Sutton Public Schools – BSEA # 09-7983

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Sutton Public Schools

BSEA # 09-7983

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 22, 2009 in Malden, MA, and on September 23, 2009, October 19, 2009, and November 5, 2009 in Worcester, MA, before William Crane, Hearing Officer. Those present for all or part of the proceedings were:

Student’s Mother

Student’s Father

Katherine Carley Private Occupational Therapist

Harry Bakow Private Psychotherapist

Mary Ellen Curran Physical Therapist, Sutton Public Schools

Gina Iadarola Occupational Therapist, Sutton Public Schools

Linda Rheault Occupational Therapist, Sutton Public Schools

Susan Messier Speech-Language Pathologist, Sutton Public Schools

Lorri Kenney Special Education Teacher, Sutton Public Schools

Donna Sinkus Special Education Teacher, Sutton Public Schools

Margery Horan Special Education Teacher, Sutton Public Schools

Margo Austein Administrator of Special Education, Sutton Public Schools

Regina Williams Tate Attorney for Sutton Public Schools

Darlene Coppola Court Reporter

Laurie Jordan Court Reporter

The official record of the hearing consists of documents submitted by the Parents and marked as exhibits P-1 through P-124, except that P-121 was not admitted; documents submitted by the Sutton Public Schools (Sutton) and marked as exhibits S-1 through S-151; and approximately four days of recorded oral testimony and argument. As agreed by the parties, written closing arguments were due on January 4, 2010, and the record closed on that date.

I. INTRODUCTION

Since March 2005 when Parents withdrew their son from the Sutton Public Schools, Student has received his entire educational program through Parents’ privately-arranged special education services.

In this dispute, as in two previous BSEA disputes between the same parties, Parents have sought reimbursement for services privately obtained for their son. Parents are not seeking any prospective relief.

For reasons explained below, I have found that Parents are entitled to partial reimbursement of services that they privately provided during the period from October 2007 to October 2009.

II. ISSUES

The issues to be decided in this case are the following:

1. Did Sutton fail to advise Parents, in a timely manner, of their right to an evaluation and an IEP, in violation of the Hearing Officer’s Decision of March 26, 2007 in BSEA # 05-3840?

2. Is the individualized education program (IEP) proposed by Sutton for the period 10/25/07 to 10/24/08 reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment?

3. Is the IEP proposed by Sutton for the period 10/27/08 to 10/26/09 reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment?

4. In developing the proposed placement for the period 10/25/07 to 10/24/08, did Sutton unilaterally pre-determine Student’s placement and deny Parents meaningful participation in the placement decision, thereby resulting in violating Parents’ procedural rights?

5. In developing the 10/25/07 to 10/24/08 IEP and the 10/27/08 to 10/26/09 IEP, did Sutton fail to utilize an appropriately-constituted IEP Team, thereby resulting in violating Parents’ procedural rights?

6. Were Sutton’s proposals for services or placement “illusory” because they either could not be implemented or were never seriously intended to be implemented by Sutton, thereby violating Parents’ rights?

7. In the event that Sutton has violated Parents’ right to appropriate IEPs for the time periods of 10/25/07 to 10/24/08 and 10/27/08 to 10/26/09 or in the event that Sutton has otherwise violated Parents’ rights (as referenced in paragraphs 1, 4, 5, and 6 above), are Parents entitled to reimbursement for part or all of their costs associated with the educational program provided to Student from 10/25/07 to 10/25/09?¹

III. FACTUAL BACKGROUND

Student’s Educational Profile : Student, who is 13 years old and is in 7 th grade, lives with his Parents in Sutton, MA. Since March 2005, Student’s educational services (all of which have been privately provided by Parents) have included individual academic tutoring, vision therapy, occupational therapy, speech-language therapy, physical therapy, psychotherapy, and a Saturday morning social program, all of which are provided on a 1:1 basis except for the social program. All of these services are described more fully below. Testimony of Mother; exhibits S-8, S-13.

Student has many strengths. He is described by Mother and the service providers who work with him as delightful, friendly, polite, happy, endearing, cooperative, and intelligent. He enjoys being with adults whom he has gotten to know. He is motivated to learn. He wants to act and communicate with others appropriately. He has a wonderful sense of humor. He also appears to have good auditory memory. Testimony of Mother, Carley, Ronstadt, Bakow.

Student also has complex and severe neurological deficits that have been variously identified as verbal and motor apraxia or dyspraxia . He also has deficits in auditory processing and working memory. His combination of disabilities has resulted in severe impairments in all areas involving motor activities, including ocular motor skills, gross and fine motor skills, and verbal and written expression. These deficits have had a substantial and pervasive effect on his development relative to self care, cognition, attention, emotional regulation, reading, and expressive and receptive language—essentially every aspect of his daily living and education. Some of the practical implications of Student’s combination of deficits is that he is not able to write, he has difficulty locating and scanning material (his eye focus tends to drift), he has difficulty holding things in his hands, he has limited social skills, and he has had difficulty learning basic daily living skills (for example, Student has not yet learned basic toileting skills and is not able to dress himself independently). Student also has limited functional language (he often communicates through actions rather than words), with Student’s use of language depending on the context—for example, Mother testified that with her, Student uses 400 to 600 words, and he uses phrases routinely and spontaneously, while Student’s psychotherapist testified that Student uses only a few words with him and often communicates through actions. Testimony of Carley, Ronstadt, Bakow, Mother; exhibits P-58, S-8, S-13.

In addition (and likely as a result of his other disabilities), Student has been diagnosed with an anxiety disorder, with features of obsessive-compulsiveness. Specifically, Student can have anxiety regarding separation from Mother, and he can become highly anxious when he is with others with whom he is not familiar—for example, in social situations. Testimony of Bakow, Mother; exhibits P-103, P-53.

Most likely, Student has average intelligence. However, it has not been possible to determine his precise level of intelligence because no one has been able to measure his intelligence through standardized testing; and although Student often gives the appearance of knowing what he hears in a typical conversation, it is often difficult to know with certainty how much he actually understands because of his limited ability to express himself. Related to this issue, professionals who have worked with Student are unsure of the extent of his potential to learn. Testimony of Carley, Bakow, Ronstadt.

Student has become increasingly aware of himself and his abilities and limitations as compared to others. This self-awareness has heightened Student’s embarrassment and anxiety when he is with others and notices marked differences in developmental level and abilities. When he is with others, Student’s anxiety sometimes results in his “freezing” which interferes with his learning. Testimony of Carley, Bakow, Student.

Summary of educational services : Currently and since October 2007, Student’s special education and related services, which have all been arranged and paid for privately, have consisted of the following:

· Academic tutoring: 1:1 services for two hours every day from November 2007 until June 2009 and 90 minutes since June 2009. Services have been provided by Ms. Ronstadt from November 2007 until September 2008 and from June 2009 to the present, and by Yasmeen Bressner from September 2008 to June 2009. Testimony of Ronstadt, Mother.

· Occupational therapy: 1:1 services for one hour, twice each week, plus 90-minute dynamic listening sessions each day for periods of eight to ten days, repeated two or three times each year. Services have been provided at Project CHILLD (Center for Holistic Integration, Listening, Learning and Development). Testimony of Carley, Mother.

· Speech-language services: 1:1 services for 45 minutes, twice each week day. Services have been provided by Children’s Speech and Language Services. Testimony of Mother.

· Vision therapy: 1:1 weekly sessions for 12 weeks from September to January 2009 and for ten weeks from March to June 2009. Services have been provided by Catherine Kennedy, OD, FCOVD. Testimony of Mother; exhibits P-68, P-101, P-102, S-37, S-114.

· Physical therapy: occasional. Testimony of Mother.

· Psychotherapy: one hour, three times per week for the past six months, and previously, four or five times per week. Services have been provided by Harry Bakow, PhD. Testimony of Bakow.

· Social group: Saturday mornings at Integrated Center for Child Development in Canton, MA. Testimony of Mother.

Parents seek reimbursement for out-of-pocket expenses related to the following of these services: academic tutoring, occupational therapy (only for co-pays for traditional OT, and all of costs of the dynamic listening services), vision therapy (only for recent therapy if not covered by insurance), and social group. Parents also seek reimbursement for two consultations with Gregory Paquette of Integrated Center for Child Development in June 2009, relative to establishing a program to teach Student toileting skills. Other educational costs and services have been covered by private insurance, and therefore Parents do not seek reimbursement.

IEPs : There are two IEPs at issue in this dispute, together covering the period from October 2007 to October 2009. Parents are seeking reimbursement for privately obtained services during the two-year period of these two IEPs.

The earlier of the two disputed IEPs was for the period from 10/25/07 to 10/24/08. This IEP called for Student to be placed at the Cotting School in Lexington, MA, for all of his special education and related services. Student’s educational services would be year-round.

The IEP proposed the following direct services:

· 1:1 speech-language services by a speech-language pathologist for 30 minutes, four times per week;

· 1:1 speech/apraxia services by a speech-language pathologist for 30 minutes each day;

· Fine motor/sensory services by an occupational therapist/1:1 aide for 30 minutes each day;

· English language arts by a special education teacher/1:1 aide for 168 minutes each day;

· Math by a special education teacher/1:1 aide for 75 minutes each day;

· 1:1 social pragmatics by a social adjustment counselor for 30 minutes, once per week;

· Social pragmatics by a 1:1 assistant for 45 minutes, once per week;

· Gross motor services by a physical therapist/1:1 aide for 30 minutes, twice per week;

· Adaptive physical education by an adaptive physical education teacher for 30 minutes, once per week.

The IEP also proposed the following consultation services:

· Consultation by school staff and Parents for one hour, four times per year;

· Consultation by school staff for one hour per month;

Exhibit S-8.

The second IEP (and the more recent of the two disputed IEPs) covers the period from 10/27/08 to 10/26/09. This IEP called for Student to be placed in an intensive special needs classroom within the Sutton Public Schools for all of his special education and related services. Student’s educational services would be year-round.

The second IEP proposed the following direct services:

· 1:1 speech-language services by a speech-language pathologist for 30 minutes, four times per week;

· transition services by a 1:1 assistant for 6.75 hours each day;

· 1:1 speech/apraxia services by a speech-language pathologist for 30 minutes each day;

· Fine motor/sensory services by an occupational therapist/1:1 aide for 30 minutes each day;

· English language arts by a special education teacher/1:1 aide for 135 minutes each day;

· Math by a special education teacher/1:1 aide for 75 minutes each day;

· Social pragmatics by a 1:1 assistant for 45 minutes, once per week;

· 1:1 social pragmatics by a social adjustment counselor for 30 minutes, once per week;

· Gross motor services by a physical therapist/1:1 aide for 30 minutes, twice per week;

· Adaptive physical education by an adaptive physical education teacher for 30 minutes, once per week.

The second IEP also proposed the following consultation services:

· Consultation by school staff and Parents for one hour, four times per year;

· Consultation by school staff for one hour per month;

· Consultation by the occupational therapist/1:1 aide for 30 minutes each week.

Exhibits S-13.

Educational background : As summarized in part IV, below, there have been two previous BSEA disputes between the same parties. In one of these disputes (BSEA # 05-3840), part of the Hearing Officer’s March 28, 2007 decision included the following order: “Sutton shall immediately notify the Parents of their rights to evaluation and a new IEP based on current information per federal and state statutes and regulations, and shall proceed with same upon receipt of parental consent.”²

By letter of April 12, 2007, Sutton³ wrote Parents⁴ to set up a new IEP meeting, which would be for the purpose of discussing Student’s needs, develop a new IEP, and identify any necessary evaluations or observations. Sutton intended this letter to begin the process of complying with the March 28, 2007 BSEA decision, as well as to develop a new IEP for Student. Testimony of Austein; exhibit S-1.

On April 25, 2007, Parents provided Sutton with a number of reports and evaluations, including two from Dr. Holmes (Student’s neurologist), one from Jennifer Yovino, three from Children’s Speech and Language Services, and 12 from Lindamood Bell. Exhibit P-76.

On May 26, 2007, Parents advised Sutton that they did not believe these reports and evaluations were appropriate for purposes of forming the basis of a prospective IEP for Student. Exhibit P-77.

On June 13, 2007, Sutton convened an IEP Team meeting to develop a new IEP. At the meeting, Student’s educational and placement needs were discussed, as well as the need for Sutton to conduct any further evaluations. However, the IEP Team concluded that there should be additional observations of Student prior to proposing final IEP services and placement. Sutton members of the Team believed that, based upon comments in a previous neuropsychological report by Dr. Chaskelson, observations would likely provide more useful information than further standardized testing because of the difficulty of assessing Student accurately through standardized testing. Testimony of Austein, Horan; exhibits P-120 (pp. 11, 15), S-6.

Sutton staff carried out a number of observations of Student and one record review. These included an observation by a speech-language pathologist on July 31, 2007, an observation by an occupational therapist on August 27, 2007, an observation by a special education teacher on August 3 and 8, 2007, and a second observation by a special education teacher that is undated. Subsequent to the June 13, 2007 Team meeting, Sutton did not conduct any additional evaluations until March and April 2009 (discussed below). Testimony of Austein; exhibits S-2, S-3, S-4, S-5.

On October 2, 2007, Sutton’s speech-language pathologist (Ms. Messier) visited Cotting in anticipation of a subsequent Team meeting at which Student’s educational placement would be discussed. Ms. Messier testified that her visit included meeting with Cotting’s Director of Admissions (Elizabeth Russell) and taking a tour of Cotting. She testified that her conversation with Ms. Russell did not include any discussion of the components of Student’s IEP or whether Cotting would be an appropriate placement for Student in particular, but rather focused on Cotting’s program of educational and related services in general. Testimony of Messier; exhibit S-17.

The IEP Team re-convened on October 25, 2007 to review the observations and record review by Sutton staff and to develop a new IEP for Student, including determination of the appropriate educational placement for Student. The written agenda for this meeting reflects these topics. The meeting was collaborative with no apparent disagreements regarding the type or amount of special education and related services that would be provided Student. However, the tenor of the discussions changed rapidly near the end of this meeting when Sutton proposed that Student be placed at the Cotting School in Lexington, MA. Testimony of Mother, Messier; exhibit S-32.

