COMMONWEALTH OF MASSACHUSETTS
Division of Administrative Law Appeals
Bureau of Special Education Appeals
In Re: Uxbridge Public Schools
BSEA # 11-1115
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 21, 2010 in Malden, MA, and on September 22 and October 13, 2010 in Worcester, MA, before William Crane, Hearing Officer. Those present for all or part of the proceedings were:
Student’s Mother
Student’s Father
Kelley Henry Neuropsychologist, Integrated Center for Child Development
Sarah Quinn Speech-language Pathologist, ICCD
Joan DiPierro Dubeau Occupational Therapist, Uxbridge Public Schools
Sharon Manz Reading Teacher, Uxbridge Public Schools
Kathleen Mercure Pre-School Teacher, Uxbridge Public Schools
Brian Carter Kindergarten Teacher, Uxbridge Public Schools
Patricia Stankevitz 1 st Grade Teacher, Uxbridge Public Schools
Holly Earl Lead Teacher and Team Chair, Uxbridge Public Schools
Elizabeth Brennan BCBA, Uxbridge Public Schools
Margaret Fairbanks Speech-language Pathologist, Uxbridge Public Schools
Amy Muehlberger Behavioral Consultant, Beacon Services
Carla Mason Director of Pupil Personnel Services, Uxbridge Public Schools
Wayne DeMello Attorney for Parents and Student
Joanne Beswick Observer with Parents’ attorney
James Baron Observer with Parents’ attorney
Tim Norris Attorney for Uxbridge Public Schools
Melissa Murray Attorney for Uxbridge Public Schools
Laurie Jordan Court Stenographer
The official record of the hearing consists of documents submitted by the Parents and marked as exhibits P-1 through P-22, and P-24; documents submitted by the Uxbridge Public Schools (Uxbridge) and marked as exhibits S-1 through S-62; and approximately three days of recorded oral testimony and argument. As agreed by the parties, written closing arguments were due and received on October 22, 2010, and the record closed on that date.
I. ISSUES
The issues to be decided in this case are the following:
Eligibility and services under the IDEA
1. Is Student eligible to receive special education and related services?
2. If so, what special education and related services must be provided to Student?
Eligibility and services under Section 504
3. If Student is not eligible under the IDEA, is Student eligible under Section 504 of the Rehabilitation Act?
4. If so, what services or accommodations must be provided to Student?
Compensatory services
5. Is Student entitled to compensatory education services?
6. If so, what compensatory services are due?
Charges for copying Student’s record
7. Does a BSEA Hearing Officer have jurisdiction to consider the question of whether the charges for copying Student’s records was appropriate?
8. If so, were the charges appropriate?
II. FACTS
A. Student’s Profile and Current Services
1. Student resides with his Parents and three siblings in Uxbridge, MA. He is six years old and recently began 1 st grade within an inclusion classroom at Uxbridge’s Taft Elementary School. Testimony of Mother, Stankevitz.
2. Student is a friendly, outgoing, and energetic child. He has good cognitive ability, testing in the average to high average range. He also has good early academic skills. His expressive and receptive communication skills are in the average range overall, with some specific areas of weakness including the ability to follow complex directions and ability to answer open-ended questions. He also has weaknesses in narrative production, word retrieval, language pragmatics and social skills. However, the extent and implications of these weaknesses are in dispute. Student has been diagnosed with Pervasive Developmental Delay, Not Otherwise Specified (PDD, NOS). Testimony of Mother, Father, Henry, Quinn, Brennan, Fairbanks; exhibits P-7, P-8, P-9, S-2, S-11, S-13, S-14.
3. In April 2009, Uxbridge determined Student to be no longer eligible to receive special education and related services and discontinued all special education and related services at the end of the 2008-2009 school year. Pursuant to my Ruling of September 1, 2010 granting Student stay put rights, Student’s special education and related services were reinstated, including participation in a social skills group, occupational therapy and speech-language services. Testimony of Mother, Earl; exhibits P-6, P-19, P-20.
B. Educational History
4. Student received Early Intervention services prior to turning three years old. Testimony of Mother.
5. Subsequent to his third birthday, Uxbridge evaluated Student. As a result of an October 24, 2007 evaluation, Uxbridge’s occupational therapist (Joan DiPierro Dubeau) recommended that Student receive direct occupational therapy services. Testimony of Dubeau; exhibits P-12, S-8.
6. In addition, Uxbridge’s speech-language therapist (Sharon Ross) evaluated Student on October 7, 2007. Ms. Ross evaluated Student using the Peabody Picture Vocabulary Test III, Expressive One Word Picture Vocabulary Test, and the Clinical Evaluation of Language Fundamentals – Primary. She found that Student had many isolated language skills in the average range, but also commented on Student’s “decreased attention to and interaction with peers and a lack of social awareness and self regulation.” She also noted Student’s “noncontextual verbalizations, … ‘scripts’ from previous experiences, and a general lack of directing communication to others.” In her written report, Ms. Ross recommended that Student receive direct speech-language services and that additional consultation speech-language services be provided to Student’s teachers and Parents. Exhibit S-9.
7. On the basis of these evaluations, Uxbridge determined Student to be eligible to receive special education and related services. Pursuant to a fully-accepted IEP for the period from 3/13/08 to 10/29/08, Student received social skills instruction, occupational therapy and speech-language services. Testimony of Mother, Earl; exhibits P-2, S-26.
8. This IEP included a social goal, with the following three benchmarks/objectives:
i. Respond to his name when called by a teacher or peer with eye contact in 80% of measured opportunities.
ii. Gain the attention of his peers prior to initiating interaction with them in 80% of measured opportunities.
iii. Initiate play with another child without prompting in 80% of measured opportunities.
9. Beginning in September 2008, Uxbridge’s lead teacher/school social worker/Team chairperson (Holly Earl) began formally observing Student with respect to the above three benchmarks/objectives. On the basis of these observations, Ms. Earl concluded that Student had made progress regarding his social skills and was age-appropriate in this area. She also determined that Student had met each of the three IEP benchmarks/objectives. Testimony of Earl; exhibit S-39.
10. At an October 2008 IEP Team meeting, the school-based members of the Team determined that Student had met his IEP social goal benchmarks/objectives, that he no longer required a social goal on his IEP or special education services in this area, and that his speech-language services should be reduced. Uxbridge proposed an IEP for the period from 10/21/08 to 10/20/09 that reflected these changes in services. Parents partially accepted and partially rejected this IEP, essentially objecting to the proposed reduction of services. Testimony of Mother; exhibits P-1, S-23.
11. On October 28, 2008, November 3, 2008, and November 19, 2008, Amy Muehlberger, MEd, Board Certified Behavior Consultant (BCBA) of Behavioral Education, Assessment and Consultation, Inc. Beacon Services, observed and collected data regarding Student with respect to the above-quoted three benchmarks/objectives. Ms. Muehlberger was employed for this purpose as a consultant to Uxbridge. In her written report, dated November 19, 2008, she found that Student generally met each of the three benchmarks/objectives for his IEP social goal. Testimony of Muehlberger; exhibit S-40.
12. Ms. Earl, who had observed Student as referenced above, continued to formally observe him with respect to the above-noted three social benchmarks/objectives. In a statement dated May 2009, Ms. Earl wrote that Student had achieved the social goal in his IEP. Testimony of Earl; exhibits S-18, S-39.
13. In the spring of 2009, Uxbridge conducted a series of further evaluations to re-determine Student’s need for special education and related services. In late February and in March 2009, Uxbridge’s speech-language pathologist (Margaret Fairbanks) conducted a speech-language evaluation. On the basis of her evaluation, Ms. Fairbanks concluded that Student demonstrated high average to above average skills in receptive and expressive language, that he had made significant progress in language comprehension and verbal output since the previous speech-language evaluation in 2007, and that speech-language services were no longer warranted. Testimony of Fairbanks; exhibit S-5.
