimal progress’ and ‘limited progress’ is not evidence of ‘meaningful’ access to education. ‘Minimal’ and ‘limited’ progress is evidence of opportunity for only trivial advancement.”).
16
MGL c. 71B, s. 1 (definition of “special education”). See also MGL c. 69, s. 1 (“paramount goal of the commonwealth to provide a public education system of sufficient quality to extend to all children the opportunity to reach their full potential ”); 603 CMR 28.01(3) (identifying the purpose of the state special education regulations as “to ensure that eligible Massachusetts students receive special education services designed to develop the student’s individual educational potential”). See also Mass. Department of Education’s Administrative Advisory SPED 2002-1: Guidance on the change in special education standard of service from “maximum possible development” to “free appropriate public education” (“FAPE”), Effective January 1, 2002 , 7 MSER Quarterly Reports 1 (2001) (appearing at www.doe.mass.edu/sped) (Massachusetts Education Reform Act “underscores the Commonwealth’s commitment to assist all students to reach their full educational potential”).
17
Lenn , 998 F.2d at 1086.
18
Id . See also Rowley at 197, n.21.
19
See, e.g ., Lt. T.B. ex rel. N.B. v. Warwick Sch. Com., 361 F.3d 80, 83 (1st Cir. 2004) (“IDEA does not require a public school to provide what is best for a special needs child, only that it provide an IEP that is ‘reasonably calculated’ to provide an ‘appropriate’ education as defined in federal and state law.”).
20
Note that Ms. Hynes testified to the contrary, and her testimony is discussed below.
21
Rowley , 458 U.S. at 202.
22
E.g., Deal v. Hamilton County Board of Education, 392 F.3d 840 (6 th Cir. 2004) (“IDEA requires an IEP to confer a ‘meaningful educational benefit’ gauged in relation to the potential of the child at issue”); Shore Regional High School Bd. of Educ. v. P.S. , 381 F.3d 194, 198 (3d Cir. 2004) (“IEP must be reasonably calculated to enable the child to receive meaningful educational benefits in light of the student’s intellectual potential”) (Alito, J.); Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) (progress should be measured with respect to the individual student, not with respect to others); Mrs. B. v. Milford Board of Ed. , 103 F.3d 1114, 1122 (2d Cir. 1997) (“child’s academic progress must be viewed in light of the limitations imposed by the child’s disability”); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990) (“academic potential is one factor to be considered”).
23
603 CMR 28.05(4)(b) (Student’s IEP must be “designed to enable the student to progress effectively in the content areas of the general curriculum”); 603 CMR 28.02(18) (“ Progress effectively in the general education program shall mean to make documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to chronological age and developmental expectations, the individual educational potential of the child , and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district [emphasis supplied].”).
24
Greenland School District v. Amy N ., 358 F.3d 150, 152 (1st Cir. 2004).
25
20 USC 1412 (a)(10)(C)(iii)(II).
26
On January 18, 2006, the School District received Parent’s refusal to consent to testing regarding reading. Parent wrote that she was arranging for reading assessments to be conducted privately. Exhibits P-21, S-44.
27
20 USC 1412 (a)(10)(C)(iii)(II).
28
E.g., In Re: Sharon Public Schools , BSEA # 06-1557, 106 LRP 53041 (MA SEA 2006); In Re: Sudbury Public Schools , BSEA # 05-4726 and 05-4827, 106 LRP 287, 11 MSER 260 (MA SEA 2005).
29
See Diaz-Fonseca v. Commonwealth of Puerto Rico , 451 F.3d 13 (1 st Cir. 2006) (parent’s claim for reimbursement for expenses for private educational services involves an equitable remedy).
30
Roland M. v. Concord Sch. Comm., 910 F.2d 983, 994-95 (1st Cir. 1990).
31
Cf. Greenland School District v. Amy N. , 358 F.3d 150, 160 (1st Cir. 2004) (explaining a similar purpose for the prior notice requirement within the same section of the IDEA).
32
This is not to say that a School District reading assessment would not serve any purpose for the School District with respect to its negotiation and litigation of the instant dispute. Had the School District conducted its own reading assessment of Student, the assessment would have informed the School District in its settlement discussions with Parent or may possibly have assisted the School District in its defense before the BSEA.
33
E.g., M.T.V. v. Dekalb County School District , 446 F.3d 1153 (11 th Cir. 2006) (collecting cases); In Re: Lowell , BSEA # 02-4068, 8 MSER 154 (MA SEA 2002) (Crane, HO).
34
The relevance of a school district’s seeking an order from the BSEA is further supported by the language of the IDEA. The IDEA consistently uses the word “consent” and the phrase “does not provide consent” when referring to a parent’s agreeing to or refusing to agree to an evaluation (20 USC 1414(a)(1)(D)(i) and (ii), and 1414(c)(3)), but then, for the only time within the regulations, uses the phrase “did not make the child available for such evaluation” to explain, in the statutory language quoted in the text above, when reimbursement to a parent may be reduced or denied. It is fair to assume that the drafters of the IDEA intentionally used different language in different parts of the statute to distinguish between a refusal to consent, which may be overturned by a BSEA Hearing Officer, and a subsequent failure to make a student available for testing once the refusal has been overturned. In the instant dispute, Parent declined consent but there is no indication that Parent would have failed to make her daughter available for testing in the event that a Hearing Officer had overturned her consent refusal.