At the October 25, 2007 Team meeting, Parents were surprised and upset when Sutton proposed Cotting as Student’s educational placement. Sutton staff had not previously apprised Parents that Sutton staff had visited the Cotting School on October 2, 2007, or that Cotting would be proposed as Student’s placement. Parents had previously rejected Cotting as a placement for their son. Because she was upset and frustrated, Mother left the meeting prematurely and Father remained at the meeting. The meeting ended soon thereafter. As a result, Sutton staff did not have an opportunity to explain fully, during the meeting, what Cotting would offer Student and why they believed that Cotting might be an appropriate placement for Student. Testimony of Mother, Messier, Austein; exhibit S-17.

As a result of the October 25, 2007 Team meeting, an IEP was developed by Sutton for the period 10/25/07 to 10/24/08. The IEP, which is described in greater detail above, specifically called for Student to be placed at the Cotting School, where Student would receive all of his special education and related services. Testimony of Mother, Austein; exhibits P-17, S-8.

In a letter to Sutton dated October 30, 2007, Parents expressed a number of concerns regarding the IEP and the IEP Team meeting of October 25, 2007. Parents began their letter by reiterating their concern that neither Sutton nor the IEP Team had sufficient understanding of severely apraxic students in general, or of Student’s complex educational challenges in particular. As a principal example of this concern, Parents stated that the IEP Team and the IEP itself did not reflect any real concern or interest in Student’s difficulties with visual perception and reception, which Parents believe are critical to Student’s ability to access educational curriculum, as well as to navigate his environment. Parents’ letter noted their concern that Sutton and the IEP Team had proposed to address this deficit only through adding several ocular motor exercises to the IEP, rather than through more extensive and intensive intervention by professionals with expertise in this area. Exhibits P-78, P-81, S-81.

Parents’ October 30, 2007 letter also expressed concern that Sutton had not apprised them of the reading and math programs that Sutton would be using. Parents expressed disappointment that there was no discussion at the Team meeting regarding Student’s auditory processing needs and how they would be met. Parents stated that they continued to believe that Student required an extended day to accommodate the multiplicity and complexity of his needs. Parents also noted that the Team did not discuss what plans and programs would be used to address Student’s writing issues, other than the mention of performing an assistive technology evaluation. Parents also expressed the need for a transition plan to ease Student’s acclimation to the program (being proposed by Sutton) that would require him to spend six hours each school day with people he does not know. Parents were concerned that this new program would overload his sensory system. Exhibits P-78, P-81, S-81.

Finally, in their October 30, 2007 letter, Parents stated that they had previously rejected a proposed Cotting placement because they believed that the student population would not provide meaningful socialization opportunities for their son, but Parents also indicated that they would visit Cotting, presumably for the purpose of considering it further. Father visited Cotting on November 6, 2007. The day following his visit to Cotting, Father wrote Sutton explaining that his wife would be visiting Cotting and that they would be arranging for their experts to visit Cotting to assess whether Cotting would be able to meet Student’s needs. Exhibits P-11, P-78, P-81, S-81.

In November 2007, Mother visited Cotting. She met with Elizabeth Russell, the Cotting Director of Admissions, for more than an hour, and Ms. Russell gave Mother a tour of the school. Mother testified that she reviewed Student’s profile with Ms. Russell. Mother; exhibit P-11, S-110.

Mother testified that she did not consider herself able to evaluate the appropriateness of a placement for her son, but rather has consulted with Parents’ experts regarding any placement decision. In an e-mail message from Father to Sutton, dated November 5, 2007, Father had similarly stated Parents’ need to have Cotting assessed by one or more of their experts for purpose of determining its appropriateness for Student. Testimony of Mother; exhibit P-11.

Mother spoke with Student’s clinical neuropsychologist (Marsha Chaskelson, PhD) who had previously evaluated Student. Mother asked Dr. Chaskelson to contact Ms. Russell, the Cotting Admissions Director, and provide Mother with her professional opinion as to whether Cotting could meet Student’s needs and be an appropriate placement for Student. Mother testified that this is what Dr. Chaskelson does as a consultant—that is, she reviews IEPs and determines whether they can be implemented within a particular educational placement. Mother testified that after interviewing Ms. Russell, Dr. Chaskelson spoke with Mother and prepared a memo describing her conversation. Dr. Chaskelson advised Mother orally and through her memo that the IEP, as proposed by Sutton, includes a service delivery grid that does not conform to what Cotting provides. A particular concern was that Cotting does not provide services on a 1:1 basis to any of its students. Testimony of Mother; exhibits P-104, S-117.

Mother testified that Cotting School’s not providing 1:1 services was one of the reasons that Parents concluded that Cotting was not appropriate for their son, but she emphasized that in rejecting the Cotting placement, Parents were not insisting on a placement that would allow all services to be provided on a 1:1 basis. Testimony of Mother.

By letter of November 13, 2007, Sutton responded to Parents. Sutton defended its process for developing the IEP, including its decision to propose a placement at Cotting School. This letter also specifically responded to Parents’ concerns that Sutton did not understand (and was not responding appropriately to) Student’s vision difficulties; the letter explained that the recommendations of Dr. Abbondanza (the behavioral optometrist who evaluated Student) were considered by the IEP Team and were incorporated into the IEP goals regarding occupational therapy. Exhibits S-7, S-77.

By letter of March 23, 2008 to Sutton, Parents reiterated their rejection of the proposed IEP (that was developed as a result of the October 25, 2007 IEP Team meeting). Parents’ letter explained that they did not believe that the IEP would provide their son with FAPE but did not otherwise include specific reasons for rejecting the IEP. Instead, Parents’ March 23, 2008 letter referenced their earlier letter to Sutton, dated October 30, 2007 (discussed above), which Parents believed constituted their first rejection of the IEP and which described the specific reasons for Parents’ believing that the IEP would not provide their son with FAPE. In their March 23, 2008 letter, Parents further stated that they would continue to arrange privately for their son’s special education and related services and would request reimbursement from Sutton. Parents continued to provide Student with his entire educational program through privately-arranged special education services. Testimony of Mother; exhibit P-79.

During the summer of 2008, Parents and Sutton staff collaborated to try to find an appropriate, mutually-agreeable out-of-district placement for Student. A number of private schools were identified by Sutton for consideration by Parents, and were actively reviewed by Parents and by Sutton staff. Sutton took the position then and has continued to take the position that it would be willing to fund any private school placement, so long as the placement is appropriate to meet Student’s educational needs. These efforts to find such a placement were not successful. Testimony of Mother, Austein; exhibits P-23, P-24, P-25, P-27, P-30, P-33, P-83, S-11, S-65, S-68, S-69.

By letter of September 10, 2008, Sutton indicated its willingness to pay for individual home tutoring for Student. Sutton’s letter stated: “In an effort to support [Student’s] struggle with encopresis, home tutoring appears to be the best option at this time, to be reviewed in 4-6 months with a goal to have [Student] attend a public school setting for the academic portion of his program.” Parents proposed that Sutton hire the tutor whom they had privately engaged (Ms. Bressner). Sutton posted a Craigs List advertisement for a tutor for Student on April 7, 2009. Sutton interviewed Ms. Bressner and identified other possible tutors, as reflected in its letter to Parents dated October 10, 2008, but Sutton then changed its position and never paid for or provided home tutoring. Instead, Sutton proceeded to propose an IEP that would meet Student’s academic needs through an educational placement within the Sutton Public Schools, rather than through home-tutoring (IEP is discussed above). As a result, Sutton has never agreed to pay for home tutoring services. Testimony of Ronstadt, Austein, Mother; exhibits P-40, P-69, P-87, P-89, P-109, P-113, P-114, P-115, S-12, S-15, S-58, S-63, S-66, S-82, S-83, S-84, S-123.

On October 21, 2008, Parents provided Sutton with information regarding an organization (Integrated Center for Child Development, or ICCD), which Parents believed could assist Student with his toileting issues. On the same day, Sutton responded that this would be something that could be discussed when Sutton and Parents meet. Testimony of Mother; exhibits P-45, P-46.

The IEP Team re-convened on October 27, 2008 for the purpose of preparing a new IEP. Pursuant to this Team meeting, Sutton proposed an IEP (discussed above in greater detail) for the period 10/27/08 to 10/26/09. This IEP was similar to the previous IEP with respect to special education and related services, but this IEP called for placement within a substantially-separate, intensive special needs classroom within the Sutton Public Schools, rather than at Cotting School. Sutton continued to be willing to place Student at a private school, but no private school agreeable to both parties had been identified. For the first time, toileting was discussed during the IEP Team meeting as an important issue for Student. The Sutton members of the Team proposed to address Student’s toileting issues within the school-based program, rather than through ICCD or other home-based model that Parents had requested. Sutton believed that it had substantial expertise within its own staff for purposes of appropriately addressing Student’s toileting difficulties. In November 2008, Parents rejected the proposed educational placement. Parents continued to provide Student with his entire educational program through privately-arranged special education services. Testimony of Mother, Austein; exhibit S-13, S-29, S-31, S-32.

Parents continued to press Sutton regarding its addressing Student’s ADL skill needs through ICCD. On November 18, 2008, Parents sent to Sutton a letter of October 23, 2008 from Student’s pediatrician To Whom It May Concern that explained, in relevant part, as follows:

[h]is learning needs to take place in very restrictive and familiar settings, and experience has confirmed that this approach has met with substantial improvement.

For this reason, teaching him activities of daily living (toileting, dressing, etc.) in his home is a medical necessity. Learning these ADL’s is vital to his development and ability to transition to any educational activities outside of this home.

Exhibits P-54, S-80.

By letter dated November 19, 2008, Sutton responded to Parents, stating that after reviewing the materials regarding ICCD and its toileting program, Sutton proposed to address toileting and ADL issues through its proposed IEP and the IEP’s goal relative to toileting. Sutton discounted the opinion of Student’s pediatrician regarding teaching ADL skills, stating that “doctors do not make educational decisions.” The November 19, 2008 letter also made clear that Sutton would not be providing tutoring, but rather would address Student’s academic needs through the proposed IEP. As noted above, Sutton had previously considered the possibility of funding home tutoring because of Student’s need to have toileting issues addressed within the home. However, Sutton eventually concluded it should address all of Student’s educational needs within a school-based program. Testimony of Austein; exhibits P-88, S-64.

On November 22, 2008, Parents consented to Sutton’s request to conduct additional evaluations. Exhibits P-56, P-57, S-30.

By e-mail of May 4, 2009, Parents continued to request that Sutton pay for ICCD to implement a home-based program to address Student’s ADL issues, including toileting and self care. Parents provided Sutton with information regarding ICCD for this purpose. Parents also provided an earlier report from Dr. Holmes, dated December 16, 2008, that stated that training regarding basic skills, such as toileting, should be pursued “since the issue of toileting is really limiting his ability to progress emotionally, educationally and socially.” Exhibits P-72, P-73, S-36.

Sutton responded by letter of May 8, 2009, taking the position that Sutton “has always been willing to address [Student’s] ADL skills, as outlined in previous correspondence extending over the past school year.” Sutton’s letter explained its position that Student should be in a “comprehensive” program that would address all of Student’s needs, including ADL skills. Sutton’s position was that it would therefore not fund these services from ICCD. This position was consistent with its earlier view, as stated in Sutton’s letter to Parents dated November 19, 2008, discussed above. Testimony of Austein; exhibits P-97, S-56, S-64.

Sutton conducted physical therapy, occupational therapy, and speech-language evaluations in March and April 2009. Sutton also conducted a review of records by a clinical psychologist on May 29, 2009. At the same time, Sutton sought to obtain all evaluations conducted at Parents’ expense. Exhibits P-61, P-64, P-113, S-23, S-24, S-25, S-26, S-30.

Parents retained Gregory Paquette as a consultant for purposes of proposing how to address Student’s ADL (and, in particular, toileting) needs, and in June 2009, Mr. Paquette made two visits to Parents’ home. Parents did not continue this process with Mr. Paquette or with ICCD apparently because of Sutton’s unwillingness to contract with them and Parents’ inability to pay for further services. Testimony of Mother; exhibits P-98, S-124.

IV. PREVIOUS DISPUTES BETWEEN THE PARTIES

The parties to this case have had previous disputes before the BSEA, resulting in two BSEA decisions, both of which were appealed by Parents. One appeal has resulted in a federal District Court decision; the other appeal is pending in federal District Court. These two BSEA decisions and one federal court decision depict Student and his educational needs at an earlier age and are therefore not relied upon relative to Student’s current profile, educational needs, and how those needs should be met. Nevertheless, these decisions provide detailed and useful historical information and context, and the federal District Court decision provides guidance regarding analysis of the rights and responsibilities of the parties in a similar dispute. I therefore have considered these decisions for purposes of providing relevant background information and guidance, and I summarize them briefly below.

The first BSEA decision addressing a dispute between the parties in the present case was issued on March 28, 2007 in BSEA # 05-3840. That dispute involved the following issues:

1. Whether the two IEPs proposed for the 2005-2006 school year were reasonably calculated to provide Student with FAPE.

2. Whether the services obtained by Parents from March 2005 forward are appropriate and provide FAPE, such that Sutton should reimburse Parents for providing those services in the past and fund these services prospectively.

The BSEA Hearing Officer reviewed the progress that Student had made during the 2004-2005 academic year when Student was placed within the Sutton Public Schools, and used this progress as an indicator of likely progress under the proposed IEP. The proposed IEP for the 2005-2006 school year called for Student to continue to be placed within the Sutton Public Schools. As described within the Hearing Officer’s decision, the services and placement proposed within the disputed IEP called for Student to attend a “Language Based Resource Program” and receive the following direct services: “speech/language: 1×30 and 3×30; speech/apraxia: 4 x 30 and 3 x 30; OT: 2 x 30, 1 x 30; language arts: 5 x 90, math: 5 x 75, and PT: 1 x 30.” Student’s proposed class would consist of 6 to 8 students, taught by one certified special education teacher and an instructional aide.⁵

The Hearing Officer concluded that Student had been making “steady” progress during the 2004-2005 school year, that a recent report by an independent speech-language pathologist indicated that Student would benefit from a smaller, specialized classroom to do more group learning, and that Sutton’s proposed IEP appropriately adopted this approach. The Hearing Officer summed up as follows:

Student’s progress was meaningful. Despite enormous challenges, Student developed from a child who did not speak at all and only had access to a few signs to a child who could communicate many of his wants and needs via sign, spoken words, and emerging use of augmentative communication, who was developing pre-reading skills, whose physical skills had improved enormously. There is no reason to believe that Student would not have made continued, and likely more rapid progress in the newly-proposed program.⁶

The Hearing Officer also noted that Sutton had proposed, alternatively, two out-of-district placements. For the following reasons, the BSEA decision concluded that they, too, were appropriate for Student:

Finally, I find that the alternatives proposed by Sutton, either the Cotting School or South Coast Collaborative, also to be appropriate based on the evidence in the record. Both are settings that appear to have the structure and resources to address Student’s needs. Dr. Esposito testified that Cotting, in particular, has a well-developed assistive technology center.⁷

The Hearing Officer found that the IEPs developed by Sutton for the 2005-2006 school year were appropriate to meet Student’s special education needs and, therefore, Sutton was not responsible for funding the unilateral services and placement developed for Student by his Parents.⁸

In a September 30, 2009 decision, the federal District Court upheld the BSEA Hearing Officer’s determination that the February 2005 to February 2006 IEP was appropriate. In analyzing the appropriateness of this IEP, the Court considered Student’s actual progress while attending Sutton’s special education placement and receiving special education and related services from Sutton prior to the IEP in question, apparently concluding that the services and placement provided previously by Sutton were sufficiently similar to the services proposed in the IEP in question so as to provide a meaningful indicator of what progress would likely be made under the proposed IEP. The federal District Court upheld the BSEA Hearing Officer’s determination that the February 2005 IEP was sufficient to provide meaningful educational progress.⁹

The Court did not reach the question of whether the Cotting School would have been an appropriate, alternative placement for Student.¹⁰ The Court also found it unnecessary to determine whether Student would have received benefit from the services proposed and provided by Parents. In sum, the Court agreed with the BSEA Hearing Officer that Sutton had no obligation to reimburse Parents for any of the special education and related services which they had provided because Sutton’s proposed IEP was appropriate.