14. On March 20, 2009, Uxbridge’s occupational therapist (Ms. Dubeau) conducted another occupational therapy evaluation, concluding that Student no longer required direct occupational therapy services. Ms. Dubeau recommended weekly occupational therapy consultation to the classroom teacher. Testimony of Dubeau; exhibits P-11, S-4.
15. In April 2009, Uxbridge’s school psychologist (Janet Iannuccilli) conducted a psychological evaluation, recommending only that Parents be encouraged to seek family counseling to help address their son’s inappropriate behaviors at home. Exhibit S-3.
16. As part of her evaluation report, Ms. Iannuccilli wrote that Mother expressed “a great deal of concern” regarding Student’s behavior outside of school. Mother reported to Ms. Iannuccilli that Student likes other children and wants to be around them, but he cannot read social cues, has a “strange affect” and says “unusual things”. Mother also reported to Ms. Iannuccilli that Student is physically aggressive towards Parents at times. Exhibit S-3.
17. Uxbridge retained Ms. Muehlberger again, this time to conduct a social skills assessment of Student through observations on April 6 and 8, 2009 and Parent interview on April 15, 2009. The assessment concluded that with respect to “important social developmental milestones …, [Student] demonstrates most of the skills within the 48-60 months range ….” Testimony of Muehlberger; exhibit S-2.
18. On April 28, 2009, after reviewing the above-referenced evaluation reports, Student’s IEP Team determined that Student was no longer eligible to receive special education and related services. By letter of May 13, 2009, the Team chairperson wrote Parents, noting the Team’s decision and explaining that Parents would have 30 days from the date of the Team decision to respond to its determination that Student is no longer eligible and that Uxbridge would continue providing services for 30 days past the April 28 th Team meeting date. Testimony of Mother; exhibits P-3, S-19, S-20.
19. By letter of May 26, 2009 (which was apparently received by Uxbridge on May 28, 2009), Father responded to the Team chairperson’s letter, explaining that he was disputing the finding of no eligibility. Uxbridge wrote Parents that it would discontinue all special education and related services on or about May 28, 2009, but in fact Uxbridge continued Student’s special education and related services through the end of the 2008-2009 school year. Testimony of Mother, Dubeau, Fairbanks; exhibit P-4.
20. Parents sought mediation to resolve their eligibility dispute, but Uxbridge declined to enter into mediation, apparently believing that there would be no reason for it to reconsider its eligibility decision. Testimony of Mother; exhibit P-6.
21. Student’s pre-school teacher (Kathleen Mercure) testified that during the 2008-2009 school year, Student was socially appropriate, with social skills (including eye contact and asking for assistance) in the average range; he did not demonstrate any abnormal behavior that affected his classroom functioning. She noted that during the beginning of the year, his voice was loud, but this resolved itself over the course of the school year. She testified that social skill instruction is an important part of the pre-school curriculum and that Student made effective progress in this area. Testimony of Mercure; exhibits S-18, S-37, S-50, S-51, S-52, S-60.
22. Parents arranged for an independent neuropsychological evaluation, which was conducted on July 22, 2009 by Kelley Henry, PhD, Staff Clinician, Pediatric Neuropsychology, Integrated Center for Child Development (ICCD). This evaluation confirmed Student’s PDD, NOS diagnosis and recommended that he receive special education and related services to address his weaknesses in socialization, communication, and behavior. Recommended services included a behaviorally-trained classroom aide, direct instruction to target social skills and pragmatic language deficits, speech-language services and occupational therapy. Testimony of Mother, Henry; exhibits P-7, S-11.
23. As part of the neuropsychological evaluation, Parents reported to Dr. Henry Student’s substantial difficulty with pragmatic skills, and interacting with siblings and peers. Testimony of Henry; exhibits P-7, S-11.
24. In September 2009, Uxbridge convened a meeting to consider Dr. Henry’s evaluation and determine whether Student should be determined eligible for special education or related services. Uxbridge determined that although Student had a qualifying disability, he was making effective progress in school without the need for special education or related services, and was therefore not eligible for special education or related services. Testimony of Mason, Mother; exhibit S-17.
25. During the 2009-2010 school year, Student attended a half-day kindergarten class of 17 children, staffed by a teacher and aide. Because of its determination in May 2009 that Student was no longer eligible to receive special education or related services, Uxbridge provided no special education or related services to Student during 2009-2010 school year. Testimony of Mother, Carter.
26. Parents arranged for an independent occupational therapy evaluation, which was conducted on October 2, 2009 by Lisa van Gorder, OTL, Occupational Therapist Registered/Licensed, Certified Early Intervention Specialist, Integrated Center for Child Development. The evaluation found that Student had “significant difficulties with motor planning, coordination, postural stability, and visual perceptual/motor skills.” The evaluation did not make an explicit recommendation regarding occupational therapy services but stated that Student would “benefit from treatment from a skilled occupational therapist and an on going home program.” Testimony of Mother; exhibits P-10, S-12.
27. On December 2, 2009, Uxbridge convened a meeting to consider Ms. Gorder’s occupational therapy evaluation and determine whether Student should be determined eligible for special education or related services. Uxbridge determined that although Student had a qualifying disability, he was making effective progress in school without special education or related services and was therefore not eligible for special education or related services. Testimony of Mason, Mason; exhibit S-16.
28. In October 2009, Parents initiated private occupational therapy services for their son. These continued into the spring of 2010. Testimony of Mother.
29. During the winter of 2009-2010, Parents engaged an advocate (Stephanie LeBlanc) who began representing them in early February 2010. By letter of May 21, 2010, Ms. LeBlanc wrote Uxbridge taking the position that Student was entitled to stay put services as a result of the dispute between the parties regarding his eligibility for special education services. By letter of May 27, 2010, Uxbridge’s then Director of Pupil Personnel Services (Paul Haughey, EdD) replied to Ms. LeBlanc, taking the position that Parents’ failure to request a hearing before the BSEA or other “due process” resulted in Parents’ foregoing any stay put rights. Testimony of Mother; exhibits P-5, P-6.
30. Parents arranged for an observation by their neuropsychologist, Dr. Henry, which occurred on May 26, 2010, and which was co-observed by Ms. Mason and Ms. Earl. Dr. Henry’s written observation report found that Student continued to meet the diagnostic criteria for PDD, NOS, and that he required special education supports to address his social and interpersonal deficits. Testimony of Mother, Henry; exhibits P-8, S-13, S-30.
31. On June 21, 2010, Uxbridge convened a meeting with Parents to consider Dr. Henry’s observation report. After consideration of the report, Uxbridge re-affirmed its decision that Student was not eligible to receive special education or related services because Uxbridge believed that although Student had a qualifying disability, he continued to make effective progress in school without special education or related services. Testimony of Mother, Mason; exhibit S-15.
32. Student’s kindergarten teacher (Mr. Carter) testified that during the 2009-2010 school year, Student made appropriate eye contact with others, he occasionally made a statement “into the air” to no one in particular (but not in a way that concerned Mr. Carter; other children in the classroom did the same thing), he had several friends in the classroom with whom he interacted socially, he liked to follow rules but was not a rigid thinker, he was adaptable to changes in routine and to transitions, he often referenced his peers (i.e., he observed his peers for purposes of learning what they were doing, and then was able to self-correct on the basis of learning what his peers were doing), he displayed concern about a girl who was absent, he had conversations with friends, he understood cause and effect, he responded to cues, he never appeared to be “bossy”, and his occasionally disruptive behavior was not substantially different than that of other children in the classroom. Mr. Carter stated that he did not notice deficits in Student’s language pragmatics. Mr. Carter further testified that instruction in social skills was part of his curriculum, and Student made progress academically and socially. He opined that Student did not require specialized instruction to access the curriculum. Testimony of Carter; exhibits S-43, S-45.
