COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
Re: Student v. Taunton Public Schools
BSEA # 01-0462
DECISION
This decision is issued pursuant to 20 U.S.C. 1401 et seq. (the “IDEA”), 29 U.S.C. 794, M.G.L. chs. 30A, 71B and the regulations promulgated under said statutes.
A Hearing in the above referenced matter was convened on April 3, 2001 at the Bureau of Special Education Appeals (hereinafter, “BSEA”), in Malden, MA, and on April 30, 2001, in Taunton, MA, before Rosa I. Figueroa, Hearing Officer. Parents’ Closing Argument was hand delivered on the last day of the Hearing and School’s Closing Argument was received at the BSEA on May 10 th . The record closed on May 11, 2001.
Those present for all or part of the Hearings were:
Student’s Mother
Student’s Father
Student
Mr. Robert Augustine Student’s/Parents’ Advocate
David T. Gay, Esq. Attorney for the Taunton Public Schools
Mr. Robert Murray Director of Special Education, Taunton Public Schools
Ms. Susan Grefe Guidance Counselor, Taunton Public Schools
Patrick F. Jackman Head Master, Taunton High School
Ms. Natalie Broderick Psychologist, Taunton High School
School Exhibits 1 through 29 and Student’s/Parents’ Exhibits 1 through 17 were admitted in evidence, and were considered in issuing this decision. School Exhibit 29 was admitted over the Parent’s objection.
ISSUES PRESENTED
1. Whether the educational program proposed by Taunton High School offers the Student a free appropriate public education in the least restrictive setting designed to maximize the Student’s maximum potential;
2. Whether the Learning Prep School, or a similar type of program, constitutes the appropriate least restrictive placement that can assure the Student’s maximum feasible development.
POSITION OF THE PARTIES
School’s Position:
Taunton Public Schools (hereinafter, “Taunton”) asserts that the Student’s difficulties can and have been appropriately addressed in Taunton and it is prepared to provide the Student with any services required so that he can continue to make progress. When entering the high school the Student went through a period of adjustment that impacted on his academic progress. Taunton has evidenced improvement between the Student’s freshman and sophomore years. If Taunton has not been able to meet all of the Student’s needs it is due to the Parents lack of cooperation in the IEP process and rejection of services that would have benefited the Student. One of the student’s main problem involves his inability to complete assignments which Taunton partially blames on the Parents’ failure to provide the necessary support. Taunton argues that with proper parental support, assistance in the homework assignments and the implementation of the IEP program outlined in the IEP of June 2000, the Student would be successful in Taunton High School.
Parent’s/Student’s position:
The Student/Parents assert that historically Taunton has failed to offer the Student services that allowed him to make effective progress. As a result of the Student’s lack of academic success he has developed emotional problems associated with feelings of inadequacy. The services provided by Taunton were de minimis so it owes the Student three years of compensatory education. The current IEP again fails to propose services that would enable the Student to maximize his educational potential because it does not offer the highly individualized structured approach to teaching required by the Student.
The Student/Parents argue that the Student requires daily language tutorials in the areas of reading, writing and organizational skills. He also needs small group classes in math, science, social studies and language arts. They request that the Student be placed at the Learning Prep School, or other similar type of program, at public expense, where the Student would benefit from a small group language based program with a multi-sensory approach, implemented throughout the curriculum.