There was a second and separate BSEA dispute involving the same parties (and the present BSEA Hearing Officer) in BSEA # 07-7534. That appeal also addressed Parents’ claim for reimbursement of their expenses for privately-obtained educational services. However in that dispute, Parents’ claim was based solely upon alleged procedural violations relative to the IEP Team meeting on May 25, 2006. In the BSEA decision (issued on July 1, 2008) resolving that dispute, Sutton prevailed on each of the disputed issues, and no reimbursement was allowed. Parents have appealed the BSEA decision to federal Court, but no judicial decision has been issued.¹¹

V. DISCUSSION

It is not disputed that Student is an individual with a disability, falling within the purview of the federal Individuals with Disabilities Education Act (IDEA)¹² and the Massachusetts special education statute.¹³ 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 further education, employment, and independent living.”¹⁴ FAPE must be provided in the least restrictive environment.¹⁵

Student’s right to FAPE, including compliance with both state and federal standards, is assured through the development and implementation of Student’s individualized education programs or IEPs.¹⁶ Each IEP must be “custom tailored to address the handicapped child’s unique needs in a way reasonably calculated to enable the child to receive educational benefits.”¹⁷

The IDEA does not require that Sutton provide an IEP that is “best” for Student or what will maximize his educational potential.¹⁸ Rather, the IEP must be “reasonably calculated to enable the child to receive educational benefits.”¹⁹ “[M]eaningful progress … is the hallmark of educational benefit under the [federal] statute.”²⁰

In addition to the federal standards included within the IDEA, FAPE is defined by the IDEA to include state educational standards, which may exceed the federal floor .²¹ State and federal special education laws have been further interpreted to require special education and related services that are designed to result in progress that is “effective”²² and that develop Student’s educational potential.²³

In determining whether these standards have been met, Student’s likely progress is considered within the context of his own, particular potential or capacity to learn since “[ i]t is clear that the benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end, with infinite variations in between .”²⁴

An IEP is a “snapshot, not a retrospective.”²⁵ Accordingly, when considering the appropriateness of an IEP, Sutton’s actions are not to be “judged exclusively in hindsight.”²⁶ The “IEP must take into account what was, and was not, objectively reasonable when the … IEP was promulgated.”²⁷ This does not preclude the admission of evidence acquired after the creation of the IEP—for example, information regarding Student’s subsequent progress or further evaluation of Student—provided that the evidence is used only to evaluate whether Sutton’s IEP decisions were objectively reasonable at the time they were made.²⁸ In addition, Student’s subsequent progress or further evaluations may be relevant to the question of Student’s special education needs (and how they should be met) after the date the IEP was promulgated—for example, when determining the appropriateness of Parents’ privately-obtained services or when determining whether an IEP should be amended in order to meet Student’s unique educational needs.²⁹

Parents have made allegations of procedural improprieties. The IDEA provides that a Hearing Officer may determine that a student was denied FAPE on the basis of a procedural violation, but only pursuant to the following standards:

Procedural issues. In matters alleging a procedural violation, a hearing officer may find that a child did not receive a free appropriate public education only if the procedural inadequacies–
(I) impeded the child’s right to a free appropriate public education;
(II) significantly impeded the Parents’ opportunity to participate in the decisionmaking process regarding the provision of a free appropriate public education to the Parents’ child; or (III) caused a deprivation of educational benefits.”³⁰

As the moving party regarding all claims, Parents have the burden of persuading me regarding each of the disputed issues.³¹ I now turn to a consideration of each of the issues in dispute.

Issue # 1: Did Sutton fail to advise Parents, in a timely manner,
of their right to an evaluation and an IEP, in violation of the

Hearing Officer’s Decision of March 26, 2007 in BSEA # 05-3840?

As discussed in greater detail above in part IV, there have been two previous BSEA disputes between the parties in the present case. In one of these disputes (BSEA # 05-3840), part of the Hearing Officer’s March 28, 2007 decision included the following order: “Sutton shall immediately notify the Parents of their rights to evaluation and a new IEP based on current information per federal and state statutes and regulations, and shall proceed with same upon receipt of parental consent.”³²

Parents take the position that Sutton has not complied with this March 28, 2007 order.

I first consider whether this claim is beyond the IDEA’s two year statute of limitations period and, if so, whether I am precluded from considering this part of the dispute.

The IDEA, as most recently amended in 2004, expressly limits presentation of claims to the Bureau of Special Education Appeals to those arising during the two year period immediately preceding the filing of the hearing request, with exceptions not relevant to the instant dispute.³³ Parents filed their hearing request on June 15, 2009, which precludes their raising claims that accrued prior to June 15, 2007.

There are essentially two parts to the Hearing Officer’s March 28, 2007 order—first that Sutton must “immediately” notify Parents of their rights to evaluation and a new IEP, and second that Sutton must then proceed with the evaluations and IEP “upon receipt of parental consent.” As is clear from the above-stated recitation of the issues in dispute, it is only the first part of the Hearing Officer’s order that is before me.

The term “immediately” was used by the previous Hearing Officer to describe when Sutton must notify Parents, but “immediately” was not defined by the Hearing Officer in her order. I seek to understand this term through the general context of special education services where there is an emphasis on the timely assessment and provision of services,³⁴ the minimal amount of time needed to comply with the order (Sutton was required only to notify Parents of certain rights), as well as commonsense. After consideration of these factors, I conclude that the timeframe for providing notice “immediately” should be measured in days or possibly several weeks, but not in months.³⁵

I find that if Sutton had not provided the requisite notification within (at the most) one month (and likely within a substantially shorter period of time) after the Hearing Officer’s March 28, 2007 decision, Sutton would have been out of compliance, and Parents’ claim would have accrued. I also find that as of the June 13, 2007 IEP Team meeting with Parents, it would then have been self-evident what Sutton had done to comply with this portion of the order. Exhibit S-6. For these reasons, I conclude that Parents’ claim regarding the first part of the order accrued prior to June 15, 2007.

As explained above, under the IDEA’s statute of limitations, Parents are allowed only to make claims that accrued during the period from June 15, 2007 forward—that is, no more than two years prior to the filing of the hearing request. Because Parents’ claim (regarding compliance with the previous BSEA Hearing Officer’s order) accrued prior to June 15, 2007, this claim is foreclosed under the IDEA’s statute of limitations.

For these reasons, I find in favor of Sutton with respect to Parents’ claim that Sutton did not comply with the previous Hearing Officer’s order.

Issue # 2: Is the individualized education program (IEP) proposed by Sutton for the period 10/25/07 to 10/24/08 reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment?

In considering the appropriateness of the Sutton’s proposed IEP for the period 10/25/07 to 10/24/08, I first review whether Sutton’s proposed placement at the Cotting School in Lexington, MA, would have provided Student with an opportunity to receive the special education and related services described within the IEP; and if not, whether this denied Student FAPE.

Federal regulations under the IDEA describe how the placement decision is made and the relationship between the placement and the special education and related services described in the IEP. These regulations provide, in relevant part, as follows:

§300.116 Placements.

In determining the educational placement of a child with a disability, including a preschool child with a disability, each public agency must ensure that–
(a) The placement decision–

(1) Is made by a group of persons, including the parents, and other persons knowledgeable about the child, the meaning of the evaluation data, and the placement options; and

(2) Is made in conformity with the LRE provisions of this subpart, including §§300.114 through 300.118;

(b) The child’s placement–

(1) Is determined at least annually;

(2) Is based on the child’s IEP ; and

(3) Is as close as possible to the child’s home; ….³⁶

Comments by federal DOE on its then-recently promulgated regulations further explain: “ In all cases, placement decisions must be individually determined on the basis of each child’s abilities and needs and each child’s IEP , and not solely on factors such as category of disability, severity of disability, availability of special education and related services, configuration of the service delivery system, availability of space, or administrative convenience .”³⁷

The Massachusetts Department of Elementary and Secondary Education (DESE) special education regulations go further than the IDEA and federal regulations by explicitly assigning the IEP Team as the responsible entity to identify the specific program location where Student will receive his services.³⁸ For purposes of the instant dispute, the specific program location identified by the Sutton members of the IEP Team was the Cotting School.

Similar to the federal regulations cited above, the state regulations make clear that the IEP Team’s decision regarding placement is for the purpose of delivering the services that have been already determined by the Team and that are reflected in the IEP. The state regulations provide in relevant part, as follows:

Determination of placement. At the Team meeting, after the IEP has been fully developed, the Team shall determine the appropriate placement to deliver the services on the student’s IEP.³⁹

Specifically regarding an IEP Team’s determination to place a student at an out-of-district placement (such as the Cotting School), the regulations further provide in relevant part, as follows:

The Team shall not recommend a specific program unless it is assured that the adequacy of said program has been evaluated and the program can provide the services required by the student’s IEP .⁴⁰

Through its Administrative Advisory SPED 2001-5: Updating of IEP Process Guide and IEP Form and Notices , dated June 11, 2001 ( Administrative Advisory ), DESE has further clarified the school district’s responsibilities regarding the development of the IEP and placement decision. In this Advisory, DESE made explicit the relationship between the development of the IEP services and the determination of the specific program placement where those services are to be delivered:

2. Educational Placement Determination and Specific Program Location(s): Educational placement (e.g., the actual location where the student will receive the services on the IEP) is determined after the Team has fully developed the IEP. The Team makes a decision regarding educational placement after appropriate services are identified to ensure that Team members select an educational placement able to deliver the IEP services. The Team must ensure that the specific program location complies with the IEP, least restrictive environment requirements, and requirements related to giving preference to approved programs and programs in Massachusetts.

The school district then works cooperatively with the Team to implement the educational placement determination. We again emphasize that the IEP is developed by the Team to meet the needs of an individual student, that the placement identification follows the development of the IEP, and that it is absolutely inappropriate to write an IEP to fit a specific placement. [Bold in original; italics added.]⁴¹

In sum, this statutory, regulatory and advisory language leave no doubt that the Sutton IEP Team had a responsibility first to develop fully the IEP for purposes of determining the appropriate special education and related services, and only then to select an appropriate placement that would be able to actually deliver those IEP services. For reasons explained below, Parents presented credible and persuasive evidence that Cotting could not or would not implement the proposed IEP as written, with the result that Sutton proposed an inappropriate placement for Student.

As noted earlier in this Decision, Sutton’s proposed IEP for the period 10/25/07 to 10/24/08 calls for much of its direct special education and related services to be provided on a 1:1 basis—specifically, the IEP calls for delivery of speech-language, speech-apraxia, and social pragmatics to be provided through 1:1 therapy or instruction. In addition, although the IEP is silent on whether occupational therapy would be provided through 1:1 services or in a small group, Sutton’s occupational therapist (Ms. Iadarola) testified that she would recommend that the occupational therapy services for Student be provided on a 1:1 basis because of the complexity of his needs. For Parents, an important ingredient of any proposed IEP for their son is the delivery of many, if not most, of his services on a 1:1 basis. Testimony of Iadarola, Mother; exhibit S-8.

For more than an hour in November 2007, Mother met with Cotting’s Admissions Director (Ms. Russell) and reviewed with her Student’s profile, Sutton’s proposed IEP, and Cotting’s appropriateness as a placement for Student specifically. Ms. Russell made clear to Mother that Cotting does not offer 1:1 educational programs to any of its students, that Cotting does not (and would not) provide services on a 1:1 basis to Student , even if additional 1:1 staff were paid for and provided by Sutton. For this reason, Ms. Russell told Mother that the IEP, as written, could not be implemented at Cotting. Mother; exhibits P-11, S-110.

Mother’s understanding of Cotting’s unwillingness or inability to implement Student’s IEP as written was further supported by a review of Cotting by Parents’ expert who is a clinical neuropsychologist (Marsha Chaskelson, PhD) and who had previously evaluated Student. Mother testified that she did not consider herself able to evaluate the appropriateness of a placement for her son, but rather has consulted with Parents’ experts regarding any placement decision. In an e-mail message from Father to Sutton, dated November 5, 2007, Father had similarly stated Parents’ need to have Cotting assessed by one or more of their experts for purpose of determining its appropriateness for Student. Testimony of Mother; exhibit P-11.

Mother asked Dr. Chaskelson to contact Ms. Russell and provide Mother with her professional opinion as to whether Cotting could meet Student’s needs and be an appropriate placement for Student. Mother testified that this is what Dr. Chaskelson does as a consultant—that is, she reviews IEPs and determines whether they can be implemented within a particular educational placement. Mother testified that after interviewing Ms. Russell, Dr. Chaskelson spoke with Mother and prepared a memo describing her conversation. In Dr. Chaskelson’s oral response to Mother and in her memo to Mother, Dr. Chaskelson reported that, according to Ms. Russell, Cotting would not accept a student who requires a 1:1 aide, even if the aide were paid by the school district. Dr. Chaskelson also reported from Ms. Russell that all therapies at Cotting are provided within the classroom, rather than pull-out. Dr. Chaskelson advised Mother orally and in writing that the IEP, as proposed by Sutton, includes a service delivery grid that does not conform to what Cotting provides. Testimony of Mother; exhibits P-104, S-117.