33. Student’s reading teacher (Sharon Manz) testified that during the 2009-2010 school year, she provided reading services to Student every other week, for 15 minutes three times during the week. She stated that Student began the year at grade level in reading, and as the year progressed, he advanced to above grade level. She further testified that over the course of the school year, Student appeared to be just like any other child in the classroom with respect to his social abilities and behaviors. She also stated that Student raised his hand appropriately, he did not speak out of turn, he seemed interested in others, and he appeared to work well within a group of other children. She noted that she did not notice any comments “into the air”, any fears or anxieties, or anything else out of the ordinary. Testimony of Manz; exhibit S-46.
34. Parents arranged for an independent speech-language evaluation, which was conducted on July 28, 2010 by Sarah Quinn, MS, CCC-SLP, Speech Language Pathologist, ICCD. The evaluation found that Student had difficulties with word retrieval and narrative production, as well as deficits in the areas of social skills and language pragmatics. The evaluation recommended direct speech-language therapy and specialized instruction in the areas of language pragmatics and social skills. Testimony of Mother, Quinn; exhibits P-9, S-14.
35. On August 6, 2010, Parents filed a hearing request with the BSEA, together with a motion for stay put. The stay put motion sought an order requiring Uxbridge to provide services and placement immediately pursuant to Student’s stay put protections. By Ruling dated September 1, 2010, I allowed Parents’ stay put motion, and as a result, some (although not all) of Student’s stay put services commenced on September 2, 2010—Student’s participation in a social skills group was one such service that did not commence on September 2 nd . Testimony of Stankevitz.
36. For the 2010-2011 school year, Student is attending 1 st grade. There are 16 children and one teacher (Ms. Stankevitz) in the classroom, and there is always a second adult in the classroom. Testimony of Stankevitz.
37. Ms. Stankevitz testified that in 1 st grade, the children need to be taught many social skills. She explained that she observes the social behaviors of her children and noted that the children in her classroom have a wide range of social skills. Ms. Stankevitz testified that Student is sharing well with others, he needs reminding to make eye contact (but is no different in this regard than the other children in the room), he shows empathy for other children, he waits his turn during recess, he engages appropriately in conversations with others, and he references other children in the room. In sum, she testified that she has not observed anything different about Student’s his social skills, as compared to other 1 st grade children. Testimony of Stankevitz.
38. Ms. Stankevitz further testified that Student is developing appropriately along with his peers, and is able to progress without special education or related services. She further opined that the weekly social skills group to which Student has been assigned as part of his stay put services, will be a “waste” of his time since it will take him away from children who have appropriate social skills and place him with children who do not have appropriate social skills. Testimony of Stankevitz.
39. Both Parents testified, using examples, that at home and in the community, Student sometimes argues over limit-setting, has become non-compliant at times (becoming loud and upset), and occasionally is aggressive. Parents further testified that their son sometimes becomes inappropriately “bossy” with other children—for example, trying to enforce on other children a rule that an adult has established—and acts inappropriately in social situations. Testimony of Mother, Father.
C. Testimony and Reports of Experts who Assessed or Observed Student
40. Evaluation and observation by Kelley Henry, PsyD . Parents’ independent neuropsychological evaluation was conducted on June 30 and July 2, 2009 by Dr. Henry. Dr. Henry is a developmental neuropsychologist with approximately two years of experience conducting neuropsychological, neurodevelopmental and multi-disciplinary evaluations for children at the Integrated Center for Child Development in Canton, MA, where approximately 60% to 75% of her caseload is children on the autism spectrum between the ages of three and seven. She had a previous, additional year as a post-doctoral fellow conducting neuropsychological evaluations of children for an additional year. Dr. Henry received her doctorate degree in clinical psychology in June 2006 and is a licensed psychologist. She has completed about 90 to 100 neuropsychological evaluations per year since June 2006. Testimony of Henry; exhibits P-8, P-24, S-13.
41. Dr. Henry conducted her neuropsychological evaluation of Student in June and July 2009, and then a separate school observation on May 26, 2010. She testified that in conducting the neuropsychological evaluation, she relied upon standardized testing, clinical observation of Student, a structured interview with Parents, and a review of Student’s history and records, including the Uxbridge evaluations. Dr. Henry did not receive any information in writing or orally from anyone from Uxbridge principally because her evaluation occurred during the summer when Uxbridge staff was not readily available. Testimony of Henry; exhibits P-7, P-8, S-11, S-13.
42. Dr. Henry testified that her cognitive testing of Student indicated that he is a bright child, performing in the average to high average range on standardized testing. He also has strong academic readiness skills, performing very well in early math and early reading testing. When she tested Student’s receptive language skills, she found that he had difficulty following complex instruction but overall, he fell within the average range. Testimony of Henry; exhibits P-7, S-11.
43. Dr. Henry testified that Student had somewhat more difficulty regarding expressive language skills, particularly with affective verbal formulation, falling at the lower end of the average range. Her testing showed that Student’s vocabulary is quite strong, he presented as a very verbal child and he did fairly well in his grammatical use of words. However, Student demonstrated difficulty with organizing and using language in a social situation. He responded very tangentially to questions—for example, when he was asked: why do we look both ways before crossing a street?, he responded “there is a red hand.” Dr. Henry testified that this was an example of his having difficulty coming up with appropriate language for his response even though he likely understood the correct answer. Testimony of Henry; exhibits P-7, S-11.
44. Dr. Henry further testified that Student was able to speak about an area of interest or something that came to mind, but often his responses were unrelated to the question asked or were off-topic, switching to a topic of his own interest. Her testing also showed that Student struggled in responding to open-ended and hypothetical questions (for example, “why” questions) and when asked to repeat a simple story, he struggled with organizing his thoughts and ideas, performing in the deficient range in this area. On the other hand, Dr. Henry’s testing found that when asked very structured, factual questions, Student was able to respond appropriately. Testimony of Henry; exhibits P-7, S-11.
45. Dr. Henry testified that she tested Student’s social perception skills, using a theory of mind subtest and an affect recognition subtest, each from the Developmental Neuropsychological Assessment – 2 nd Ed. Regarding the affect recognition test, Student’s subtest score fell below the 1% range, as compared to same-age peers, thus indicating a significant area of difficulty. Dr. Henry testified that affect recognition tests the ability to recognize facial expressions of other children. She concluded that Student’s score on this subtest shows he has difficulty reading the facial expression of others and difficulty matching the underlying emotion with the body language of a non-verbal cue. Similarly, she concluded that he struggled to respond appropriately to non-verbal cues. Testimony of Henry; exhibits P-7, S-11.
46. Dr. Henry testified that the theory of mind test looks at the ability to recognize the perspective of others, that is, to recognize that others have thoughts and views different than those of the child being tested. Student also did poorly in this area, with a subtest score falling below the 1% range, as compared to same-age peers. Dr. Henry testified that this indicates that Student has difficulty recognizing others’ emotions and perspectives. Testimony of Henry; exhibits P-7, S-11.
47. Dr. Henry testified that this subtest score, as well as the affect recognition subtest score, were particularly low when compared to what one would expect from someone with Student’s higher level cognitive abilities. In sum, Dr. Henry testified that Student’s scores on these two subtests highlighted a marked area of relative weakness for Student in his social perception skills, as compared to typical, same-age children. Testimony of Henry; exhibits P-7, S-11.
48. Dr. Henry testified that figurative language is the ability to understand idioms and idiosyncratic language. Her testing found that Student also struggles in this area. Student is very concrete—for example, if he hears the expression “hit the road”, he will think that this means to literally hit the road. Testimony of Henry; exhibits P-7, S-11.
49. In summary, her report noted: “Overall, [Student’s] abilities in these areas [of early social perception skills and taking others’ perspectives] as well as his capacity to accurately read social cues and interpret social situations, constitute an area of significant vulnerability for him.” Exhibit P-7 (page 10). Similarly, Dr. Henry testified that Student has higher language skills, but he nevertheless has substantial deficits in the pragmatic and social use of language. Testimony of Henry; exhibits P-7, S-11.