FINDINGS OF FACT
· Born on February 25, 1985, Student is a sixteen year old enrolled at Taunton High School. (PE-2) His intellectual functioning is within the average range. (PE-7; PE-10; PE-11; PE-14) He presents with dyslexia and a possible attention deficit without impulsivity. (SE-7; PE-10; PE-11)
· The Student has received special education services in Taunton since he entered the first grade. (Testimony of the Parent; SE-8)
· According to the Parent, the Student began reading in the 4 th grade. (Testimony of the Father)
· Student underwent a neuropsychological evaluation with Dr. Scott Sokol at Massachusetts General Hospital (hereinafter, “MGH”) on June 7, 1996 to assess attentional and learning difficulties. (PE-9; SE-16) He found the Student to be of above average intelligence presenting with a mixed learning disability of moderate severity, consistent with a right-hemisphere (nonverbal) learning disability. (Id.) Dr. Sokol recommended that the Student’s teachers be made aware of the Student’s disabilities so that the material could be tailored to his particular learning style, that instructions be repeated more than once and that tests be given orally. One to one tutoring in spelling and reading was recommended at a rate of three to five sessions of 45-minutes to an hour per week, with a qualified reading specialist, using a multisensory modality, such as Orton Gillingham or Wilson given that the type of dyslexia with which he presented was phonologically based. In math, a resource room approach or one to one tutoring was recommended along with use of a computer program for the home to drill mathematical facts through games. (PE-9; SE-16) Dr. Sokol warned about the importance of monitoring the Student’s emotional state to avoid the risk for development of a poor self-esteem and the development of a conduct disorder. This could be addressed through supportive psychotherapy or counseling. (Id.)
· On November 22, 1996 the Student’s Team gathered to discuss services for the Student for the period covering November 22, 1996 through November 2, 1997, following a reevaluation. (SE-9) The Student’s Instructional Profile section of the IEP offered the Student 3 hours per week after school tutoring. This IEP offered a 502.3 prototype IEP with direct services to the Student in Language Arts for 92 minutes per day and 46 minutes of support twice per week, all in the Learning Center. (SE-9) This IEP, which was sent to the Parents on December 12, 1996, was accepted in full by them on January 10, 1997. (Id.) Prior to this IEP the Student received services under an accepted 502.3 prototype program IEP for the period covering September 4, 1996 to June 21, 1997. (SE-10)
· Between 1996 and 1998 Taunton provided the Student after school one to one Orton Gillingham instruction in the home. (PE-17; SE-19)
· On November 20, 1997 the Student’s Team met to discuss services for the Student for the period covering November 21, 1997 through November 22, 1998. (PE-6; SE-8) The Team recommended 47 minutes each for English and Reading services daily under a 502.3 prototype program IEP. Under the Student’s Instructional Profile section of the IEP, Taunton stated that the Student would be tutored for two hours weekly after school. Taunton sent this IEP to the Parents on December 8, 1997 and the Parents accepted the plan in full on January 14, 1998. (Id.)
· On November 23, 1998 the Student’s Team met in Taunton. The Student’s IEP for the period covering November 24, 1998 through June 20, 1999, called for a 502.2 prototype program, under which Student was provided with 46 minutes daily of direct services Language Arts at the Learning Center. (PE-5; SE-7) This IEP, forwarded by Taunton on December 11, 1998, was accepted in full by the Parents on December 21, 1998. (Id.)
· The Student took the 8 th grade MCAS in 1999. (SE-26) He failed History and Social Science, Mathematics and Science and Technology. (Id.) In English he received a “needs improvement.” (SE-26)
· The Student’s Team was convened on May 5, 1999 to recommend services for the period covering September 2, 1999 through the June 20, 2000. (PE-4; SE-6) The IEP recommended 46 minutes of direct services in English daily under a 502.2 prototype program IEP. The IEP, forwarded to the Parents on May 25, 1999, was accepted in full on January 24, 2000. The acceptance however, was conditioned on the results of a reevaluation of the Student scheduled for March 2000. (PE-4; SE-6)
· Following the Student’s Team meeting of May 5, 1999, during which services for the Student’s ninth grade year were discussed, the Parents did not attend any other Team meetings until the Team meeting of December 18, 2000. (Testimony of the Mother; SE-2; SE-5; SE-6; SE-7; SE-8; SE-9; SE-10)
· At Taunton’s request, the Parents consented to an evaluation of the Student on January 25, 2000. (SE-29) Said evaluation would include educational assessments, a psychological evaluation, administrative and teacher assessments. (Id.)