Mother testified that Cotting School’s not providing 1:1 services was one of the reasons that Parents concluded that Cotting was not appropriate for their son, but she emphasized that in rejecting the Cotting Placement, Parents were not insisting on a placement that would allow all services to be provided on a 1:1 basis. Testimony of Mother.

Sutton has argued that the Cotting School could appropriately implement Student’s IEP, but there is no probative evidence in support of this argument. Sutton provided evidence regarding some of the excellent qualities of Cotting that would be relevant to Student’s placement there, but Sutton produced no probative evidence to dispute Parents’ evidence that Cotting could not or would not implement Student’s IEP. For example, Ms. Messier testified that on October 2, 2007, she visited Cotting in anticipation of a subsequent Team meeting at which Student’s educational placement would be discussed. Ms. Messier testified that her visit included meeting with Cotting’s Director of Admissions (Ms. Russell) and taking a tour of Cotting. Testimony of Messier.

Ms. Messier testified in support of Cotting as Student’s placement because Cotting had excellent coordination of services, there is significant collaboration between teachers, students have access to excellent technology resources at Cotting, the students at Cotting have varying academic abilities, there is active family support by Cotting staff, and Cotting has a medical clinic. Testimony of Messier.

However, Ms. Messier testified that her conversation with Ms. Russell did not include any discussion of the components of Student’s IEP. Ms. Messier explained that she was under the impression from Ms. Russell that Cotting generally individualizes its services to meet its students’ particular needs, but Ms. Messier did not specifically ask Ms. Russell about how Cotting’s services might be individualized to meet Student’s educational needs and whether 1:1 services could be provided to Student. Ms. Messier testified that she did not discuss the components of Student’s IEP with Ms. Russell. In her testimony, Ms. Messier did not render an opinion regarding whether Cotting would or could implement Student’s IEP, nor could she have testified credibly or persuasively on this issue since Ms. Messier did not gain sufficient knowledge to form a basis for such testimony. Testimony of Messier; exhibit S-17.

Ms. Austein testified that Cotting was proposed because it has a small student-teacher ratio, it has excellent assistive technology, it provides family support, its services are data-driven, it includes full-time medical capabilities, and it follows Massachusetts Curriculum Frameworks. Ms. Austein testified that there is nothing intrinsic in Cotting that would make it inappropriate, and that, in her general experience, an additional, 1:1 aide for a student can often be negotiated with a private school if the school district is willing to pay for the aide. She explained that she had no reason to believe that the Sutton IEP for Student could not be implemented at Cotting. Ms. Austein testified that she did not visit Cotting, nor did she speak with Elizabeth Russell, Cotting’s Director of Admissions. As with Ms. Messier, Ms. Austein did not testify as to whether Cotting could actually or would be willing to implement Student’s IEP, nor did she have sufficient information that would form the basis for rendering such an opinion. Testimony of Austein.

Sutton sought to address the disparity between Sutton’s IEP and Cotting’s implementation of the IEP through the further testimony of Ms. Austein who explained that, typically, once a student is placed, for the first time, into a private school, the IEP is “re-aligned” so it is appropriate for the particular placement. Ms. Austein explained that when an IEP is “re-aligned” for this purpose, the services to be provided, as reflected in the service grid in the IEP, would stay the same, but the hours of delivery of the services may change. Ms. Austein referred to this as “tweaking” the IEP after placement at Cotting. Testimony of Austein.

It seems self-evident that in this case, it would take substantially more than re-aligning or tweaking the IEP to allow Cotting to implement it. Ms. Austein conceded as much when she explained that by re-aligning or tweaking the IEP, she was referring, for example, to changing the scheduling of when certain proposed services would be delivered in order to conform to the particular placement, rather than a diminution or qualitative change to those services. Similarly, Sutton’s special education teacher (Lorri Kenney) testified that Student’s IEP services would have to be implemented wherever he was placed.

As discussed above, the proposed IEP specifically called for 1:1 delivery of certain special education and related services, and appropriate implementation of the IEP would likely require 1:1 delivery of occupational therapy even though not specified on the IEP. In addition, it is undisputed that services provided on a 1:1 basis benefit Student educationally. The testimony of Ms Ronstadt (Student’s tutor), Ms. Iadarola (Sutton’s occupational therapist) and Dr. Bakow (Student’s psychotherapist) was persuasive that given the severity and complexity of Student’s learning deficits, 1:1 teaching/therapy has the benefit of providing a greater level of intensity, permits better tailoring of services to Student’s unique educational needs, and minimizes distractions that would likely occur from other students. Testimony of Ronstadt, Iadarola, Bakow, Kenney, Mother.⁴²

I find that failure to provide these services on a 1:1 basis would result in a substantive, qualitative change in services called for in the IEP, and would substantially diminish the intensity and usefulness of the services to be provided to Student. By making this finding, I am not reaching any conclusion as to whether Student can only receive FAPE through the delivery of certain special educational or related services on a 1:1 basis, but rather I find that the delivery of certain services on a 1:1 basis was a qualitatively important educational element of what Sutton proposed through this IEP.⁴³

As discussed above, state and federal special education laws, regulations and DESE guidelines make clear that the IEP services must be developed first, and then the IEP Team had the responsibility to identify a placement that would and could appropriately implement these services, as written in the IEP. I find that a change of IEP services (so that the services would not be provided on a 1:1 basis for the purpose of allowing the IEP to be implemented at Cotting) is precluded by these laws, regulations and guidelines. Accordingly, even though Cotting may be an excellent school with a number of qualities that may be appropriate and useful to Student’s education in general, Cotting cannot be an appropriate placement for Student because it is not willing or able to implement the IEP that Sutton proposed for Student.

The inappropriateness of Cotting is relevant to the question of whether its IEP, as a whole, was appropriate for Student. As one court has noted generally, the “inclusion of a particular school in an IEP can be determinative of whether a FAPE has been offered.”⁴⁴ The IDEA allows a party to appeal the appropriateness of a particular educational placement.⁴⁵

I now turn to the circumstances of this particular dispute to consider the implications of Sutton’s proposing a placement that could not deliver the IEP services.

It is apparent from the history of this case that Parents were interested in but not completely whetted to their own service delivery model that they had put together for their son through a number of service providers since March 2005. Parents’ willingness to consider providing services to their son through alternative educational programs (as compared to their own privately-arranged services) was demonstrated, for example, when Parents and Sutton worked collaboratively in good faith for several months to try to find an appropriate private day school agreeable to both parties. Testimony of Mother, Austein; exhibits P-23, P-24, P-25, P-27, P-30, P-33, P-83, S-11, S-65, S-68, S-69. Such a private school placement would have replaced many or all of the services privately obtained by Parents. (I note that, in contrast, Parents and Sutton have not been able to work together collaboratively for purposes of a possible placement of Student back into the Sutton Public Schools, at least during all times relevant to this dispute, as will be discussed below in this Decision.)

With respect to the proposed Cotting placement in particular, Parents were upset by this proposal, in part because the proposal was unexpected, but as discussed above, they were willing to carefully consider Cotting, and to have their expert review its appropriateness. I find that Parents made a good faith effort to review and consider Cotting for purposes of placement of their son and determined, for legitimate reasons, that Cotting could not implement their son’s IEP and was therefore not appropriate. Exhibits P-78, P-81, S-81.

Also, the correspondence between the parties following Sutton’s proposal of the IEP indicates that Parents’ principal concern with the IEP was not so much the proposed services, but rather the particular proposed placement at Cotting. With respect to the IEP, there is little dispute regarding Student’s learning profile, and both parties have been in general agreement regarding Student’s need for speech-language services, occupational therapy services, and physical therapy. Parents desired consideration of additional educational issues which, they believed, should result in adding certain services to the IEP—for example, vision therapy—and an appropriate transition to a school-based program. They also sought extended day services, as well as identification of the programs that Sutton intended to use to address Student’s reading, writing and math needs. Thus, it seems likely that there was sufficient agreement regarding the proposed IEP services so that if an appropriate placement could have been identified, Parents would have agreed to placement and to many of the services proposed within the IEP, and at the same time, Parents may have then sought Sutton’s payment for additional services and, if unsuccessful, would have considered continued private funding of these additional services. Exhibits P-78, P-79, P-81, S-81.

For these reasons, I find that Sutton’s proposing an inappropriate placement likely precluded Student from receiving the special education and related services described within Sutton’s proposed IEP, thereby denying Student FAPE for the period 10/25/07 to 10/24/08. I therefore conclude that the IEP as a whole, which includes the proposed placement to Cotting, was not reasonably calculated to provide Student with FAPE.

Issue # 3: Is the IEP proposed by Sutton for the period 10/27/08 to 10/26/09 reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment?

I next consider the appropriateness of the more recently-proposed IEP for the period 10/27/08 to 10/26/09. This IEP is described more fully in the Factual Background section of this Decision. In summary, the IEP called for

· academic services (English language arts by a special education teacher/1:1 aide for 135 minutes each day; math by a special education teacher/1:1 aide for 75 minutes each day);

· related therapeutic services (1:1 speech-language services for 30 minutes, four times per week; 1:1 speech/apraxia services by a speech-language therapist for 30 minutes each day; fine motor/sensory services by an occupational therapist/1:1 aide for 30 minutes each day; gross motor services by a physical therapist/1:1 aide for 30 minutes, twice per week);

· social pragmatic services (social pragmatics by a 1:1 assistant for 45 minutes, once per week; 1:1 social pragmatics by a social adjustment counselor for 30 minutes, once per week);

· adaptive physical education (provided by an adaptive physical education teacher for 30 minutes, once per week); and.

· transition services (provided by a 1:1 assistant for 6.75 hours each day).

The IEP also proposed the consultation services by school staff and Parents for one hour, four times per year; by school staff for one hour per month; and by the occupational therapist/1:1 aide for 30 minutes each week. Exhibit S-13.

The IEP proposed by Sutton for the period 10/27/08 to 10/26/09 includes goals regarding

· communication, to be addressed through services of a speech-language pathologist;

· apraxia of speech, also to be addressed through services of a speech-language pathologist;

· sensory and fine motor, to be addressed through services of an occupational therapist and aide;

· English language arts and math, to be addressed through academic instruction by a special education teacher and aide;

· gross motor, to be addressed through services by a physical therapist or aide;

· daily living and self help skills, to be addressed by the occupational therapist, special education teacher, and aide; and

· adaptive physical education (APE), to be addressed through instruction by an APE teacher.

Testimony of Iadarola, Sinkus; exhibit S-13.

Sutton presented evidence in support of the appropriateness of the classroom placement, the academic portions of the IEP (English language arts and math), and the speech-language and physical therapy services. The IEP called for Student to be placed within an intensive special needs classroom. Sutton’s special education teacher (Donna Sinkus) provided credible, persuasive testimony that this classroom could implement the accommodations and the specialized instruction called for in the IEP, and that Student’s academic needs would be addressed appropriately within this classroom. Sutton also presented credible, persuasive evidence in support of the appropriateness of the IEP services to be provided by a speech-language therapist and those services to be provided by a physical therapist. Testimony Messier, Kenney, Sinkus, Curran; exhibit S-13.

Parents provided no probative evidence to the contrary with respect to the proposed classroom placement, academic portions of the IEP, and speech-language and physical therapy services.

Neither party addressed the appropriateness of the parts of the IEP relevant to social pragmatics services and adaptive physical education.

I now turn to parts of the IEP that were actively disputed by the parties. A particular point of contention regarding this IEP pertains to vision therapy. Because vision is a motor process, Student’s deficit regarding motor skills affects his visual performance. Student’s significant visual deficiencies impact negatively upon his academic progress and his functioning in daily life, including getting dressed and eating. Vision also has a cognitive component which is developmentally dependent upon on motor skills. In the absence of automatic eye movement, Student is not acquiring visual information in an organized way to build accurate visualization of words and numbers. Vision therapy has been provided by Parents to encourage development of the ocular fine motor skills of near focus and eye movement control. Progress reports indicated that Student improved in these areas. This therapy was provided in weekly sessions—for example, for 12 weekly weeks from September to January 2009 and for ten weekly visits from March to June 2009. Testimony of Mother; exhibits P-68, P-101, P-102, S-37, S-55, S-114.

By letter of October 12, 2007, a behavioral optometrist (John Abbondanza, OD, FCOVD of Vision Care Specialists) summarized his examination and recommendations that Student receive vision therapy. The first goal of vision therapy would be for Student to learn how to integrate vision and movement in a productive manner, since this would allow him to orient himself properly to tasks that require both vision and movement, such as writing. Vision therapy would also be provided to teach Student how to move his eyes independent of his head. The evaluation noted that Student would be learning “basic visual skills” that are normally learned well before age 11. Exhibit S-55.

Sutton’s occupational therapist (Gina Iadarola) who testified regarding this issue had previously observed Student on August 27, 2007 and provided a written report of her observation. Testimony of Iadarola; exhibit S-3.

Ms. Iadarola did not dispute Student’s need for vision therapy to address Student’s convergence, tracking, and visual spatial issues. But, Ms. Iadarola testified that the fine motor goals, objectives and services contained within the IEP address appropriately Student’s needs for this therapy. Ms. Iadarola has significant experience in the area of vision therapy. She testified credibly and persuasively. Testimony of Iadarola exhibit S-148 (resume).

Parents have provided evidence in support of Student’s need for vision therapy. However, Parents provided no evidence that would support a finding that vision therapy can only be appropriately provided through separately-provided services or that these services cannot be provided as part of Student’s occupational therapy services as proposed within the IEP. In sum, Ms. Iadarola’s credible testimony that the IEP appropriately addresses Student’s need for vision therapy is substantially unrebutted.

Another principal concern of Parents is Student’s activities of daily living (ADL) and, in particular, the need to address Student’s toileting needs with a systemic approach that will also maintain Student’s self-esteem. It is not disputed that Student has not yet mastered toileting and, in particular, continues to be unable to defecate in a toilet. Student’s difficulties regarding toileting reflect his apraxia, which diminishes his motor planning and sequencing ability. Because of Student’s awareness of his difficulties in this area (as compared to the abilities of his peers), this is an emotionally-charged issue for Student who now wants to address this issue only with Mother. Testimony of Carley, Bakow, Mother.