50. Dr. Henry also testified regarding Student’s behavior. She stated that Student has more behavioral difficulties in less structured, more open-ended situations in the community, as compared to more predictable, structured routines at school. She explained that he can be very rigid and respond with a more behavioral reaction when things do not go the way he expected or wanted. Testimony of Henry; exhibits P-7, S-11.
51. Dr. Henry testified that Student was diagnosed with PDD, NOS by Dr. McCarty at Franciscan Children’s Hospital. Dr. Henry stated that, in her opinion, Student continues to be diagnosed appropriately as having PDD, NOS because he meets the criteria, which are that he has difficulties in the following three areas: the communication domain, reciprocal interpersonal exchanges and social pragmatics, and atypical behaviors including perseveration. Testimony of Henry; exhibits P-7, S-11.
52. Approximately ten months after her neuropsychological evaluation in July 2009, Dr. Henry conducted an observation of Student for the entire kindergarten period of two and a half hours on May 26, 2010. Dr. Henry noticed that at the beginning of the day when children were coming into the room, a child next to Student made frequent attempts to gain his attention—instead, Student remained focused on what he was doing at this time and generally disregarded the social communications and occurrences nearby. Dr. Henry later observed that when there was a community reader in the classroom who was giving information and asking the children questions, Student did not routinely follow the rules—for example, he often spoke out of turn without being called upon. When he did answer a question, he was often off-topic in his answers. She found that he had reduced ability to wait and be called upon. Testimony of Henry; exhibits P-8, S-13.
53. In her written observation report, Dr. Henry concluded that Student “requires special education supports to directly support his social and interpersonal challenges.” Later in the report, she further explained: “Skills that require additional support include offering consistent eye contact, participating flexibility [sic] in conversational exchanges beyond two turns, remaining on topic in a conversation, waiting for responses from peers, refraining from talking out of turn, and raising his hand before speaking out. Other play and social skills need reinforcement including joining a game, flexibly participating in an activity with peers, decreasing his ‘bossy’ tendencies and increasing his flexibility and spontaneity.” Exhibits P-8, S-13.
54. Dr. Henry testified that when comparing her observations with her previous neuropsychological testing, she noted that her testing found Student to have weaknesses in the areas of language pragmatics and social skills, and that these same deficits were observed approximately ten months later within the classroom setting where he missed subtle social innuendos, and that he continued to have difficulty recognizing non-verbal cues, engaging in reciprocal and flexible conversations with peers, and staying on topic in conversations. This heightened her concerns that Student continued to have substantial deficits in these areas and that these deficits were not being addressed in a way that would allow him to make progress. Dr. Henry further noted that Sarah Quinn’s speech-language evaluation confirmed that Student shows continued difficulty and lack of progress in these areas. Testimony of Henry; exhibits P-7, P-8, S-11, S-13.
55. Dr. Henry testified that Student has strengths socially in that he is a socially-oriented child who demonstrates a desire to form social connections and makes attempts to participate in reciprocal experiences. Dr. Henry explained that on the surface, Student may appear to be doing okay in this area, but if one dissects the exchanges that were happening, it becomes clear that he is missing some of the more subtle aspects of socialization skills. In sum, his interaction skills remain undeveloped. He is not making the progress in these areas that he is making academically. Testimony of Henry; exhibits P-7, S-11.
56. Dr. Henry recommended that Student participate in a structured social skills group that follows a curriculum and that explicitly and directly teaches non-verbal social cues, pragmatic language, and interpersonal reciprocity for 30 to 45 minutes, once per week. Testimony of Henry; exhibits P-7, S-11.
57. She testified that if Student were not to receive the special education and related services that she has recommended to address his language pragmatic deficits, reading and responding to non-verbal cues will become more apparent areas of difficulty, and it will likely become more difficult for Student to manage more complex social structures. Testimony of Henry.
58. Dr. Henry also recommended direct speech-language services to work on areas of weakness including narration skills, formulation skills, and responding to open-ended questions. She also recommended in-class occupational therapy support, either through direct therapy or consultation. Testimony of Henry; exhibits P-7, S-11.
59. In her written observation report, Dr. Henry also noted that Student was holding his pencil with an “immature fisted three finger grip”. She concluded that Student would benefit from direct occupational therapy services. Exhibits P-8, S-13.
60. In her July 2009 neuropsychological report, Dr. Henry also recommended that a behavior specialist be part of Student’s IEP Team as a consultant, including a monthly (30 to 60 minutes) consultation to Parents, and that there be a behaviorally-trained aide in Student’s classroom to work with him on the spot to provide instant feedback regarding behavioral issues. However, during her observation in May 2010, she found that some of Student’s behavior difficulties, as identified within her neuropsychological evaluation had ameliorated, making less important some of her recommendations related to addressing Student’s behavior. Testimony of Henry; exhibits P-7, P-8, S-11, S-13.
61. Evaluation by Sarah Quinn, MS, CCC-SLP . Parents arranged for an independent speech-language evaluation, which was conducted on July 28, 2010 by Ms. Quinn. Ms. Quinn has been the director of the speech-language program at ICCD for the past 18 months and has been a speech-language pathologist since 1995. She received a master’s of science in speech-language pathology in 1995 and is licensed in Massachusetts. She generally performs 10 to 12 speech-language evaluations per month of children in the three to seven-year-old range. Testimony of Quinn; exhibits P-9, S-14.
62. For purposes of her evaluation, Ms. Quinn used clinical observation, structured play, interview of Parents, and formal testing using the Clinical Evaluation of Language Fundamentals-4 and the Comprehensive Assessment of Spoken Language (CASL). Ms. Quinn testified that, overall, Student demonstrated average to above average skills in many of the discrete areas of receptive and expressive language, including sentence formulation, verbal memory, semantic knowledge, and understanding of simple, paragraph-length stories. Testimony of Quinn; exhibits P-9, S-14.
63. Ms. Quinn testified that Student’s narrative production—that is, his ability to formulate simple stories or share personal narratives—was notably reduced, particularly in comparison to his cognitive skills and strengths in other language areas. Student had difficulty in formulating complete sentences that conveyed a sequence of events or connection of ideas for purposes of sharing information. Ms. Quinn testified that this skill is important because it is the way that children demonstrate knowledge and it is how children interact socially. She assessed his narrative production informally by re-telling a personal event or talking about his vacation. Testimony of Quinn; exhibits P-9, S-14.
64. Ms. Quinn testified that her assessment showed that Student has a strong vocabulary but it was difficult for him to find a word (or access it) in his storage in a timely fashion—this results in hesitancy of speech and his describing something rather than using a specific word. This skill area of word retrieval was below age expectation. Testimony of Quinn; exhibits P-9, S-14.
65. Ms. Quinn testified that Student’s sentence completion subtest was mildly below the average range. Testimony of Quinn; exhibits P-9, S-14.
66. Ms. Quinn testified that she tested Student regarding language pragmatics through the pragmatic judgment subtest on the CASL evaluation. She explained that this subtest uses pictures and verbal information to elicit responses to presented social situations to determine to what extent Student is able to appropriately respond to social situations. This was his one score that was moderately below the average range, with his score falling in the 4 th % as compared to his same-age peers. Ms. Quinn testified that this is an important skill for making progress in school since it speaks to his ability to recognize the more subtle aspects of communication for purpose of his ability to read a situation or setting and modulate his behavior appropriately or respond with appropriate tone of voice and the types of language and kind of language he should use in a particular situation. She explained that this skill also impacts his ability to understand what is being communicated. She noted that these difficulties are related to his PDD, NOS diagnosis. Testimony of Quinn; exhibits P-9, S-14.
67. Ms. Quinn testified that during her evaluation, Student participated in several “conversational volleys”. She explained that he would often initiate a topic of interest to him, but would not follow up to her questions or comments to allow the conversation to continue. He tended to interrupt, shift and terminate topics somewhat abruptly, and he did not generally respond to Ms. Quinn’s conversational bids. She explained that this weakness is notable but at his age, not a substantial concern. Testimony of Quinn; exhibits P-9, S-14.