· On February 28, 2000, Taunton conducted a psychological evaluation of the Student at the request of the Parents and as part of his 3 year re-evaluation . (PE-8; SE-11) the evaluation consisted of a clinical interview, a review of the records, consultation with school staff, Wechsler Intelligence Scale for Children-III, Sentence Completions, Thematic Apperception Test, (selected cards) and the Kaufman Test of Educational Achievement. The WISCS-III showed a significant discrepancy (27 points) between the Student’s verbal (89) and performance (116) scales, as well as between the verbal comprehension and perceptual organization indices (29 points.) ( PE-8;SE-11; SE-12; SE-13) In her evaluation, Taunton’s school psychologist Natalie Broderick noted that:
· The Student’s “spelling reflect[ed] Orton Gillingham training he has had however he often added unneeded phonemes or substituted same sound configurations. His grapho-motor skills do not appear automatic as there were several instances where he needed to stop and think or correct b/d reversals. During self-directed arithmetic tasks, the Student had a hard time getting started and following through on problems until completed. His attention obviously wandered and he showed little awareness or self-monitoring in his work habits during this evaluation.
Psychologically, [Student] appears to be suffering from an underlying sense of incompetence most likely academic/school related. He reports he rarely does homework and has a hard time figuring out what to do once he leaves the classroom. From previous reports, it appears [Student’s] motivation and effort have been problematic since early elementary school. [Student] recognizes his lack of effort particularly in not doing homework nor staying after school for any extra help if he doesn’t understand something. It is likely that the substantial energy required for [Student] to focus and maintain his attention to academic tasks is more than he is willing to expend at this time. His academic self-concept is quite low. Fortunately [Student] seems to have healthy opportunities to develop other areas of interest and skill. He reports enjoying archery, camping, and horseback riding. (PE-8; SE-11)
· Ms. Broderick recommended “consideration of additional reading instruction focusing on syllabication and complex word analysis to encourage automaticity; development of keyboarding skills to compensate for spelling deficit… to use word processing software to check spelling, grammar and punctuation; breakdown of long term assignments into smaller chunks with frequent checks to make sure he is on target; [Student] should be encouraged to seek help after school if he does not understand classroom material; use of agenda book with frequent checks to make sure homework is completed in a timely manner.” (PE-8; SE-11)
· The Student’s Team convened on June 12, 2000, to discuss services for the Student’s 9 th grade. (PE-3; SE-5) This IEP covered the period from September 6, 2000 through June 22, 2001 and offered services to the Student under a 502.3 prototype program. Direct special education services under this IEP included English, transition Math and Reading at a rate of 42 minutes per day each in a six-day cycle. This IEP was forwarded to the Parents on June 15, 2000, and it was rejected in full by the Parents on July 7, 2000. On September 25 th the Parents then decided to postpone their decision until an independent evaluation was completed. (PE-3; SE-5)
· Taunton agreed to fund an Independent Evaluation of the Student at Massachusetts General Hospital on September 27, 2000. (SE-20)
· On October 6, 2000, the Student was independently evaluated at Massachusetts General Hospital by Gretchen Timmel, M.Ed. (PE-7; SE-14) At the time of this evaluation the Student was a 15.7 year old tenth grader. The Student was administered the Wechsler Abbreviated Scale of Intelligence; Peabody Picture Vocabulary Test-IIIB; Expressive Vocabulary Test; FAS Test; Strrop Color and Word Test; Trailmaking Test Forms A and B; Rey Osterrieth Complex Figure Drawing Task; Conner’s Continuous Performance Scale; Wisconsin Card Sorting Test; Children’s Memory Scale; Wepman Auditory Discrimination Test; Rosner Test of Auditory Skills; Illinois Test of Psycholinguistic Abilities; Beery Buktenika Developmental Test of Visual Motor Integration; Woodcock Reading Mastery Test- Form G; Wide Range Achievement Test 3 (Blue Form); Gates MacGintie reading Test, Level 5/6 Form L; Test of written Language; and the Key Math Diagnostic Arithmetic-Form A. (PE-7; SE-14)