The IEP itself provides little attention to the issue of toileting. Under goal # 9, toileting is addressed only through the following benchmark/objective:

[Student] will demonstrate improved functional dressing, hygiene/toileting, and grooming skills for greater independence in the school and home environments with decreasing levels of staff assistance to increase independence during his daily routine on 4 out of 5 presented opportunities as evidence [sic] by data collection sheets.

Exhibit S-13.

Parents’ witnesses testified persuasively that in order for the toileting issues to be addressed effectively, Student requires a behavioral and integrated approach that reflects his neurological deficits and utilizes specific and appropriate strategies for learning. To be effective, instruction in toileting must be coordinated, comprehensive, consistent, intensive, and sequential. The instruction should occur both at school and in the privacy of Student’s home. This part of Student’s education likely requires someone with specialized knowledge in the area of toileting and who is able to work with Parents regarding the full range of issues relevant to toileting, including Student’s emotional vulnerability relevant to this issue. The home component of toileting is particularly important because of Student’s age, which makes him highly vulnerable to embarrassment and emotional difficulties if too much of the toilet training occurs at school. For similar reasons, other ADL skill areas need to be addressed through a home component, with carry-over at school. With appropriate instruction, Student would be able to learn appropriate toileting skills. Testimony of Carley, Bakow.

Several of Parents’ witnesses persuasively emphasized the very high importance of Student’s being taught toileting. This is because his toileting abilities define (and limit) what he can do socially and where he can go in the community. For example, Mother testified that she is not able to take Student to church because of the risk of an accident. In addition, Student’s toileting difficulties induce shame, a sense of being defective, and anxiety; as a consequence, these difficulties impact negatively upon his education in other areas. When an accident occurs regarding toileting, Student shuts down, his ability to learn ends temporarily, and he requires the assistance of his Mother. The need to address this issue is not disputed by the parties. Testimony of Mother, Bakow, Ronstadt.

Ms. Carley testified that her review of the most recent IEP (exhibit S-13) indicated that more was needed than was described within the IEP to address Student’s toileting issues and to address his other ADL skills.⁴⁶

Sutton did not rebut the evidence presented at hearing regarding Student’s current toileting needs and how they should be addressed. Rather, Sutton’s evidence supported the need for a comprehensive toileting program and added further clarification regarding the appropriate process for addressing this issue. In particular, Ms. Iadarola testified that (1) Student’s toileting difficulties appear to have become more severe over the past six to eight months, (2) as a first step there would need to be an assessment of Student’s toileting needs and how they should be addressed, (3) Student’s toileting needs arise out of his disabilities, (4) a systematic approach to address these issues is needed, (5) home-based services for toileting are likely to be necessary, (6) toileting would should be addressed consistently at school and home, and (7) Student’s vulnerability regarding self-esteem would be an important consideration in developing an appropriate program to address toileting issues. Testimony of Iadarola.

Sutton’s only substantive defense of the appropriateness of its IEP as it proposes to address toileting issues is that the IEP was reasonable when it was developed in October 2008 because the extent of Student’s toileting needs were not evident to Sutton at that time. For the reasons explained below, I find this argument to be unpersuasive in light of Sutton’s obligation to determine Student’s toileting and ADL needs and its failure to do so.

As discussed above within this section of the Decision, Sutton has responsibility to propose an IEP that is “tailored to the unique needs” of Student.⁴⁷ A complete understanding of Student’s current levels of performance and needs is necessary in order to develop appropriate IEP goals, benchmarks and services to address Student’s unique needs regarding toileting or other ADL needs.⁴⁸ Appropriate assessments and observations were required for this purpose.⁴⁹ Further assessments and observations may also be triggered by new information (including new information from Parents) regarding Student’s performance, behavior, and disabilities.⁵⁰

First, Sutton has never determined Student’s current needs regarding toileting. With respect to Student’s need for the development of fine motor skills (which includes Student’s needs in the areas of daily living skills, including toileting), Sutton did not understand and therefore could not properly plan to address Student’s needs when it proposed the IEP. This is apparent from Sutton’s lack of relevant, current information pertaining to Student’s toileting skills and deficits when the IEP was developed on October 27, 2008, as illustrated by the following excerpt from the IEP describing Student’s current performance under IEP goal # 9 (which is the goal that pertains to Student’s toileting skills and deficits):

[Student’s] current performance in terms of his fine motor and visual motor control was obtained through verbal report of his Parents as well as Dr. Chaskelson at a team meeting on 6/13/07. Therefore, specific current status with regard to outlined objectives is quite limited. The proposed objectives reflect the verbal and written material available for review for 6/13/07 and will be updated and modified when additional information with regard to [Student’s] status is known (through observation, additional reports, etc.).

Exhibit S-13 (pages 11 and 17 of 27) . There is no evidence that Sutton obtained more recent, updated information regarding this issue until Sutton heard the testimony at the evidentiary hearing in the instant dispute.

Second, at least since October 2007 when Sutton proposed the first of the two disputed IEPs, Sutton has known that toileting was an issue that needed to be addressed through IEP services. This IEP included a benchmark/objective relative to toileting, which remained substantially the same in the subsequent IEP developed a year later (the benchmark/objective from the October 2008 IEP is quoted above). Exhibits S-8, S-13.

What is also noteworthy is that the IEP developed in October 2007 included substantially the same description of Student’s current performance level as is quoted above from the October 2008 IEP—that is, Sutton did not know in October 2007 and still did not know in October 2008 the extent of Student’s toileting and other activities of daily living deficits and how those deficits should be addressed. Exhibits S-8, S-13. I find that by October 2008, Sutton objectively should have known the extent of Student’s toileting needs and how they should be addressed.

Third, Sutton discounted or ignored the information from Parents that put Sutton on notice that Student may have serious toileting issues that needed to be addressed through a comprehensive program that included a home-based component. On October 21, 2008, Parents provided Sutton with information regarding an organization (ICCD), which Parents believed could assist Student with his toileting issues, and at the IEP Team meeting on October 27, 2008, toileting was discussed as an important issue for Student. Sutton was placed on notice that toileting was a serious concern. The Sutton members of the Team proposed to address Student’s toileting issues within the school-based program, rather than through ICCD or other home-based model that Parents had requested. Testimony of Mother; exhibits P-45, P-46, S-13.

Soon after the IEP Team meeting, Sutton received additional information from Parents, indicating that toileting was a serious, unmet concern that should be addressed through the IEP. For example, on November 18, 2008, Parents sent to Sutton a letter of October 23, 2008 from Student’s pediatrician To Whom It May Concern that explained, in relevant part, as follows:

[h]is learning needs to take place in very restrictive and familiar settings, and experience has confirmed that this approach has met with substantial improvement.

For this reason, teaching him activities of daily living (toileting, dressing, etc.) in his home is a medical necessity. Learning these ADL’s is vital to his development and ability to transition to any educational activities outside of this home.

Exhibits P-54, S-80. Notwithstanding this information and concern, Sutton never took the necessary first step, as later recommended by its own occupational therapist (Ms. Iadarola), of conducting an assessment of Student’s toileting needs and how they should be addressed, and Sutton never amended its IEP to provide, for example, for necessary home-based services.

Well before the time that Parents unilaterally obtained their own consultation regarding toileting issues and home-based services in June 2009, Sutton should have conducted its own evaluation regarding toileting and should have amended the IEP to address toileting issues appropriately, including the provision of home-based services in this area.

For these reasons, I find that Sutton’s IEP was not reasonably calculated to provide Student with FAPE in regard to addressing Student’s activities of daily living and, in particular, his toileting difficulties.⁵¹

Issue # 4: In developing the proposed placement for the period 10/25/07 to 10/24/08, did Sutton unilaterally pre-determine Student’s placement and deny Parents meaningful participation in the placement decision, thereby resulting in violating Parents’ procedural rights?

Parents allege that in developing the proposed placement for the period 10/25/07 to 10/24/08, Sutton unilaterally pre-determined Student’s placement at the Cotting School, thereby denying Parents a meaningful opportunity to participate in the placement decision. I do not doubt that Parents believe that, at the IEP meeting on October 25, 2007, Sutton would only consider one placement—that is, the Cotting School. In Mother’s words: “[Cotting School] wasn’t presented as a choice. [It was presented] [t]hat it was a done deal. That it was already determined.”⁵²

However, I am persuaded by Sutton witnesses that this was never their intent and that Mother’s leaving the October 25, 2007 IEP Team meeting precipitously precluded a fuller discussion of this issue. Ms. Austein testified that Cotting was the only proposed placement discussed at the IEP Team meeting with Parents, but it was not meant to be the only placement that Sutton would consider since Sutton was willing to fund any appropriate placement for Student. Ms. Messier and Ms. Kenney also testified that for purposes of this meeting with Parents, Sutton considered Cotting to be one placement option, but not necessarily the only option for Student. Testimony of Austein, Messier, Kenney.

In general and at other specific times, Sutton has demonstrated its willingness to consider and fund a range of private placements. For example, during the summer of 2008, Parents and Sutton staff collaborated to try to find an appropriate, mutually-agreeable out-of-district placement for Student. Sutton took the position that it would be willing to fund any private school placement, so long as the placement is appropriate to meet Student’s educational needs. Testimony of Mother, Austein; exhibits P-23, P-24, P-25, P-27, P-30, P-33, P-83, S-11, S-65, S-68, S-69. This history further supports the testimony of Sutton’s witnesses.

I find that testimony of the Sutton witnesses to be credible and persuasive in this regard, and accordingly, I find that Sutton did not predetermine Student’s educational placement for purposes of the IEP for the period 10/25/07 to 10/24/08. Accordingly, there was no procedural violation.

Issue # 5: In developing the 10/25/07 to 10/24/08 IEP and the 10/27/08 to 10/26/09 IEP, did Sutton fail to utilize an appropriately-constituted IEP Team, thereby resulting in violating Parents’ procedural rights?

Parents allege improper composition of the IEP Team with respect to each of the two IEP Teams that developed the two IEPs in dispute.

As explained above in this section of the Decision, not all procedural violations are actionable. In order to obtain relief, Parents have the burden of persuasion to demonstrate harm–that is, that the violation impeded Student’s right to FAPE, significantly impeded Parents’ opportunity to participate in the decision-making process regarding FAPE, or caused a deprivation of educational benefits.⁵³

There are separate allegations with respect to each of the two Team meetings that resulted in IEPs for Student—the October 25, 2007 IEP Team meeting and the October 27, 2008 IEP Team meeting. I will consider each separately after reviewing the general requirements regarding the composition of the IEP Team.

The IDEA describes the required and optional members of an IEP Team as follows:

Individualized education program team. The term “individualized education program team” or “IEP Team” means a group of individuals composed of–
(
i) the Parents of a child with a disability;

(ii) not less than 1 regular education teacher of such child (if the child is, or may be, participating in the regular education environment);

(iii) not less than 1 special education teacher, or where appropriate, not less than 1 special education provider of such child;

(iv) a representative of the local educational agency who–
(I) is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities;
(II) is knowledgeable about the general education curriculum; and
(III) is knowledgeable about the availability of resources of the local educational agency;

(v) an individual who can interpret the instructional implications of evaluation results, who may be a member of the team described in clauses (ii) through (vi);

(vi) at the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate; and

(vii) whenever appropriate, the child with a disability.⁵⁴

The relevant IDEA regulations are similar but include additional guidance:

IEP Team .
(a) General . The public agency must ensure that the IEP Team for each child with a disability includes–

(1) The Parents of the child;

(2) Not less than one regular education teacher of the child (if the child is, or may be, participating in the regular education environment);

(3) Not less than one special education teacher of the child, or where appropriate, not less then one special education provider of the child;

(4) A representative of the public agency who–

(i) Is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities;

(ii) Is knowledgeable about the general education curriculum; and

(iii) Is knowledgeable about the availability of resources of the public agency.

(5) An individual who can interpret the instructional implications of evaluation results, who may be a member of the team described in paragraphs (a)(2) through (a)(6) of this section;

(6) At the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate; and

(7) Whenever appropriate, the child with a disability.⁵⁵

October 25, 2007 IEP Team Meeting: The IEP Team convened on October 25, 2007 to review the observations by Sutton staff and to develop a new IEP for Student. The IEP Team included the following Sutton members: the Director of Special Education, two special education teachers, a speech-language pathologist, and an occupational therapist. One of the special education teachers (Margaret Horan) was a certified regular educator and had previously taught regular education in a non-special education environment. Testimony of Horan; exhibit S-146. Also, both Parents, Student’s psychologist, and two staff from Lindamood Bell attended. It is not disputed that the IEP Team did not include anyone who, at the time of the meeting, was a Sutton regular education teacher. It is also not disputed that Parents had not agreed to waive the attendance of a regular education teacher. Testimony of Austein; exhibit S-8.

As noted in the above-quoted statutory and regulatory language, Sutton was required to include one “regular education teacher of the child (if the child is, or may be, participating in the regular education environment).” The purpose of this provision is to provide the Team with “important expertise regarding the general curriculum and the general educational environment” so that the IEP Team will have the opportunity to make an appropriate educational decision and so that the parents will have a meaningful opportunity to participate in educational decisionmaking.⁵⁶

In the instant dispute, Sutton did not include a regular education teacher of Student because Student was not in regular education, nor was it anticipated that he would be receiving services within regular education. Testimony of Austein. Arguably, Student may be educated in certain limited respects with regular education students. For example, Parents have provided various opportunities for socialization with typical peers (including a regular, Saturday morning program), and these opportunities have likely benefited Student. Testimony of Mother.

However, I note that the proposed IEP did not include any regular education services or opportunities. In the objections and concerns that they communicated to Sutton regarding this IEP, Parents did not take the position that Student may or should be educated or spend time with typical peers. Parents have provided no evidentiary basis upon which I might conclude that the IEP was deficient in not providing any opportunity for interaction or learning with typical peers, nor have Parents argued that the IEP was deficient for this reason. In addition, one of the Team participants (Ms. Horan) had extensive experience as a regular educator, and she would have likely been able to consider the need for the IEP to include regular education services or opportunities.

For these reasons, I find that Sutton may possibly have technically violated this requirement regarding IEP Team composition, but I further find that Parents have not met their burden of demonstrating that any such violation impeded Student’s right to FAPE, significantly impeded Parents’ opportunity to participate in the decision-making process regarding FAPE, or caused a deprivation of educational benefits.⁵⁷ Accordingly, Parents are not entitled to relief on this issue.⁵⁸

October 27, 2008 IEP Team Meeting: The IEP Team re-convened on October 27, 2008 for the purpose of preparing a new IEP for Student. The Sutton members of the IEP Team included only the Director of Special Education Services (Ms. Austein) and a Sutton speech-language pathologist (Ms. Messier). Parents and their two private tutors also attended. Parents had not agreed to waive the attendance of any members of the Team, and they were not told why other Sutton staff were not present. Testimony of Mother; exhibit P-119.