68. Ms. Quinn testified that with appropriate instruction, Student would be expected to make progress in these areas of language deficits since he has already made progress regarding his language skills generally. Testimony of Quinn.
69. Ms. Quinn testified that she recommended speech-language services as necessary to close the gap between his pragmatic skills and his other, overall abilities. She explained that the skills he continues to struggle with, given his history, learning style and disability, are not likely to develop without direct instruction. She opined that if social skills and pragmatics were able to develop at a pace consistent with his overall profile, he would be acquiring these skills as a result of every-day interactions, and he is not. And, if he does not receive direct, special education instruction to address social skills and pragmatics, his skills would likely remain at this reduced level as compared to his peers. She testified that as the expectations increased, he would become more isolated from his peers socially, and by late elementary school where expected to work in a group format, he would likely have difficulty particularly where there is not teacher supervision. She further testified that Student would likely struggle with tasks involved in the social skills curriculum being taught in elementary school; acquisition of social skills is an important part of the curriculum; and he would likely struggle in less structured activities, such as gym. Testimony of Quinn; exhibits P-9, S-14.1
70. Ms. Quinn testified that she recommended direct social skills intervention within a social skills group, starting with other children with similar language and social needs and then as part of the curriculum, typical peers become involved in the process. This should be provided once per week for 30 to 45 minutes. Social skills instruction should be provided by a clinician or educational professional with advanced training in social skills development and intervention. Testimony of Quinn; exhibits P-9, S-14.
71. In addition, Ms. Quinn testified that she recommended direct speech-language services at least once per week for 45 minutes to address all of Student’s language deficits, including social skills and language pragmatics. Ms. Quinn testified that direct speech-language services may not be necessary if word retrieval and narrative production are addressed within the curriculum, but a speech-language pathologist should be involved within the classroom setting for this purpose or to consult to the teacher outside of the classroom through shared planning and collaboration time for at least a half an hour, once per week. Testimony of Quinn; exhibits P-9, S-14.
72. Ms. Quinn testified that there would likely be difficulties with reading and written language production if Student did not receive remediation through speech-language services to address his narrative production and word retrieval deficits. Testimony of Quinn; exhibits P-9, S-14.
73. Observations by Holly Earl, MA, MSW . Beginning with Student’s 2008-2009 school year and continuing until a few days before the hearing in this dispute, Ms. Earl has been formally and informally observing Student at school. Several of these observations were conducted as co-observations with Parents or their expert (Dr. Henry) when they observed at school, a number of additional observations were made specifically for the purpose of determining whether Student had met three objectives/benchmarks for the social goal on his IEP, and Ms. Earl informally observed Student at times when she was in his classroom for another purpose. Testimony of Earl; exhibits S-30, S-31, S-32, S-33, S-34, S-39.
74. In general, Ms. Earl testified that on the basis of her observations, she believes that Student has made substantial progress with respect to his social skills deficits and that his previous social skills deficits have been ameliorated. Ms. Earl explained that she observed nothing that would indicate that Student currently has any social or pragmatic difficulties or that he currently is need of any specialized services in this area. She further testified that for purposes of eligibility under Section 504, Student’s PDD, NOS disability does not negatively impact him with respect to a major life activity. In sum, she opined that Student does not currently meet eligibility standards under special education laws or under Section 504. Testimony of Earl.
75. Ms. Earl’s observations are further discussed within the Educational History section of this Decision, above, in part II B.
76. Evaluation and observations by Amy Muehlberger, MEd, BCBA . On October 28, 2008, November 3, 2008, and November 19, 2008, Ms. Muehlberger observed and collected data regarding Student with respect to his achieving the three benchmarks/objectives on the social goal in his IEP. Ms. Muehlberger found that Student generally met each of the three benchmarks/objectives. Testimony of Muehlberger; exhibit S-40.
77. In addition, in April 2009, Ms. Muehlberger conducted a social skills assessment of Student, using the Assessment of Social and Communication Skills for Children with Autism. Pursuant to this assessment tool, she collected information through observation of Student, interviews of teachers and aides (to determine if what she was observing was a typical class), and Parent interview. The assessment observations occurred on April 6 and 8, 2009, and the Parent interview occurred on April 15, 2009. Ms. Muehlberger’s assessment measured discrete skills compared with expectations for an age range. The assessment did not include normative testing. Testimony of Muehlberger; exhibit S-2.
78. In her written social skills assessment report, Ms. Muehlberger concluded that with respect to “important social developmental milestones …, [Student] demonstrates most of the skills within the 48-60 months range, including: Plays cooperatively with others, follows simple rules in a game, recognizes others need for help and gives assistance, follows rules in simple games, responds positively to the good fortune of others and has a group of friends.” She testified that Student occasionally made a statement to no one in particular, he does not always respond to a social cue, and he does not always appear to understand a social communication. Similarly, her written report indicates instances where Student did not demonstrate social skills. However, she testified that these social skills weaknesses did not alter her overall opinion that Student is able to perform most of the social skills that his typical peers are able to perform, as reflected within the portion of her written report quoted above. Testimony of Muehlberger; exhibit S-2.
79. Ms. Muehlberger testified that on the basis of her observations and assessment, she concluded that Student did not require any specialized instruction or related services to access the curriculum. Her assessment and reports did not include any recommendations as to what, if any, instruction or services should be provided to Student. Testimony of Muehlberger; exhibits S-2, S-40.
80. Evaluation by Margaret Fairbanks, BS . In late February and in March 2009, Uxbridge’s speech-language pathologist (Margaret Fairbanks) conducted a speech-language evaluation. (Ms. Fairbanks also provided direct speech-language services to Student both within the classroom (for 30 minutes, once per week) and outside the classroom (for 30 minutes, once per week with one other child) during the 2008-2009 school year.) With respect to her evaluation, Ms. Fairbanks considered previous testing (including her own 2007 speech-language evaluation) and Student’s current performance, and she administered the following standardized tests: Peabody Picture Vocabulary Test, Expressive One Word Picture Vocabulary Test, Preschool Language Scale fourth Edition, and the Clinical Evaluation of Language Fundamentals – Primary (word structure subtest only). Ms. Fairbanks testified, and her evaluation report reflects, that on the basis of her evaluation together with her experience working directly with Student, Student demonstrated high average to above average skills in receptive and expressive language, he had made significant progress in language comprehension and verbal output since the previous speech-language evaluation in 2007, and consequently, speech-language services were no longer warranted. Testimony of Fairbanks; exhibits S-5, S-57.
81. Ms. Fairbanks testified that as part of her speech-language evaluation, she informally assessed Student in the area of pragmatics through observation. She explained that she observed Student within the classroom during the times when she provided services to him and found his pragmatic skills to be well within the average range for his age. She added that she did not observe any concerns regarding Student’s social skills. She testified that she recently observed Student in 1 st grade and did not notice anything abnormal for his age group with respect to social skills. Testimony of Fairbanks; exhibit S-5.
82. Ms. Fairbanks testified that her assessment did not find any weakness regarding word retrieval. She explained that she reviewed Ms. Quinn’s assessment and test scores, which she found supported her opinion that Student does not have a deficit in this area. Testimony of Fairbanks; exhibits S-5, S-14.
83. Evaluation by Joan DiPierro Dubeau, OTR/L . Uxbridge’s occupational therapist, Ms. Dubeau, testified that she did an occupational therapy evaluation of Student on October 24, 2007 and March 20, 2009. She provided occupational therapy consultation to Student’s classroom teacher during the 2009-2010 school year. She has also observed in Student’s classroom on occasion. She testified that Student has made progress regarding his fine motor skills, including coloring, cutting, and including details in his drawings.
84. On the basis of her knowledge of and experience with Student as a result of her observations and testing, Ms. Dubeau testified that Student is not currently in need of direct occupational therapy services in order to access the curriculum or function effectively in the classroom, but she recommended occupational therapy consultation be provided to Student’s classroom teacher so that the teacher can appropriately address his sensory processing issues and assist Student with his pencil grasp. She opined that 15 minutes of consultation per week would likely be sufficient at the outset, but may need to be increased over the course of the school year as Student’s workload increases. She also explained that if Student requires a deep pressure protocol to address his sensory processing issues, then weekly consultation should be increased by an additional 15 minutes per week for purposes to assist the classroom teacher to implement this protocol. Testimony of Dubeau; exhibits S-4, S-8.