· The Student was found to function within the average range of intelligence with no significant discrepancy within the verbal (105) and performance (110) IQs, and vocabulary as well as an understanding of spatial relationships in the superior range as evidenced by the Wechsler Abbreviated Scale of Intelligence. Abstract reasoning however, fell within the lower limits of the average range. Receptive language skills were found to be within the normal range but expressive language skills were in the low average levels with some difficulties in word retrieval. (PE-7; SE-14) The results of the Woodcock Reading Mastery Test- Form G placed his general sight reading skills in the late 4 th to early 5 th grade level. Decoding skills and structured reading comprehension fell within the 4 th grade level except in an independent test of reading comprehension that involved analysis of passages where he scored within the 5 th grade level. The Student’s spelling skills fell within the 3 rd grade level. The results of these tests supported the presence of dyslexia. It also showed that the Student presented with difficulties with attention and concentration. His executive functioning abilities were found to be within the lower limits of the average range with evidence of difficulty of recall of the task completed at a later time. The evaluator was however, impressed with the Student’s above average range performances on immediate and delayed recall of content material, except for recall of digits and sequencing which the tester attributed to attentional difficulties and weaknesses with reorganization of auditory material. (PE-7; SE-14)
· Ms. Timmel recommended services by a “properly trained tutor in the use of a rule based reading program such as the Wilson or the Orton Gillingham for at least four 45 minute periods per week to address his specific reading disorder”; that “directions and long narratives be read to him in testing situations”; “outlines and notes for all lecture classes should be provided to the Student unless he were allowed use of a word processor in classes; a word bank should be provided when responding to fill in the blanks type questions on exams; provision of “curriculum support to bridge the gap between written language… [with] emphasis in the tutorial of his written narratives and essays as well as the organization of his work in general”; Student would “benefit from the services of a pediatric neurologist who specializes in attentional difficulties as they pertain to education.” (PE-7; SE-14)
· During years 1995-1996, 1996-1997, 1997-1998 and 1998-1999 the Student’s grades went steadily downward from solid As and Bs with some Cs, to B+ to F during the 1998-1999 school year. (PE-12; SE-21; SE-27) During the latter year, grade distribution was three Cs (Language Arts, Science and Reading), two Fs (Honors Mathematics and Physical Education), two Bs (Social Studies and Art) and two B+ (Health and Home Economics). (PE-12; SE-21) On April 29, 1999 the Student and his Parents were advised by Taunton that the Student’s third term grades presented a substantial risk of non-promotion. (SE-23)
· In the 1999-2000 school year the Student obtained the following grades: D in English I Sp, F in Composition St, F in Transition Math, F in Math Connection, F in Introduction to Social Studies, D in Introduction to Techno, F in Wood I, F in Physical Science St, and F in Science Connect. His conduct was very good but some of the teachers commented that he failed to make up work, did not participate in activities, was easily distracted, presented inconsistent effort, and that his homework was often incomplete. (PE-12; SE-21)
· The Student attended summer school during the summer of 2000 and successfully passed Science I, Transitional Math and Introduction to Social Studies. (SE-21)
· The Team reconvened on December 18, 2000, to discuss the result of the Student’s independent evaluations. As a result, an IEP for the period covering December 18, 2000 through June 22, 2001 was issued. The current performance levels section states that decoding and encoding skills were low and that the Student’s attention was short at times. (PE-2; SE-2) The Student was offered direct services in other settings for English and Reading at a rate of 42 minutes times 6 each. On December 22, 2000 the Director of Special Education for Taunton, Mr. Bob Murray, forwarded the IEP to the Parents. This IEP was rejected in its entirety on January 14, 2001. (Id.)
· The Student’s grades for the first three quarters of the 2000-2001 school year are: D in applied Math I, D in Math Strategies St, C+ in English II Sp, F/D in World History I St, D in World History II, C+ in Graphic Arts, C in Biology St, D in Physical Education and A in Conduct. (SE-22) The teachers presented similar comments to those expressed during the previous year. In general the Student was seen as a bright, quiet but non-productive individual who did not put enough effort towards completing homework, which was often missing, who put little effort toward understanding the material, and did not work well alone. (SE-25)
· The Parents filed their request for hearing on December 18, 2000 and asked that a Pre-Hearing Conference be scheduled. The Pre Hearing was held on January 30, 2001.