At the outset, there is the question of whether a regular education teacher should have been in attendance. For the same reasons that I found (above) that Parents are not entitled to relief for Sutton’s failure to have a regular education teacher in attendance at the October 25, 2007 Team meeting, I find that Parents are not entitled to relief with respect to this failure regarding the October 27, 2008 Team meeting.

The above-quoted statute and regulations require that an IEP Team meeting include at least one “special education teacher,” or where appropriate, at least one “special education provider of such child.” This language is properly understood as requiring Sutton to provide a special education teacher of Student .⁵⁹ Since Sutton was not proposing that Student be served by a private provider and since Sutton had last served Student prior to March 2005, it seems clear that the only special education teacher “of Student”, who must be part of the IEP Team meeting, was the special education teacher who would be working with Student in Sutton’s proposed placement.

The importance of having a Sutton special education teacher who would be working with Student in Sutton’s proposed placement within the Sutton Public Schools (or at least a special education teacher who could describe the actual services, accommodations, staffing, other students, and classroom being proposed) seems self-evident. It is this special education teacher who can explain to and discuss with Parents the proposed special education classroom, the accommodations and services that would be provided within it, how those accommodations and services would meet Student’s needs, the staffing of the classroom and Student’s likely peers.

The evidence indicates that without this person present during the October 2008 IEP Team meeting, Sutton did not, and presumably was not able to, have a meaningful discussion with Parents regarding the proposed classroom placement and the services and accommodations provided by the classroom special education teacher. Without this discussion, it would have been impossible for Parents to participate fully or meaningfully in the IEP Team process of deciding Student’s services and placement. Thus , Sutton denied Parents the opportunity “to participate in meetings with respect to the identification, evaluation, and educational placement of the child.”⁶⁰

The IDEA seeks to insure the “full participation” of Parents in the resolution of substantive disagreements relative to their son’s special education and related services.⁶¹ The Supreme Court has further explained:

The core of the statute, however, is the cooperative process that it establishes between parents and schools. Rowley, supra, at 205-206, 102 S.Ct. 3034 (“Congress placed every bit as much emphasis upon compliance with procedures giving parents and guardians a large measure of participation at every stage of the administrative process, … as it did upon the measurement of the resulting IEP against a substantive standard”). The central vehicle for this collaboration is the IEP process.⁶²

Several courts have indicated that interfering with required parental participation is an actionable claim that, in and of itself, may be considered a denial of FAPE.⁶³ The participation of Parents ensures that those persons who know Student best are allowed to contribute in a meaningful way.⁶⁴

Including parents in the IEP and placement decision-making process is essential for every student, but its importance cannot be overstated in this particular case where Student has extraordinarily complex learning deficits and Parents are extremely well-versed in and involved in meeting those needs. I agree with Judge Saylor in his decision regarding a previous dispute between the same parties, when he commented that

[Student’s] Parents are to be commended for their zealous efforts in behalf of their son’s education. In particular, his mother has demonstrated almost superhuman resourcefulness in her development of an alternative placement for him. Her love and devotion, and her unflagging commitment to his education, are evident from the record.⁶⁵

Sutton argues that it met statutory/regulatory requirement regarding attendance by a special education teacher by the attendance of Student’s private tutors and the Sutton Special Education Director at the IEP Team meeting. I disagree. While the attendance of these three people likely was important for purposes of discussing Student’s special education needs and how they should be met, none of them was in a position to replicate the knowledge and understanding of the Sutton special education teacher who would have likely been working with Student in Sutton’s proposed placement of Student back into the Sutton Public Schools.

I find that Sutton’s failure to include a special education teacher at the October 2008 IEP Team meeting significantly impeded Parents’ opportunity to participate in the decision-making process regarding FAPE.

Issue # 6: Were Sutton’s proposals for services or placement “illusory” because they either could not be implemented or were never seriously intended to be implemented by Sutton, thereby violating Parents’ rights?

For reasons already explained within the discussion of issue # 2, above, I have determined that Sutton’s proposed placement at the Cotting School was “illusory” in the sense that the IEP services could not be implemented within this placement.

As discussed within other parts of this Decision, there was no evidentiary basis from which one could conclude that the remaining parts of the disputed IEPs were “illusory” in the sense that they either could not be implemented or were never seriously intended to be implemented by Sutton.

Issue # 7: In the event that Sutton has violated Parents’ right to appropriate IEPs for the time periods of 10/25/07 to 10/24/08 and 10/27/08 to 10/26/09 or in the event that Sutton has otherwise violated Parents’ rights (as referenced in issues ## 1, 4, 5, and 6 above), are Parents entitled to reimbursement for part or all of their costs associated with the educational program provided to Student from 10/25/07 to 10/25/09?

Parents are entitled to reimbursement for their out-of-pocket expenses only if I conclude not only that the proposed IEP violated the IDEA but also that the privately-provided educational services were appropriate. If Sutton failed in its obligation to provide FAPE to Student, Parents may enroll their son in a private school or engage private services and seek retroactive reimbursement for the cost of the private school or services. As a BSEA Hearing Officer, I may require Sutton to reimburse Parents for the cost of that enrollment only if I find both that (1) Sutton had not made FAPE available to Student in a timely manner prior to that enrollment and (2) the private school placement or services were appropriate. In such circumstances, Sutton will be responsible for the reasonable costs incident to that private placement or services.⁶⁶

Not all of the statutory requirements of FAPE apply to private educational services.⁶⁷ Even so, Parents will not be entitled to reimbursement for the privately obtained services unless they offered Student “an education otherwise proper under [the] IDEA.”⁶⁸ When a public school system has defaulted on its obligations under the Act, a private school placement is “proper under the Act” if the private educational services are “reasonably calculated to enable the child to receive educational benefits”.⁶⁹ The private educational services “ need provide only some element of the special education services missing from the public alternative in order to qualify as reasonably calculated to enable the child to receive educational benefit” (rather than addressing “every last one of the child’s special education needs”), with the reasonableness of the private placement depending upon “the nexus between the special education required and the special education provided.”⁷⁰

Reimbursement is a matter of equitable relief, with the decision-maker having the responsibility to consider, among other things, the reasonableness of the parties’ positions.⁷¹ In exercising this discretion, I consider the equities.⁷²

Issue # 2: In the discussion of issue # 2, above, I found that Sutton’s IEP for the period from 10/25/07 to 10/24/08 was not reasonably calculated to provide Student with FAPE. Since Sutton has failed in its obligation to provide Student with FAPE for this time period, Parents were entitled to unilaterally arrange for special education and related services during the life of this IEP and continuing until the beginning of the next IEP on 10/27/08 (i.e., the time period from 10/25/07 through 10/26/08) , and then seek retroactive reimbursement for their out-of-pocket costs of these services.

I now turn to a consideration of the special education and related services that were provided by Parents and for which they seek reimbursement from 10/25/07 through 10/26/08 and whether Parents are entitled to reimbursement under the above-stated standards.

Parents seek reimbursement for the following:

· Academic tutoring : 1:1 services for two hours per day.

· Occupational therapy : out-of-pocket co-pay expenses for 1:1 services for one hour, twice each week; and the full cost of 90-minute dynamic listening sessions each day for periods of eight to ten days, repeated two or three times each year.

· Social group : Saturday mornings.⁷³

Academic Tutoring: Since November 2007 and through the present, Student has been receiving 1:1 tutoring for two hours every day from November 2007 until June 2009 and 90 minutes since June 2009. The tutoring was provided by Ms. Ronstadt from November 2007 until September 2008 and since June 2009. Another tutor, Yasmeen Bressner provided the tutoring from September 2008 to June 2009. Ms. Bressner is certified to teach children with mild to moderate special education needs. Student’s tutoring instruction began with reading, and later included science and history. Testimony of Ronstadt, Mother; exhibits P-69, P-87, P-89, P-109, P-113, P-114, P-115, S-12, S-58, S-63, S-66, S-82, S-83, S-84, S-123.

Ms. Ronstadt testified that Student has made significant progress over the course of the nearly two year period from November 2007 to the present as a result of the tutoring. She noted, in particular, Student’s improvements in reading and language skills (for example, expanding his site words). She also explained that Student has developed many abilities that are foundational for learning—for example, he has substantially improved his ability to sustain his attention, he has much less fatigue in a learning environment, he has become much more self-aware, he has become more independent, and when distracted, it takes less time for him to come back to what he is supposed to be focused on. Sutton’s observation of this tutoring further supported the conclusion that the tutoring was productive and engaging. Other professionals, including Student’s speech-language pathologist believed that the work being done during tutoring was effective. Testimony of Mother, Ronstadt; exhibits P-70, P-108, S-39, S-40, S-115, S-127, S-128, S-129, S-130, S-131, S-132, S-133, S-134, S-135, S-136, S-137, S-138, S-142.

Ms. Ronstadt testified that, in part because of her own efforts, there has been a significant amount of communication and collaboration between her work with Student and Student’s other service providers (including Student’s therapist, occupational therapist, speech-language therapist, and vision specialist). She also noted the inter-related nature of Student’s educational needs—for example, if his vision issues are not addressed, it is difficult for him to learn the content of what she is teaching him.

Ms. Ronstadt testified that she observed Student’s other tutor, Ms. Bressner (who tutored Student from September 2008 to June 2009) and found that the other tutor had moments of good teaching but needed more structure. Ms. Ronstadt’s written report to Parents regarding Ms. Bressner stated that Ms. Ronstadt believes Ms. Bressner to be a good teacher and had a “nice” rapport with Student, but she “needs some work when thinking about [Student’s] needs and designing lesson plans for him.” More specifically, Ms. Ronstadt noted that there needed to be more repetition with an implemented theme and Student needed to be “pushed harder” particularly in the areas of self-correcting and independent action. Progress report by Ms. Bressner indicated progress. Sutton’s observation of Ms. Bressner was also positive. Both tutors observed Student’s vision therapy and were able to carry over and implement some of the techniques from vision therapy to help Student with tracking during tutoring lessons. Testimony of Mother; exhibits P-69, P-80, P-109, P-114, S-12, S-116, S-119, S-122, S-126, S-139, S-143.

Sutton sought to discount the value or usefulness of this tutoring through the testimony of a special education teacher (Margery Horan) who observed Student in the spring of 2007 and who was present for the testimony of Ms. Ronstadt. Ms. Horan testified that comparing what she observed in the spring of 2007 and what she gleaned from Ms. Ronstadt’s testimony, Student had not made significant academic progress as a result of the tutoring and that Ronstadt’s testimony did not indicate that she was utilizing any particular teaching methodology. Testimony of Horan. I give little weight to this testimony simply because the basis for it is the comparison of what Ms. Horan observed on one particular day with what she gleaned from the tutor’s testimony at the hearing. Simply stated, Ms. Horan’s testimony is outweighed by the detailed, credible and persuasive testimony of Ms. Ronstadt.

For these reasons, I find that the academic tutoring privately provided by Parents from 10/25/07 through 10/26/08 was a necessary and appropriate educational service that resulted in Student’s gaining substantial and meaningful benefit. I conclude that Sutton must reimburse Parents for all out-of-pocket expenses relative to their privately providing academic tutoring services to Student from 10/25/07 through 10/26/08.

Occupational Therapy: Since 2004, Student has been receiving occupational therapy (OT) services from the Center for Holistic Integration, Listening, Learning and Development (Project CHILLD). From October 2007 through the present, these services included 1:1 OT for one hour, twice each week, plus 90-minute dynamic listening sessions each day for periods of eight to ten days, repeated two or three times each year. Student’s need for traditional OT services is not disputed. The occupational therapist who has provided or supervised all of these services (Ms. Carley) testified as to the importance of the dynamic listening sessions because they address Student’s auditory and vestibular processing and because Student has gained significant benefit from these sessions. Testimony of Carley.

A March 10, 2009 re-evaluation report by Ms. Carley found that Student was making significant progress as a result of his OT services. The report recommended that Student continue with OT services, the Tomatis-based sound training, speech-language using the prompt method of communication as well as other speech-language services. In addition, the report recommended that Student continue to participate in a structured vision therapy program to improve visual processing and specific visual skills. Exhibit P-123.

As a result of these OT services, Student has made consistent, steady progress regarding foundations skills—for example, developing muscles and skills regarding his hand movements. Other examples of improvement have included following directions, getting objects, and setting up and cleaning up the environment. The next step is for Student to learn functional skills such as adult daily living skills (including, for example, toileting, grooming, and dressing) and school-based skills necessary to participate and follow directions. Testimony of Carley.

For these reasons, I find that the occupational therapy privately provided by Parents from 10/25/07 through 10/26/08 was a necessary and appropriate related service that resulted in Student’s gaining substantial and meaningful benefit. I conclude that Sutton must reimburse Parents for all out-of-pocket expenses relative to their privately providing occupational therapy services to Student from 10/25/07 through 10/26/08.⁷⁴

Social Group: Father takes Student to a social group at ICCD in Canton, MA, on Saturday mornings, which Student enjoys. The only evidence regarding this service was the testimony of Mother who explained that there is social interaction and 1:1 interaction, with facilitation, and they use play therapy. Mother also testified that Student seems to enjoy and benefit from this experience. Mother also made it clear that she has never been to the social group and had limited knowledge of what occurs and how Student may have benefitted from the experience.

I find that there was insufficient evidence to support a finding regarding this service and its benefits to Student. Accordingly, I conclude that Parents have not carried their burden of persuasion regarding reimbursement for this service.

Issue # 3: In the discussion of issue # 3, above, I found that Sutton’s IEP for the time period from 10/27/08 to 10/26/09 was not reasonably calculated to provide Student with FAPE in regard to addressing Student’s activities of daily living and, in particular, his toileting difficulties.

As discussed above, Sutton’s responsibilities to address Student’s toileting issues included an initial assessment, as well as the development and implementation of home-based services and school-based services. Parents obtained two private consultation sessions from Gregory Paquette in June 2009 for purposes of understanding and addressing Student’s toileting issues at home. There was no other evidence of private services obtained by Parents relative to toileting or other activities of daily living.

I find that these consultation services were an appropriate and necessary first step for purposes of developing a home-based toileting program that was necessary in order for Student to receive FAPE. I conclude that Sutton must reimburse Parents for all out-of-pocket expenses relative to their privately obtaining private consultation sessions from Mr. Paquette during the time-period of the October 2008 IEP.