85. Similarly, in her March 20, 2009 evaluation report, Ms. Dubeau concluded that Student did not require direct occupational therapy services, but recommended weekly consultation to the classroom teacher. In contrast, in her October 24, 2007 evaluation, she recommended that Student receive direct occupational therapy services. Testimony of Dubeau; exhibits S-4, S-8.
86. Observations by Elizabeth Brennan, BCBA . Twice during the 2009-2010 school year (September 15, 2009 and June 7, 2010) and twice during the current school year (September 1 and 14, 2010), Ms. Brennan, who is Uxbridge’s Board Certified Behavior Analyst, observed Student. Ms. Brennan has substantial experience with children diagnosed on the autism spectrum. Ms. Brennan explained that it was her practice to observe all children (including Student) who have a diagnosis on the autism spectrum, regardless of whether the child was receiving special education or related services. She noted that the observations are for the purpose of seeking to ensure that Uxbridge put in place best education practices for all children on the autism spectrum. She also testified that one of the things that she looks for during her observations is whether the child is demonstrating stereotypies (i.e., stereotypical behavior)—that is idiosyncratic, persistent behavior such as flapping his hands or spinning—that may be used for self-stimulation. She explained that a child may have stereotypies but may not require specialized instruction unless the stereotypies affect the child’s functioning at school. Testimony of Brennan; exhibit S-54.
87. Ms. Brennan testified that during each of her observations, Student was appropriate, with no evidence of frustration, avoidance behavior, or rigidity. He appeared to have no difficulty with transitions; and she observed him to be referencing other children appropriately, and to be engaging in collaborative and imaginative play. In sum, Ms. Brennan testified that Student gave the appearance of a typical child. Testimony of Brennan; exhibits S-1, S-28, S-35, S-62.
88. Ms. Brennan testified that, in her opinion, Student does not require direct specialized instruction or related services. She further stated that Student does not require participation in a social skills group because he can derive sufficient experience and learning in social skills through the general classroom activities and instruction. She also opined that currently there is a 1 st grade social skills group and that she considers this not to be a special education service because children who do not have an IEP may participate. Ms. Brennan also testified that a functional behavioral assessment was not warranted because Student was not demonstrating any aberrant behavior that interferes with his functioning at school. Testimony of Brennan.
89. Observations by Carla Mason, MS . The Uxbridge Interim Director of Pupil Personnel Services (Carla Mason) testified that she co-observed during one of Mother’s observations and during one-half of Dr. Henry’s evaluation. She testified that Student appeared as a typical child who acted appropriately during both observations. She noted, in particular, that during Dr. Henry’s observation when the children were playing “cops and robbers” that she believed Student’s conduct to be appropriate when he told the other children that they should not play this game because Student’s teacher (Mr. Carter) had just told the children that they were not to play with any real or pretend guns. She opined that Student was not out of the social mix during this observation. Testimony of Mason; exhibits S-29.
III. DISCUSSION
A. Student’s Eligibility for Special Education and Related Services
I begin with consideration of Student’s eligibility under the Massachusetts and federal statutory and regulatory standards. Parents have the burden of persuasion regarding this issue, as well as all other issues in dispute in this case .2
As the First Circuit has noted on several occasions, the issue of eligibility for special education benefits can require a “difficult and sensitive” analysis,3 and this case is no exception. The eligibility question itself is complicated and was intensively litigated by the parties, with each party expending considerable legal and educational resources even though the extent of services in dispute (should Student be determined eligible) is not extensive .
The federal and Massachusetts eligibility standards are similarly structured in that each requires that Student meet two prongs: first, Student must have one or more of the requisite disabilities; and second, as a result of the disability(ies), Student must require special education or related services. Notwithstanding the similar structures, there are substantive differences between state and federal eligibility standards, and both state and federal standards must be considered. Student must be considered eligible for special education services if he meets either the state or the federal eligibility standards since state standards are essentially incorporated into the IDEA but may nevertheless not diminish a student’s rights under the IDEA.4
For purposes of the first prong of the two-part eligibility standard, I consider two disabilities that fall within the IDEA definition of “child with a disability”. Student need meet either one of these disabilities to satisfy the first prong of the eligibility standard. I first consider the disability of autism. The IDEA includes “autism” within its definition of “child with a disability”, defining it as follows: “Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age three, that adversely affects a child’s educational performance.”5 Massachusetts regulations specifically adopt the federal definition of autism for purposes of eligibility.6
I also consider the disability of developmental delay. The IDEA defines “child with a disability” to include, at the discretion of the state, a child between the ages of three and nine who is “experiencing developmental delays, as defined by the State and as measured by appropriate diagnostic instruments and procedures, in 1 or more of the following areas: physical development; cognitive development; communication development; social or emotional development; or adaptive development.”7 The Massachusetts special education statute defines, for purposes of eligibility, “School age child with a disability” to include a school age child with a disability of “developmental delay”.8
Within its special education regulations, Massachusetts has defined the term “developmental delay” to mean: “ The learning capacity of a young child (3-9 years old) is significantly limited, impaired, or delayed and is exhibited by difficulties in one or more of the following areas: receptive and/or expressive language; cognitive abilities; physical functioning; social, emotional, or adaptive functioning; and/or self-help skills.”9
It is not disputed that Student appropriately carries a diagnosis of PDD, NOS, and that this diagnosis is generally considered to fall within the autism spectrum. However, the above-quoted regulatory definition of “developmental disability” would appear to fit Student’s profile slightly more easily than the above-quoted regulatory definition of “autism”. The eligibility analysis below will therefore focus on the disability category of “developmental disability”.
The second prong of the federal eligibility standard is that “by reason of” one of the requisite disabilities, Student “needs special education and related services.”10 The IDEA defines “special education” as “specially designed instruction … to meet the unique needs of a child with a disability.”11 Regulations specify that special education requires adapting for each child, as appropriate, “the content, methodology, or delivery of instruction,” to address the child’s “unique needs”.12
The second prong of the Massachusetts eligibility standard is similar although provides additional guidance. Massachusetts defines an eligible student as a child who, as a consequence of one or more of the requisite disabilities, “is unable to progress effectively in the general education program without specially designed instruction or is unable to access the general curriculum without a related service.”13 “In determining eligibility, the school district must thoroughly evaluate and provide a narrative description of the student’s educational and developmental potential.”14
The term “progress effectively in the general education program”, as quoted above, is further defined by Massachusetts regulation to mean: “to make documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to chronological age and developmental expectations, the individual educational potential of the student, and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district. The general education program includes preschool and early childhood programs offered by the district, academic and non-academic offerings of the district, and vocational programs and activities.”15
With these standards in mind, I turn to a consideration of the nature and extent of Student’s disability and any consequent need for special education or related services.
At the outset, I note that Uxbridge has conceded that Student meets the first prong of the eligibility standard. See Uxbridge closing argument, p. 7.16 I therefore need not address the first eligibility prong in order to determine that Parents prevailed on this part of the dispute. However, prong one and prong two are interrelated. A determination of whether Student met the second prong depends on the nature and extent of his disabilities, and the first prong factual findings are therefore necessary for this preliminary purpose even when the first prong is conceded. I therefore will make findings regarding Student’s disability under the first prong of the eligibility standards before considering whether Student satisfies the related, second prong.
Parents’ experts’ testimony and reports support the proposition that the principal negative impact of Student’s PDD, NOS disability is that he has deficits in social skills, and within this general category, Student has a particular weakness in understanding and appropriately utilizing social and pragmatic language. The nature and extent of these deficits was the subject of extensive debate involving testimony and written report during three days of hearing—Parents and their experts testifying as to Student’s substantial and persistent social and pragmatic language skills deficits as reflected in standardized testing and observation, and Uxbridge’s experts testifying that as a practical matter, Student has virtually no deficits in this or any other area at school. I begin with a review of Parents’ testimony and the testimony and reports of their experts.