· As a result of a Pre-Hearing Conference, Susan Grefe, Guidance Counselor in Taunton, wrote to the Parents on February 9, 2001 to schedule a meeting. (SE-3) The meeting was scheduled for February 28 th but due to unavailability of the Parents it was postponed. (SE-4)
· In March/April 2001 the Student participated in a few counseling sessions with Ms. Broderick in Taunton. He however missed the two sessions immediately preceding the second date of Hearing. (Testimony of Ms. Broderick)
RULINGS OF LAW
The parties agree that the Student is an individual with a disability as defined by the IDEA and M.G.L.c. 71B. Student presents with learning disabilities as well as emotional issues. The Parties’ disagreement centers on determination of the least restrictive, free, appropriate public educational placement reasonably calculated to maximize the Student’s potential. David D. v. Dartmouth School Committee , 775 F.2d 411 (1 st Cir. 1985). The Parent/Student argue that the Student’s needs can only be met in a private residential program. The Parent/Student further argue that Taunton failed to meet the Student’s educational needs over the past several years. The evidence supports a finding that the Student’s needs can be met through the special education program in Taunton which constitutes the least restrictive environment that can reasonably meet the Student’s needs while providing for his maximum educational benefit. David D. v. Dartmouth School Committee , 775 F.2d 411 (1 st Cir. 1985). My reasoning follows:
Parents’ Request for Compensatory Education Based on Taunton’s Failure to Provide Adequate Services During the Last Three Years:
There is ample support in the record for Student to receive special education services in English, Reading, Math, Organizational Skills and academic support as needed and counseling as per the recommendations of Taunton and the independent evaluators. (SE-11; SE-12; SE-13; SE-14; SE-15; SE-16; SE-17; SE-18) While some or all of these services have been offered by Taunton at different times, not all of them have been implemented simultaneously. The evidence shows that the Parents’ decision not to cooperate with Taunton in implementing an IEP that addressed all areas of need made it difficult for Taunton to actually offer services that would have met the Student’s needs.
The United States Supreme Court in Burlington v. U.S. Dept. Of Education , EHLR 556:389 (US S CT, 1985), granted courts broad authority to fashion relief that is appropriate under the IDEA. In said case equitable factors were considered in allowing the parents to obtain reimbursement for unilaterally placing the Student in a private school when they showed that the IEP offered by the school district did not offer the Student a FAPE. If a parent is not able to place a child who is being denied a FAPE, they can request that a court grant compensatory services as an equitable relief. To achieve this, it must be shown that the denial of FAPE was more than de minimus. See, e.g., Carlisle Area School District v. Scott P ., 3d 520, 537 (3d Cir. 1995) Since compensatory services are an equitable relief, the conduct of the parties must be assessed to determine how it may impact on a possible award. The specific period of time during which the specific services were denied must be identified, as well as the type and extent of harm caused to the child as a result of the denial of FAPE. In the case at bar, the Parents argue that the denial of appropriate services has occurred during the past three years. According to them, the main areas where services were not offered were in Reading, Math, English and assistance with homework. Under the facts of the case at bar it is difficult to assess responsibility only to Taunton because of the Parents’ own actions.
Given the Parents’ allegations that the Student did not receive adequate services during the 1998-1999, 1999-2000 and 2000-2001, I first turn to the IEPs for those 3 school years. Services for the 1998-1999 school year were rendered as a result of the Team meetings of November 20, 1997 and November 23, 1998. (PE-6; SE-8; PE-5; SE-7) One of the Parents was present at each of these Team meetings and nothing in the record indicates that they did not understand what was being presented and offered to the Student at that time. The signature pages of the IEP for 1997-1998 and 1998-1999 show that the Parents accepted the IEPs in full. (PE-6; SE-8; PE-5; SE-7) Nothing in the record indicates that the Parents accepted the IEP under duress but rather that acceptance was a voluntary act. The record further shows that Taunton provided the services as per the IEP.