Issue # 5: In the discussion of issue # 5, I found that Sutton’s failure to include a special education teacher at the October 2008 IEP Team meeting significantly impeded Parents’ opportunity to participate in the decision-making process regarding FAPE. However, for the following reasons, I decline to order reimbursement relative to this violation.

Parents have been willing to explore, in good faith, private placements, as has Sutton, for Student. But, Parents have always maintained that Sutton has not understood their son’s special education needs and how they should be addressed, and they have consistently refused to consider a placement back into the Sutton Public Schools. Parents have never taken the position that an in-district placement could ever be made appropriate, regardless of what staffing, special education and related services, and accommodations might be provided. Testimony of Mother, Austein. See also Parents’ Closing Argument.

In sum, there is no basis for a finding that had Sutton provided a meaningful discussion with Parents regarding Student’s services and placement within the Sutton Public Schools, Parents would have had any interest in considering, much less accepting, the services and placement and allowing Student to return to an in-district program. In addition, by the date of the October 2008 IEP Team meeting, the parties had exhausted their efforts to find a mutually-acceptable out-of-district placement. Thus, it seems likely that had Sutton followed appropriate IEP Team procedures, Parents would simply have continued to provide their son unilaterally with all of his educational and related services; and Parents have provided no evidence or argument to the contrary.

I also note that Sutton has consistently maintained a position of being willing to fund any private placement that could appropriately meet Student’s needs and that would be acceptable to Parents. In the months prior to the proposal of the October 2008 IEP, the parties worked together cooperatively for this purpose. It was only when no such private placement could be found that Sutton turned to its consideration of an in-district placement. Testimony of Mother, Austein; exhibits P-23, P-24, P-25, P-27, P-30, P-33, P-83, S-11, S-65, S-68, S-69. This evidences Sutton’s good faith efforts to spare no expense to resolve this matter in an appropriate and agreed-upon manner.

For these reasons, I conclude that although the violation was substantial and implicated FAPE, there was no substantive harm to Parents, and that Sutton has acted in good faith to try to find an appropriate placement for Student. Accordingly, I decline to order reimbursement for services (other than the two consultation sessions with Mr. Paquette, discussed above) with respect to the October 2008 to October 2009 IEP.

Reduction of Reimbursement: Sutton takes the position that Parents did not provide timely notice of their intent to withdraw their son from public education, obtain services privately, and seek reimbursement from Sutton. Sutton argues that failure to provide timely notice should reduce any reimbursement award.

The federal special education statute provides that reimbursement may be reduced or denied if Parents did not provide oral notice “ at the most recent IEP meeting that the parents attended prior to removal of the child from the public school” or written notice at least ten business days prior to removal.⁷⁵

As explained by the First Circuit:

This [notice requirement] serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a free appropriate public education can be provided in the public schools.⁷⁶

If there is failure to provide notice, a BSEA Hearing Officer may in his or discretion, but is not required, to reduce or deny reimbursement.⁷⁷ In exercising this discretion, I consider the equities.⁷⁸

Sutton correctly points out that subsequent to the October 2007 IEP Team meeting, Parents did not provide written notice to Sutton of intent to seek reimbursement until Parents’ letter of March 23, 2008, explaining that Parents would continue to place their son unilaterally and would continue to seek reimbursement from Sutton. Exhibits P-79, S-74. Parents did not provide any subsequent notice of intent to seek reimbursement relevant to the IEP issued in October 2008.

Since March 2005 when Parents removed Student from school and began providing all of Student’s educational services privately, Parents have maintained that Sutton has not proposed services or placement that would provide Student with FAPE, and Parents have consistently taken the position that until Sutton offered FAPE, Sutton must reimburse Parents for their privately-obtained educational services. This is illustrated by the protracted history of disputes between the parties, including the earlier two BSEA decisions and one federal Court Decision as well as the instant dispute, during which Parents have consistently sought reimbursement from Sutton for their privately-obtained services.

Sutton does not argue, nor would there be any evidentiary basis for support of such an argument, that it has not know since March 2005 that Parents were seeking reimbursement for private educational services. Similarly, Sutton has not argued, nor would there be any evidentiary basis for support of such an argument, that it would have acted differently had Parents provided the timely written notice contemplated by the federal special education statute. See Sutton’s Closing Argument.

In short, there is no basis upon which I may conclude that Sutton has been prejudiced or otherwise harmed in any way by any failure of Parents to provide timely notice, and Sutton does not argue to the contrary. 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,⁷⁹ so too Parents should not be penalized for failing to comply with a procedural requirement if their failure has not harmed Sutton.

For these reasons, I decline to reduce Parents’ reimbursement award on the basis of any failure to provide timely notice to Sutton.

ORDER

Sutton shall reimburse Parents for all out-of-pocket expenses relative to their privately providing academic tutoring services to Student from 10/25/07 through 10/26/08.

Sutton shall reimburse Parents for all out-of-pocket expenses relative to their privately providing occupational therapy services to Student from 10/25/07 through 10/26/08.

Sutton shall reimburse Parents for all out-of-pocket expenses relative to their consultation sessions with Gregory Paquette during the time period from 10/27/08 to 10/26/09 .

Parents are entitled to no further reimbursement for services. Parents have sought no relief other than reimbursement for services.

By the Hearing Officer,

William Crane

Dated: January 26, 2010

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 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 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

This statement of the issues was provided to the parties immediately prior to the commencement of the hearing and was discussed with the parties at the beginning of the hearing on September 22, 2009. Parents objected that the statement of the issues did not explicitly include their concern that Sutton has not appropriately understood their son’s various disabilities. As explained to Parents at that time, this concern is subsumed within the general question of whether each IEP at issue was reasonably calculated to provide FAPE. See 20 U.S.C. § 1415(f) (E)(i)-(ii); 34 C.F.R. § 300.513(a) . Otherwise, neither party had any substantive objection to this recitation of the issues after I clarified my understanding of how these issues would be addressed and what they included. See Transcript of hearing day September 22, 2009, pages 4-10. The above statement of the issues is based upon Parents’ hearing request. The IDEA precludes my consideration of any issues not included in Parents’ hearing request. See 20 USC § 1415 (f)(3)(B) (“The party requesting the due process hearing shall not be allowed to raise issues at the due process hearing that were not raised in the notice filed under subsection (b)(7), unless the other party agrees otherwise.”). In their closing argument, Parents have raised issues that extend beyond the above statement of the issues, but my Decision will address only the above-stated issues.

2

In Re: Sutton Public Schools , BSEA # 05-3840, 13 MSER 95, 110 (SEA MA 2007).

3

Unless otherwise indicated, the Sutton person with whom Parents communicated was Margo Austein (Sutton’s Director of Special Education).

4

Within this Decision, the term “Parents” is used even though a letter or e-mail may have been written to or by Father, but not Mother. The evidentiary record indicated that Father did all of the written communication with Sutton but that he did so on behalf of both Mother and Father. The evidence also indicated that Mother and Father took a unified position regarding all issues pertaining to their son’s educational needs and how those needs should be met through special education and related services.

5

In Re: Sutton Public Schools , BSEA # 05-3840, 13 MSER 95 (SEA MA 2007).

6

Id .

7

Id .

8

Id .

9

D.B. v. Sutton , CA No. 07-cv-40191-FDS (D.Mass. 2009).

10

D.B. v. Sutton , at n. 6.

11

Specifically, the issues addressed by the BSEA in that dispute were the following:

1. Whether the Sutton Public Schools failed to conduct required evaluations of Student in advance of the Team Meeting held on May 25, 2006 and, if so, whether that failure resulted in the denial of a free, appropriate public education (FAPE) to Student during the 2006-2007 school year?

2. Whether the May 25, 2006 Team failed to consider relevant Student information presented to it by the Parents and, if so, whether that failure resulted in the denial of FAPE to Student during the 2006-2007 school year?

3. Whether subsequent to the May 25, 2006 Team meeting Sutton failed to issue an individualized education program (IEP) for the 2006-2007 school year and, if so, whether that failure resulted in the denial of FAPE to Student during the 2006-2007 school year?

4. Whether, as a result of Sutton’s action or inactions (described in the above three issues), the Parents are entitled to reimbursement of expenses they incurred in providing an alternate educational program to Student throughout the 2006-2007 school year?

In Re: Neville v. Sutton Public Schools , BSEA # 07-7534, 14 MSER 182 (SEA MA 2008).

12

20 USC 1400 et seq .

13

MGL c. 71B.

14

20 USC 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A).

15

The phrase “least restrictive environment” means that, to the maximum extent appropriate for the particular student, the educational services are to be provided with other students who do not have a disability. 20 USC 1400(d)(1)(A); 20 USC 1412(a)(1)(A); 20 USC 1412(a)(5)(A); MGL c. 71B, ss. 2, 3; 34 CFR 300.114(a)(2(i) ; 603 CMR 28.06(2)(c).

16

20 USC 1414(d)(1)(A)(i)(I)-(III); Honig v. Doe, 484 U.S. 305, 311-12 (1988) ; Rowley , 458 U.S. at 182.

17

Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1086 (1 st Cir.1993) (internal quotations and citations omitted). See also 20 USC 1400(d)(1)(A) (IDEA enacted “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living”); 20 USC 1401(9), (29) ( “free appropriate public education” encompasses “special education and related services,” including “specially designed instruction, at no cost to Parents, 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”); Lessard v. Wilton Lyndeborough Cooperative School Dist. , 2008 WL 484042 (1 st Cir. 2008) (noting the school district’s “ obligation to devise a custom-tailored IEP”).

18

Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 197, n.21 (1982) (“ Whatever Congress meant by an “appropriate” education, it is clear that it did not mean a potential-maximizing education.”); Lt. T.B. ex rel. N.B. v. Warwick Sch. Com., 361 F.3d 80, 83 (1 st 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.”); G.D. v. Westmoreland Sch. Dist., 930 F.2d 942, 948 (1 st Cir. 1991) (special education services need not be “the only appropriate choice, or the choice of certain selected experts, or the child’s parents’ first choice, or even the best choice”).

19

Rowley , 458 U.S. at 207, quoted in Lessard v. Wilton-Lyndeborough Coop. School Dist . , 2010 WL 175090 (1 st Cir. 2010).

20

DB v. Sutton, 07-cv-40191-FDS (D.Mass. 2009). See also Rowley, 458 U.S. at 192 (“in seeking to provide such access to public education, Congress did not impose upon the States any greater substantive educational standard than would be necessary to make such access meaningful”); Houston Independent School Dist. v. VP , 2009 WL 1080639 (5 th Cir. 2009) (after reviewing Rowley standard, concluding that IEP must be reasonably calculated to provide “meaningful educational benefit”); Lauren P. v. Wissahickon School Dist. , 2009 WL 382529 (3 rd Cir. 2009)(IEP must confer “significant learning” and “meaningful benefit” on student); N.B. v. Hellgate Elementary School Dist ., 541 F.3d 1202, 1212-13 (9 th Cir. 2008) (school must provide a student with a “meaningful benefit”); Frank G. v. Board of Educ. of Hyde Park, 459 F.3d 356, 364 (2 nd Cir. 2006) (IDEA requires a student to be provided with “meaningful access” to education); A.B. ex rel. D.B. v. Lawson , 354 F.3d 315, 319 (4 th Cir. 2004) (“state must provide children with ‘meaningful access’ to public education”); Alex R.. v. Forrestville Valley Community Unit School Dist. # 221, 375 F.3d 603, 612 (7 th Cir. 2004) (question presented is whether the school district appropriately addressed the student’s needs and provided him with a meaningful educational benefit), cert. denied , 543 U.S. 1009 (2004)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); L.E. v. Ramsey Bd. of Educ ., 435 F.3d 384, 395 (3d Cir. 2006), citing T.R. ex rel. N.R. v. Kingwood Twp. Bd. of Educ ., 205 F.3d 572, 577 (3d Cir. 2000) (phrase “some educational benefit”, as utilized by Supreme Court in Rowley , requires provision of a “meaningful educational benefit”); Adams v. Oregon , 195 F.3d 1141, 1145 (9 th Cir. 1999); Town of Burlington v. Dep’t of Educ ., 736 F.2d 773, 789 (1st Cir. 1984) (“federal basic floor of meaningful, beneficial educational opportunity”), aff’d 471 U.S. 359 (1985); Hunt v. Bureau of Special Education Appeals , 109 LRP 55771, CA No. 08-10790-RGS (D.Mass. 2009) (“ School districts provide a FAPE by designing and implementing an IEP ‘reasonably calculated’ to insure that the child receives meaningful ‘educational benefits’ consistent with the child’s learning potential” citing Rowley ).

21

20 USC 1401(9)(b); Winkelman v. Parma City School Dist., 127 S.Ct. 1994, 2000-2001 (2007) (“education must … meet the standards of the State educational agency); Mr. I. v. Maine School Administrative District No. 55, 480 F.3d 1 , 11 (1 st Cir. 2007) (state may “ calibrate its own educational standards, provided it does not set them below the minimum level prescribed by the [IDEA]”); Town of Burlington v. Department of Education , 736 F.2d 773, 792 (1 st Cir. 1984) (states are “free to exceed, both substantively and procedurally, the protection and services to be provided to its disabled children”).

22

20 USC 1400(d)(4) (purposes of this title are . . . to assess, and ensure the effectiveness of , efforts to educate children with disabilities” (emphasis added); 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”). See also North Reading School Committee v. Bureau of Special Education Appeals, 480 F.Supp.2d 479, 489 (D.Mass. 2007 ) (educational program “must be reasonably calculated to provide effective results and demonstrable improvement in the various educational and personal skills identified as special needs”), quoting Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1090 (1 st Cir. 1993) and Town of Burlington v. Dep’t of Educ., 736 F.2d 773, 788 (1 st Cir. 1984), aff’d 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985). Similarly, Sutton’s proposed IEPs for Student are framed in terms of his receiving specially designed instruction and accommodations “necessary for the student to make effective progress.” Exhibits S-8, S-13 (pages 4, 6).

23

MGL c. 71B, s. 1 ( term “special education” defined to mean “educational programs and assignments including, special classes and programs or services designed to develop the educational potential of children with disabilities.”); 603 CMR 28.01(3) ( purpose of regulations as “to ensure that eligible Massachusetts students receive special education services designed to develop the student’s individual educational potential.”).