Student’s social and pragmatic language deficits were considered through a neuropsychological evaluation by Dr. Henry in June and July 2009, her classroom observation of Student approximately ten months later, and a speech-language evaluation by Ms. Quinn near the end of July 2010. Dr. Henry’s and Ms. Quinn’s testimony, combined with their written evaluation and observation reports, provided a detailed and comprehensive description of Student’s pragmatic language and social skills deficits and additional language weaknesses, the lack of progress in these areas, the likelihood that Student would not make substantial progress without specialized instruction, and the implications of these deficits on his educational development. Testimony of Quinn, Henry; exhibits P-7, P-8, P-9, S-11, S-13, S-14.
Dr. Henry and Ms. Quinn are each experienced professionals who testified candidly, reliably and credibly. Their testimony and reports, which are described more fully within the Facts section of this Decision above, part II C, pars. 40 – 60 and 61 – 72, are summarized below.
Through standardized testing using the Developmental Neuropsychological Assessment – 2 nd Ed., Dr. Henry focused on Student’s ability to recognize facial expressions of other children, his ability to match the underlying emotion of another with the body language of a non-verbal cue, and his ability to recognize the perspective of others. In each of the two relevant subtests that focused on these skill areas, Student scored within the bottom first percentile as compared to similar-aged peers, indicating a marked weakness. Additionally, Dr. Henry found that during testing, Student demonstrated a marked difficulty with organizing and using language in a social situation, often responding tangentially to questions or responding in a way that was unrelated to the question asked. Testimony of Henry; exhibits P-7, S-11. See Facts, part II C, pars. 40 – 50.
Dr. Henry’s neuropsychological report concluded: “Overall, [Student’s] abilities in these areas [of early social perception skills and taking others’ perspectives] as well as his capacity to accurately read social cues and interpret social situations, constitute an area of significant vulnerability for him.” Dr. Henry found Student’s deficits in these areas to be particularly striking within the context of his overall strong educational profile, including his cognitive abilities, academic readiness skills, and language skills. Testimony of Henry; exhibits P-7 (page 10), S-11 (page 10).
Near the end of May 2010, Dr. Henry conducted an observation of Student both in the classroom and during recess. She observed that Student continued to have marked difficulty appropriately using and understanding social and pragmatic language, specifically with respect to recognizing non-verbal cues, engaging in reciprocal and flexible conversations with peers, and staying on topic in conversations. Testimony of Henry; exhibits P-8, S-13. See Facts, part II C, pars. 52 – 55.
One part of Dr. Henry’s observation is particularly illustrative of her concerns. Dr. Henry testified that during recess at the end of the day, the children were playing “cops and robbers”. The teacher had previously instructed the children not to use or even pretend to use any guns. During recess, Student repeatedly stated that the teacher (Mr. Carter) had said no pretend guns were allowed, and he then told the other children that no one should play the game; the children ignored Student and kept playing. Dr. Henry testified that Student inappropriately and ineffectively sought to become the enforcer of this rule, running around to the other children and reprimanding them for not complying with the teacher’s instructions. She explained that “cops and robbers” turned into a kind of keep-away game with the other children trying to keep away from Student, yet he missed that the game turned into a situation where all of the other children were against him. Dr. Henry concluded that during recess she observed that Student had a desire to be with the other children but missed the subtle innuendos of the other children either inviting him or avoiding him. Testimony of Henry; exhibits P-8, S-13.
Dr. Henry testified that on the surface, Student may appear to be doing okay in these areas, but she noted that if one dissects the communication exchanges that were happening, it becomes clear that he is missing some of the more subtle aspects of socialization skills. Dr. Henry opined that on the basis of her formal testing and observation, Student appeared to have had made little, if any, progress in his deficit areas from the end of June 2009 to the end of May 2010. Dr. Henry’s observation heightened the concerns that she had in this area as a result of her neuropsychological testing. Testimony of Henry; exhibits P-7, P-8, S-11, S-13. See Facts, part II C, pars. 54, 55.
Near the end of July 2010, Ms. Quinn tested Student’s pragmatic language skills through a subtest of the Comprehensive Assessment of Spoken Language that focused on pragmatic judgment. The subtest is used to elicit Student’s responses to social situations. Of all the subtests administered by Ms. Quinn, this was Student’s weakest area and the one subtest on which he scored moderately below the average range. His subtest score fell within the bottom 4 th % as compared to his same-age peers. Testimony of Quinn; exhibits P-9, S-14. See Facts, part II C, par. 66.
Ms. Quinn testified that her testing revealed a marked weakness in Student’s ability to recognize the more subtle aspects of communication for purpose of reading a situation, understanding what is being communicated, and modulating his responsive behavior and language appropriately. She testified that these are important skills and abilities for purposes of making progress in school. She emphasized the concern that without remediating this deficit, Student is likely to become increasingly isolated at school, which will in turn have substantial educational implications. She further explained that these are all difficulties that are related to Student’s PDD, NOS diagnosis. Testimony of Quinn; exhibits P-9, S-14. See Facts, part II C, pars. 66, 69.
Parents, who are both teachers with experience or knowledge in the area of special education,17 gave many examples of Student’s difficulties in social situations at home and in the community that supported the opinions of Dr. Henry and Ms. Quinn. Parents explained how Student has demonstrated limited ability to use appropriate language for socializing or interacting with his peers even though he has demonstrated a desire to interact with peers—for example, becoming “bossy” or preservative, or using an inappropriately loud voice. Parents also observed Student in the classroom on a number of occasions, and testified that, at times, he did not appear to be acting in accordance with the expectations of the classroom—for example, not responding to repeated inquiries from a classmate. Parents also noted Student’s occasional behavioral outburst. Testimony of Mother, Father.
One incident, in particular, that was reported by Father is illustrative of Student’s difficulties with social and pragmatic language. The incident support’s Dr. Henry’s concerns related to her observation of the “cops and robbers” game, above. Father testified as follows:
And I made a point, because I knew at some point [Student] would be playing soccer. I made a point to point out the rules to him. And soccer is pretty straight forward. You put the ball in the goal. He never gained it. During the play, made no attempt to attack the ball, to kick the ball. The only time he would kick the ball is when the ball came directly at him at which time he would kick it in whatever direction he was facing. … What he would do is he would run alongside the play and he would bark out instructions that were coach speaking, something he heard from the coach. He would say things like nice hustle, you’ve got to hustle, play defense, don’t forget to play defense, things that you would hear from the coach, things that you heard from the coach that game. It was for [Student] very typical bossy behavior in telling the kids what to do.
Transcript, vol. 2, pp. 91-92.
In sum, Dr. Henry, Ms. Quinn and Parents provided detailed and comprehensive evidence, supported by standardized testing, clinical observation, and observations by Parents, that Student has substantial deficits with respect to social and pragmatic language (including non-verbal language). Their testimony and reports found that Student has difficulty with the more subtle aspects of communication for purpose of reading a situation, understanding what is being communicated, and modulating his responsive behavior and language appropriately. In particular, Student has difficulty recognizing and understanding facial expressions, as well as other body language and non-verbal cues. Thus, for example, he has limited ability to match the underlying emotion of another child with the body language of a non-verbal cue. He has difficulty recognizing and understanding the perspective of others. As illustrated by the “cops and robbers” and soccer examples discussed above, Dr. Henry and Ms. Quinn found that the result of Student’s social and pragmatic language deficits is that he is unable to participate effectively with his peers in certain situations, he will likely be increasingly isolated socially from his peers in these situations, he will miss opportunities for learning (particularly in early elementary school), and he is at risk of being teased and perhaps bullied. Testimony of Quinn, Henry, Parents; exhibits P-7, P-8, P-9, S-11, S-13, S-14.18
Uxbridge sought to rebut these opinions through a number of experts and educators and to establish that Student has no effective limitations in his social and pragmatic language skills.