The IEP covering the period from 1999-2000 followed a Team meeting of May 5, 1999. The IEP offered the student 46 minutes of direct services in English daily, under a 502.2 prototype program (PE-4; SE-6) During that year (the his 8 th grade) the Student took the MCAS and failed three subjects. The Parents did not respond to the proposed IEP until January 24, 2000 when they accepted it in full, conditioned on the results of a school evaluation which took place in February of 2000. Taunton has offered the services delineated in this IEP through the time of the Pre- Hearing Conference when the Parties agreed to increase services for the Student pending this decision. The Parents did not attend the Team meeting of June 2000 and rejected the IEP presented to them following that Team meeting, as well as the IEP that followed the Team meeting of December 2000. (SE-5; PE-3; SE-2; PE-2)
When the Student transferred from the middle school to the high school in 1999, Ms. Grefe made several attempts to meet with the Parents and re-engage them in the Team process. Between 1998 and 2001, Taunton offered the services as per the last agreed upon IEP but it attempted to increase services which it was unable to provide since they were not accepted by the Parents. In November of 1999 the Mother brought her concerns to the Student’s teachers and Ms. Grefe attempted to meet with the Father to obtain his consent for an evaluation of the Student. On January 25, 2000, she was able to meet with him and obtain consent to perform the evaluations. (Testimony of Ms. Grefe; SE-29) When the evaluations were completed, Taunton attempted to convene the Team in March, April and May 2000, but the Parents could not attend any of these meetings. A meeting was then set for June 12 th and the Parents were invited. On the date of the Team meeting they did not attend and Taunton decided to convene without them. (Testimony of Ms. Grefe) The attendance sheet reflects that the Student was a participant in the meeting. (SE-5) As a result of the meeting, Taunton generated an IEP which offered the Student a Wilson Reading program, an inclusion Math class and special needs English. The plan was sent to the Parents on June 15 th , and the Parents rejected the plan on July 7, 2000. (SE-5)
During the 1999-2000 school year the Student participated only in special needs English as per the accepted IEP of May 5, 1999. (Testimony of Ms. Grefe) According to Ms. Grefe and Ms. Broderick, had the Team been able to convene in March of 2000 after the evaluations were completed, the same services that were proposed in June 2000 could have been made available to the Student much earlier. Without the benefit of those services the Student faced non-promotion by the end of the school year. The Student was enrolled in Math, Social Studies and Science during the summer of 2000 and was able to pass all three courses. (Id.) I find that the IEP presented to the Parents in June of 2000 would have offered the Student services likely to address the areas of need identified during the evaluation of February 2000.
Taunton further argued that even when the services they had recommended could not be implemented because of lack of parental consent, and even when the Student had difficulties adjusting to high school, he still made progress. (Id.) The Parents dispute Taunton’s claim that the Student’s grades and overall performance show that he has made progress. I find that given the Student’s cognitive abilities he is capable of doing better than his grades show he has done if the appropriate supports are put in place and the Student chooses to access them consistently. From a legal standpoint however, Taunton has provided the services as per the last agreed upon IEP, that of May 5, 1999, accepted in January of 2000. (PE-4; SE-6)
The Parents testified that while in the beginning they were willing to work with Taunton, the Student’s lack of academic progress caused them a great deal of frustration resulting in their unwillingness to continue to work with the Taunton personnel from 1999 forward. (Testimony of the Parents and Ms. Grefe) The Parents did not believe that much of what Taunton offered the Student was helpful. For instance, the Parents asserted that the pull out model for reading and literacy impaired the Student’s progress in regular academics. (Testimony of the Parents) They also did not understand why the Orton Gillingham, offered on a one to one basis in the home, could not be offered during school hours. The breakdown of communication and cooperation between the School and the Parents, at a time when the student underwent a difficult transition from middle school to high school, resulted in available services not being accessed or provided to the Student. Lacking parental consent, Taunton was unable to offer services which would have addressed most of the areas of concern identified by the Parents. The Parents hold the school responsible for the Student’s difficulties but fail to see how their own actions, even if well-intended, made the situation worse. Without the benefit of needed services to address the learning disabilities, this shy Student’s frustration increased as his motivation decreased. Personalized instruction with sufficient supports may have been available in Taunton, but the Parents’ rejection of the IEP coupled with their non-participation in the IEP meeting following the Student’s evaluation in 2000, made it difficult for the parties to agree on a program capable of meeting the Student’s needs.