24

Rowley , 458 U.S. at 202. See also Lessard v. Wilton Lyndeborough Cooperative School Dist. , 2008 WL 484042 (1 st Cir. 2008) (“levels of progress must be judged with respect to the potential of the particular child. So here: while the reported progress is modest by most standards, it is reasonable in the context of Stephanie’s manifold disabilities and low IQ”); Beth R. v. Forrestville Valley Comm. Unit Sch. Dist. No. 221, 375 F.3d 603, 615 (7 th Cir. 2004) (“ requisite degree of reasonable, likely progress varies, depending on the student’s abilities” ), cert. denied , 125 S. Ct. 628 (2004); 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.); Alex R. ex rel. Beth R. v. Forrestville Valley Cmty. Unit Sch. Dist. No. 221, 375 F.3d 603, 615 (7th Cir. 2004)“) ( “requisite degree of reasonable, likely progress varies, depending on the student’s abilities.”); 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”); 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”) ; Hunt v. Bureau of Special Education Appeals , 109 LRP 55771, CA No. 08-10790-RGS (D.Mass. 2009) (“ School districts provide a FAPE by designing and implementing an IEP ‘reasonably calculated’ to insure that the child receives meaningful ‘educational benefits’ consistent with the child’s learning potential” citing Rowley ).

25

Roland M. v. Concord Sch. Comm., 910 F.2d 983, 992 (1st Cir. 1990) (internal quotations omitted).

26

Id .

27

Id . See also Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1086 (1st Cir.1993).

28

Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 383 (2 nd Cir. 2003 ) (grades and test scores may qualify as objective evidence to evaluate the adequacy of an IEP that has purportedly failed to address a prior IEP’s alleged shortcomings); Roland M., 910 F.2d at 991 (“actual educational results are relevant to determining the efficacy of educators’ policy choices”); Susan N. v. Wilson Sch. Dist ., 70 F.3d 751, 762 (3 rd Cir. 1995) (“Such [after-acquired] evidence may be considered only with respect to the reasonableness of the district’s decision at the time it was made.”). See also Town of Burlington v. Department of Educ. for Com. of Mass . , 736 F.2d 773, 790 (1 st Cir. 1984), aff’d 471 U.S. 359 (1985) (“additional evidence” submitted subsequent to the close of the administrative hearing may include expert testimony for the purpose of “ bringing the court up to date on the child’s progress from the time of the hearing to the trial”).

29

In the instant dispute, both parties submitted into evidence and sought to rely upon evaluation reports prepared after the most recent IEP was prepared. See exhibits P-120, S-26.

30

20 USCS § 1415(f)(3)(E)(2)(ii).

31

Schaffer v. Weast , 546 U.S. 49, 62 (2005) (burden of persuasion in an administrative hearing challenging an IEP is placed upon the party seeking relief).

32

In Re Sutton , 13 MSER at 110.

33

The IDEA statute of limitations reads as follows:
(C) Timeline for requesting hearing. A parent or agency shall request an impartial due process hearing within 2 years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint, or, if the State has an explicit time limitation for requesting such a hearing under this part, in such time as the State law allows. (D) Exceptions to the timeline. The timeline described in subparagraph (C) shall not apply to a parent if the parent was prevented from requesting the hearing due to– (i) specific misrepresentations by the local educational agency that it had resolved the problem forming the basis of the complaint; or (ii) the local educational agency’s withholding of information from the parent that was required under this part to be provided to the parent.

20 USC § 1415(f)(3). This statute of limitations was included, for the first time, within the IDEA as part of the 2004 amendments that became effective on July 1, 2005.

34

See, e.g., Burlington v. Department of Education for the Commonwealth of Massachusetts , 736 F2d 773, 798 (1 st Cir. 1984) (noting the significant harm that may result from delay of appropriate special education services).

35

See Goldman v. Civil Service Com’n , 1 Mass.L.Rptr. 403, 2006 WL 2623936 ( Mass.Super. 2006) (“ plain meaning of ‘immediately’ does not connote more than one month”).

36

34 CFR 300.116 (emphasis supplied).

37

Federal Register vol. 71, no. 156, p. 46588 (August 14, 2006) (emphasis supplied).

38

See 603 CMR 28.05(6); 603 CMR 28.06(2); 603 CMR 28.06(2)(d); In Re: Boston , BSEA # 04-2506, 10 MSER 311 (MA SEA 2004) (discussing the regulations, regulatory history, and state advisory relative to placement decisions by the IEP Team); Administrative Advisory SPED 2001-5: Updating of IEP Process Guide and IEP Form and Notices , dated June 11, 2001, found at: http://www.doe.mass.edu/sped/advisories/01_5.html

39

603 CMR 28.05(6).

40

603 CMR 28.06(2)(f)2 (emphasis supplied).

41

The Administrative Advisory may be found at: http://www.doe.mass.edu/sped/advisories/01_5.html

42

Ms. Ronstadt testified that in her opinion, 1:1 instruction has been the appropriate method of education for Student because he needs the intensive instruction provided within a 1:1 teaching model, because 1:1 teaching minimizes outside distractions, and because 1:1 teaching permits tailoring the instruction to Student’s unique educational needs. Ms. Iadarola testified that she would recommend that the occupational therapy services for Student be provided on a 1:1 basis because of the complexity of his needs. Dr. Bakow testified that Student’s anxiety disorder limits his learning ability. For Student to learn, the learning must occur within an environment that is predictable and safe. Dr. Bakow has written that Student benefits from a “1:1 format.” Dr. Bakow testified that 1:1 instruction is useful for Student because Student is easily distracted and loses focus. Testimony of Ronstadt, Iadarola, Bakow; exhibit S-54.

43

Sutton’s failure to adequately consider the appropriateness of Cotting as a place where Student’s IEP could be implemented, would likely not have occurred if Sutton had complied with the following federal special education regulations regarding a private school placement by a school district:
(a) Developing IEPs .

(1) Before a public agency places a child with a disability in, or refers a child to, a private school or facility, the agency must initiate and conduct a meeting to develop an IEP for the child in accordance with §§300.320 and 300.324.

(2) The agency must ensure that a representative of the private school or facility attends the meeting . If the representative cannot attend, the agency must use other methods to ensure participation by the private school or facility, including individual or conference telephone calls.

34 CFR §300.325 (emphasis supplied).

44

A.K. ex rel. J.K. v. Alexandria City School Bd . , 484 F.3d 672, 681 (4 th Cir. 2007) .

45

20 USC 1415(b)(6)(A) (IDEA language defining a hearing officer’s jurisdiction to include a “complaint … with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child “).

46

Ms. Carley has delivered all of Student’s occupational therapy services since January 2009. Previously, Student was provided occupational therapy at her agency (Project CHILLD) by occupational therapists under Ms. Carley’s supervision and, occasionally, by Ms. Carley herself. Ms. Carley also testified that she has worked with hundreds of children with motor dyspraxia and this is an area of specialty for her. She testified credibly. Testimony of Carley.

47

Bd. of Educ. v. Rowley, 458 U.S. 176, 181 (1982).

48

As one court has explained:

If the IEP fails to assess the “child’s present levels of academic achievement and functional performance,” the IEP does not comply with § 1414 [of the IDEA]. This deficiency goes to the heart of the IEP; the child’s level of academic achievement and functional performance is the foundation on which the IEP must be built. Without a clear identification of Robert’s present levels, the IEP cannot set measurable goals, evaluate the child’s progress, and determine which educational and related services are needed.

Kirby v. Cabell County Bd. of Educ . , 2006 WL 2691435 ( S.D.W.Va. 2006).

49

See 20 U.S.C. § 1414(a)(2) (requiring a comprehensive three-year re-evaluation of Student); 20 U.S.C. § 1414(b)(3)(B) (evaluations to be done “in all areas of suspected disability” ).

50

See 20 U.S.C. § 1414 (c) (1)(B) (“ on the basis of that review, and input from the child’s parents, identify what additional data, if any, are needed …”).

51

In addition, the proposed IEP does not address Student’s emotional difficulties that were described by Dr. Bakow. However, Parents have not taken the position that the IEP should include services relevant to this concern, perhaps because Dr. Bakow’s psychotherapy is sufficient for this purpose and because Parents have not sought reimbursement for Dr. Bakow’s services.

52

Transcript re hearing day September 23, 2009, pages 204, 205.

53

20 USCS § 1415(f)(3)(E)(2)(ii).

54

20 USC § 1414 (d)(1)(B).

55

34 CFR § 300.321.

56

M.L. v. Federal Way School Dist., 394 F.3d 634, 646 (9 th Cir. 2005).

57

20 USCS § 1415(f)(3)(E)(2)(ii).

58

Parents raise several other objections to the composition of the IEP Team during the October 2007 meeting. I briefly address each contention. First, Parents note that the IEP Team discussed a neuropsychological evaluation completed by Dr. Chaskelson in January 2006 and argue that the IEP Team was not properly constituted for this purpose since the Team did not include an “individual who can interpret the instructional implications of evaluation results” of the neuropsychological evaluation. 20 USC § 1414 (d)(1)(B); 34 CFR § 300.321. As discussed within my earlier Decision ( In Re: Neville v. Sutton Public Schools , BSEA # 07-7534, 14 MSER 182 (SEA MA 2008)), this evaluation was formally reviewed and considered by the IEP Team during an IEP Team meeting on May 25, 2006, and Parents did not take the position in that dispute that the IEP Team failed to include an appropriate person to interpret the evaluation. Sutton was not obligated to include an “individual who can interpret the instructional implications of evaluation results” each time this neuropsychological evaluation was informally discussed or referenced at a subsequent IEP Team meeting. Second, Parents object that there was no physical therapist or physical education teacher present at the IEP Team meeting. However, there is no statutory or regulatory requirement that either such person attend the Team meeting.

59

See R.B. v. Napa Valley Unified School Dist . 496 F.3d 932 (9 th Cir. 2007) (interpreting statute and regulation as requiring the attendance of a special education teacher “of such child”); OSEP Notice of Interpretation , 34 C.F.R. Pt. 300 App. A – Question 23 (“[t]he requirements of [the regulation] can be met by either: (1) a special education teacher of the child; or (2) another special education provider of the child”).

60

20 U.S.C. § 1415(b)(1). See also 34 C.F.R. § 300.501(c)(1) (“Each public agency must ensure that a parent of each child with a disability is a member of any group that makes decisions on the educational placement of the parent’s child.”)

61

Sch. Comm. of Burlington v. Dep’t of Educ. of Mass., 471 U.S. 359, 368 (1985).

62

Schaffer v. Weast , 546 U.S. 49, 53 (2005).

63

M.L. v. Federal Way Sch. Dist ., 394 F.3d 634, 645 (9th Cir. 2005) (“procedural inadequacies that . . . seriously infringe on the parents’ opportunity to participate in the IEP formulation process, clearly result in the denial of a FAPE.”); Kings Local School Dist., Bd. of Educ. v. Zelazny, 325 F.3d 724, 732 (6th Cir.2003) (a serious infringement on a parent’s opportunity to participate in the formulation of his or her child’s IEP is actionable because it causes “substantive harm … and thus constitute[s] a denial of the child’s right to a FAPE”); Roland M. v. Concord Sch. Comm., 910 F.2d 983, 994-95 (1st Cir. 1990) (“When parents raise procedural claims, their injuries are likewise based on harm to their child; they cannot recover unless there is some rational basis to believe that procedural inadequacies compromised the pupil’s right to an appropriate education, seriously hampered the parents’ opportunity to participate in the formulation process , or caused a deprivation of educational benefits [emphasis added; internal quotations omitted].”).

64

See, e.g., Amanda J. v. Clark Cty. Sch. Dist , 267 F.3d 877, 891, 892 (9 th Cir. 2001): “Not only will parents fight for what is in their child’s best interests, but because they observe their children in a multitude of different situations, they have a unique perspective of their child’s special needs. . . . Procedural violations that interfere with parental participation in the IEP formulation process undermine the very essence of the IDEA. An IEP which addresses the unique needs of the child cannot be developed if those people who are most familiar with the child’s needs are not involved or fully informed.” In the instant dispute, Parents’ involvement with and knowledge of Student easily fall within this Court’s description of parents in the Amanda J. dispute.

65

D.B. v. Sutton , CA No. 07-cv-40191-FDS, at n. 8 (D.Mass. 2009).

66

20 USC 1412 (a)(10)(C)(ii); Florence County Sch. Dist. Four v. Carter , 510 U.S. 7, 11-13 (1993); Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 370, 373-74 (1985); Diaz-Fonseca v. Puerto Rico , 451 F.3d 13, 31 (1 st Cir. 2006).

67

Florence County Sch. Dist. Four v. Carter , 510 U.S. 7, 13-14 (1993).

68

Id. at 12-13.

69

Id . at 11.

70

Mr. I. v. Maine School Administrative District No. 55 , 480 F.3d 1, 19, 20 (1 st Cir. 2007) (internal quotations and citations omitted; emphasis in original).

71

E.g., Florence County School District Four v. Carter , 510 U.S. 7, 16 (1993); School Union No. 37 v. Ms. C. 518 F.3d 31, 34 (1 st Cir. 2008) (“Reimbursement is an equitable remedy”); Diaz-Fonseca v. Commonwealth of Puerto Rico , 451 F.3d 13 (1 st Cir. 2006); Roland M. v. Concord Sch. Comm., 910 F.2d 983, 999 (1st Cir. 1990); School Committee of Burlington v. Department of Education of Mass., 471 U.S. 359, 374 (1985); Rafferty v. Cranston Pub. Sch. Committee , 315 F.3d 21 (1st Cir. 2002), Roland M. v. Concord Sch. Comm. , 910 F.2d 983, 999 (1st Cir. 1990).

72

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).

73

Additional services arranged for by Parents, but for which Parents do not seek reimbursement, are speech-language services, vision therapy, physical therapy, and psychotherapy. The full cost of these services during the IEP period from October 2007 to October 2008 was covered by Parents’ insurance.

74

I note that Parents are not seeking payment for the full cost of OT services, but rather for their actual out-of-pocket expenses which are the co-pays for traditional OT, and all of costs of the dynamic listening services.

75

20 USC 1412 (a)(10)(C)(iii).

76

Greenland School District v. Amy N. , 358 F.3d 150, 160 (1 st Cir. 2004) (citations omitted).

77

See Forest Grove Sch. Dist. v. T.A ., 2009 WL 1738644, *9 (2009).

78

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).

79

Roland M. v. Concord Sch. Comm., 910 F.2d 983, 994-95 (1 st Cir. 1990).