Regarding the IEP presented after the Team meeting of December 18, 2000, I find that the services offered in that IEP were insufficient to meet the Student’s needs and the Parents were correct in rejecting said IEP. (PE-2; SE-2) The evidence is nonetheless persuasive that the types of services required by the Student could have been appropriately delivered in Taunton. (Testimony of Ms. Grefe, Ms. Broderick and Mr. Jackman)
One of the areas identified as having an impact on the Student’s overall performance was homework. According to the Father, the Student’s problems in completing homework manifested in high school. The School personnel agree that this is an area of great concern. (PE-16; SE-25) The record showed that problems with completing or turning in homework have been present for at least two years. (SE-25) The teachers’ notes are filled with references to Student’s failure to complete homework and class-work. The teachers also state that the Student seemed to have difficulty with the material presented and also express their belief that he made little effort to understand the material, or that he did not seem to care about certain courses. Additional special education services were recommended. (PE-16) The Student testified that he had problems with Reading and Math and that he had difficulty understanding homework assignments. He also testified that he asked teachers for assistance but that the teachers paid no attention to him.
In June of 1996 the Parents were appraised by Dr. Sokol of MGH that the Student’s emotional state would have to be monitored closely to avert development of a poor self-esteem or a conduct disorder. (PE-9; SE-16) His evaluation however, did not find that the Student presented with this type of difficulty at that time. The Parents argue that emotional issues secondary to “under addressed” learning disabilities emerged and worsened during the past three years. During the eighth grade the Student was unsuccessful in the MCAS. The record reflects that the Student had great difficulty in transitioning from the middle school to the high school in 1999 and had to take three courses during the summer of 2000 to avoid non-promotion. It is therefore, reasonable to infer that his emotional difficulties became aggravated around 1998-1999. Ms. Broderick testified that the Student’s self-esteem issues are directly related to his ability to perform. Reading difficulties impact upon them as well. (Testimony of Ms. Broderick) She stated in her report of February 2000 that the Student’s motivation and effort had been a concern since the elementary school years especially with regards to homework completion and obtaining after school help when he did not understand something. It was Ms. Broderick’s opinion that by 2000 the substantial energy required for the Student to focus and maintain his attention on academic tasks was more than he was willing to expend especially given that by then he had a low academic self-concept. (PE-8; SE-11)
The Student’s emotional needs have been neglected for a long period of time and they seem to be impacting negatively on his motivation and his willingness to make himself available to learn. Up to the time of the Pre-Hearing Conference (the end of January 2001) the Student had not participated in any form of counseling or received the benefits of psychotherapy. As a result of the Pre-Hearing Conference, the Student participated in a few counseling sessions in Taunton. He however, had stopped attending prior to the second date of hearing. (PE-9; SE-16) The testimony of Ms. Broderick is persuasive that while a service such as counseling can be made available, ultimately Student must decide to invest himself in such a service if it is going to yield a positive result. The Father asserted that what the Student needed was one-to-one intensive academic assistance with peers who were at his same level. I find that while the Student may certainly benefit from more intensive services in Reading, Math, English and Organizational Skills it is essential that his emotional issues be addressed. The evidence is persuasive that these are separate and distinct issues which should be addressed via provision of services.
Given the above, the Parents are not entitled to compensatory education services for the Student in the form of a private school placement.
Parents Request for a Private Placement at Public Expense :
Nothing in the record supports a finding that the type of services needed by the Student cannot be implemented in Taunton. Under Federal and Massachusetts law, eligible students have a right to receive a free appropriate public education that emphasizes special education and related services, designed to develop that student’s maximum individual educational potential in the least restrictive environment . 20 U.S.C. §1400, 34 CFR §300.1(a), MGL c. 71B §1, 603 CMR 28.01(3). To the maximum extent appropriate, children with disabilities, whether enrolled in a public or private institution, must be educated with non-disabled students. Their removal from the regular educational environment should occur only when the nature or severity of the disability is such that education in a regular classroom cannot be achieved in a satisfactory manner even when supplementary aids and services are used. 34 CFR §300.550 (b)(1) & (2), MGL c. 71B §1,603 CMR 28.02(12).
The Parents assert that since Taunton has failed to offer the Student appropriate services over the past three years, the Student is entitled to compensatory services. They request placement of the Student in a private school. The Parents’ claim is without merit for various reasons. As discussed earlier, services in English, Reading and Math were offered as per the IEP of June 2000 and English and Reading as per the IEP of December 2000 but these were not accepted by the Parents. (PE-3; PE-3) In fact, the last accepted IEP was that of May 5, 1999 offering the Student special education English in the Learning Center. (PE-4) This IEP was accepted conditioned on a March 2000 evaluation, but when Taunton attempted to convene the Team several times to discuss the results of that evaluation, the parents did not make themselves available and when the meeting was ultimately convened in June the Parents did not attend. (Testimony of Ms. Grefe; SE-5)
Lastly, I find the record lacking in any specific recommendation for a placement outside Taunton. No evaluator private or otherwise recommended a placement as restrictive as the Learning Prep School or a similar program. The Parents’ own independent evaluator, Dr. Timmel, of MGH, made no recommendation for the type of program or placement sought by Parents. I find the testimony of Taunton’s witnesses credible in that Taunton is able to implement Dr. Timmel’s recommendations within their district. Mr. Jackman and Ms. Grefe testified to availability of the Wilson Reading program, opportunities to work on organizational skills, and the provision of tutorials in the areas of need. Additionally, the Parents failed to present any testimony regarding the appropriateness of such a program for the Student nor was there any evidence to show that he had been accepted to the Learning Prep School or a similar program. Both the Student’s emotional needs and his learning disabilities can and must be addressed in Taunton which is the least restrictive environment. Since the evidence supports Taunton’s ability to implement the services required by the Student in accordance with State and Federal law, I need not reach the issue of the appropriateness of the Learning Prep School or another private day school at public expense.
Also, I find the services offered to the Student in the IEP of December 2000 (which decreased the services offered in June of 2000) to be insufficient to meet the Student’s needs. The recommendations made by Ms. Broderick in February of 2000, specifically the “additional reading instruction focusing on syllabication and complex word analysis to encourage automaticity; development of keyboarding skills to compensate for spelling deficit… to use word processing software to check spelling, grammar and punctuation; breakdown of long term assignments into smaller chunks with frequent checks to make sure he is on target; [Student] should be encouraged to seek help after school if he does not understand classroom material; use of agenda book with frequent checks to make sure homework is completed in a timely manner”, to be appropriate. (PE-8; SE-11) Also, Dr. Timmel’s recommendation of October, 2000, inclusive of services by a “properly trained tutor in the use of a rule based reading program such as the Wilson or the Orton Gillingham for at least four, 45 minute periods per week to address the [student’s] specific reading disorder.” (PE-7; SE-14) Additionally, “directions and long narratives [should]be read to him in testing situations”; “outlines and notes for all lecture classes should be provided to the Student unless he were allowed use of a word processor in classes, a word bank should be provided when responding to fill in the blanks type questions on exams, and provision of “curriculum support to bridge the gap between written language… [with] emphasis in the tutorial of his written narratives and essays as well as the organization of his work in general” should be implemented. (Id.) Dr. Timmel also recommended the services of a pediatric neurologist who specializes in attentional difficulties as they pertain to education.” (PE-7; SE-14) Finally, the organizational skills and counseling services proposed in January 2001(in which the student participated for a brief period of time) should also be made available to the Student.
Taunton must gather the Team to fashion an IEP that includes the services stated infra .This IEP would be reasonably calculated to offer the Student a free appropriate public education in the least restrictive environment that will allow the Student to reach his maxim feasible potential.
Wherefore the evidence proffered by Taunton and the Parents indicates that the Student presents with difficulties in Reading, Math, Organizational skills and issues related to a low self-esteem secondary to feelings of inadequacy, his needs can be appropriately addressed in Taunton. Taunton shall provide a program that addresses all of these areas of need forthwith.
So ordered by the Hearing Officer,
Rosa I. Figueroa
Dated: June 5, 2001
June 5, 2001