I first consider the testimony and evaluation report of Uxbridge’s one witness with expertise in the area of communication generally and language in particular (Ms. Fairbanks). Ms. Fairbanks evaluated Student regarding his speech-language skills. She explained that as part of this evaluation, she did not formally test Student regarding language pragmatics and instead she informally assessed Student in this area through classroom observation.
Ms. Fairbanks’ written evaluation report does not reference any review of Student’s pragmatics. When asked about this on cross-examination, she explained that instead of referring to pragmatics, her report discusses “social language”. However, in her written report, Ms. Fairbanks did not address or identify Student’s social language as a particular topic (compare, for example, her discussion of her informal assessment of “intelligibility” and “voice/fluency on page 5 of her report). Instead, Ms. Fairbanks addressed this area in her report only within the heading “Current Performance” (see pages 2 and 3 of the report) where she provided general examples relative to social language skills—for example, that Student knows how to ask questions that are appropriate and participates in sharing and waiting his turn to answer. Thus, she did not make a general assessment of Student’s social or pragmatic language apart from pointing out specific examples of what he was able to do currently. Testimony of Fairbanks; exhibits S-5.19
For this reason, I find that Ms. Fairbanks’ report is not sufficient to rebut the detailed testimony and reports of Parents’ experts who explicitly addressed through evaluation and observation Student’s social and pragmatic language deficits, particularly in the more subtle aspects of communication, including reading a situation, understanding what is being communicated through non-verbal communication, and modulating his responsive behavior and language appropriately, as discussed above in the text accompanying footnote 18.
Ms. Fairbanks’ testimony was similarly limited in probative value as a rebuttal to Ms. Quinn and Dr. Henry. Her testimony made clear her opinion regarding the appropriateness of Student’s social skills and behavior in general. To be sure, Ms. Fairbanks opined that Student has made progress in the area of social skills and no longer required speech-language services or other specialized services to address Student’s social skills. However, her testimony was general in nature, with little, if any, detailed or focused testimony responding to the particular concerns expressed by Ms. Quinn and Dr. Henry relative to Student’s social and pragmatic language deficits.20
For these reasons, I did not find Ms. Fairbanks’ testimony or report to provide a persuasive rebuttal to Dr. Henry and Ms. Quinn.
On October 28, 2008, November 3, 2008, and November 19, 2008, Ms. Muehlberger observed and collected data regarding Student with respect to his achieving the three benchmarks/objectives on the social goal in his IEP. In April 2009, Ms. Muehlberger conducted a social skills assessment of Student, using the Assessment of Social and Communication Skills for Children with Autism. Ms. Muehlberger testified that on the basis of her observations and assessment, she concluded that Student did not require any specialized instruction or related services to access the curriculum.
I found Ms. Muehlberger to be an experienced behaviorist, and a candid and credible witness. However, I do not believe that either her observations, her assessment or her testimony directly addressed the question of Student’s ability to understand and use social and pragmatic language, particularly in those areas of concern to Ms. Quinn and Dr. Henry. I first consider her social skills assessment.
In her written assessment report, Ms. Muehlberger concluded that with respect to “important social developmental milestones …, [Student] demonstrates most of the skills within the 48-60 months range, including: Plays cooperatively with others, follows simple rules in a game, recognizes others need for help and gives assistance, follows rules in simple games, responds positively to the good fortune of others and has a group of friends.” Nowhere within this quoted sentence, nor in any other party of her report, does she comment specifically regarding the more subtle aspects of social and pragmatic language (such as understanding facial expression and other body language) that were concerning to Dr. Henry and Ms. Quinn. This is perhaps understandable because, although Ms. Muehlberger has substantial experience working with children on the autism spectrum, her experience and expertise are principally in the area of behavior rather than in the area of communication generally or language in particular. Testimony of Muehlberger; exhibit S-2.
I now turn to the observations that were done on October 28, 2008, November 3, 2008, and November 19, 2008 by Ms. Muehlberger. These observations as well as the observations of Ms. Earl were for the purpose of collecting data to determine whether Student was achieving the three benchmarks/objectives on the social goal in his IEP (exhibit P-2), which were as follows:
1. Respond to his name with called by a teacher or peer with eye contact in 80% of measured opportunities.
2. Gain the attention of his peers prior to initiating interaction with them in 80% of measured opportunities.
3. Initiate play with another child without prompting in 80% of measured opportunities.
Ms. Muehlberger and Ms. Earl both found that Student generally met each of the three benchmarks/objectives. Testimony of Muehlberger, Earl; exhibit S-40.
Student’s ability to meet each of these three benchmarks/objectives is relevant to a general understanding of his social and pragmatic communication skills, but nevertheless does not rebut or even diminish the specific concerns expressed by Ms. Quinn and Dr. Henry, as discussed above in the text accompanying footnote 18. Similarly, testimony of Ms. Muehlberger and Ms. Earl that went beyond these three benchmarks/objectives did not focus on Ms. Quinn’s and Dr. Henry’s above-discussed particular concerns.
For these reasons, I did not find the testimony and reports of Ms. Muehlberger and Ms. Earl to provide a persuasive rebuttal to Dr. Henry and Ms. Quinn.
Student’s classroom teachers for the current year, as well as the past two years, and Student’s reading teacher from last year all testified as to Student’s social skills. Each of these teachers testified credibly. Each has had continuing opportunities to observe Student on a daily basis and to note his use and understanding of social and pragmatic language. They consistently described Student as a child whose social skills fell within the average range for his age group. None of the teachers found any indication that if Student had a social skills deficit, it interfered with his access to the curriculum or precluded his making effective progress. Testimony of Carter, Manz, Mercure, Stankevitz; exhibits S-43, S-45, S-46. For a summary of their testimony, see Facts, part II B, above.
For example, the teacher who had the most opportunity to observe Student in the relative recent past was Student’s kindergarten teacher (Mr. Carter) who testified that social skills was part of his curriculum, that Student made progress academically and socially, that Student demonstrated many social and pragmatic skills (for example, Student made appropriate eye contact with others, he often referenced his peers, and he liked to follow rules but was not a rigid thinker), that he did not notice deficits in Student’s language pragmatics, and that Student did not require specialized instruction to access the curriculum. Testimony of Carter; exhibits S-43, S-45.
In seeking to reconcile the testimony of the teachers with the testimony and reports of Parents’ two experts and the Parents themselves, I consider that, as Dr. Henry explained, Student may, on the surface, appear to be doing okay in the area of social skills, including social and pragmatic language. Also, Student is bright and demonstrates higher language skills, including strong vocabulary, presentation as a very verbal child, and good grammatical use of words. Within this context, it would be easy for a regular education teacher, who is working with a relatively large number of students, to conclude that Student has no noticeable deficiencies even in the area of social skills. But, as Dr. Henry testified, if a person with specialized training dissects the exchanges that were happening between Student and his peers, it becomes clear that he is missing some of the more subtle yet important aspects of socialization skills.
For these reasons, notwithstanding the testimony and reports of Uxbridge witnesses, I am persuaded by Dr. Henry and Ms. Quinn, with supporting testimony from Parents, that as a result of his PDD, NOS, Student’s capacity to learn social and pragmatic language is significantly limited, impaired and delayed, as exhibited by his significant developmental delay and difficulties in this area. For these reasons, Student meets the regulatory definition of “developmental delay”. He therefore meets the definition of “child with a disability”, and the first prong of the eligibility standard is satisfied.
I now consider whether Student meets the second prong of the eligibility definition. As already explained, I have found Ms. Quinn’s and Dr. Henry’s assessment of Student’s social skills and pragmatic language deficits to be persuasive. I turn to the question of whether by reason of these deficits, specialized services are needed or, conversely, whether Student’s deficits in this area can be remedied in the regular education classroom without the need for specialized services.
Dr. Henry evaluated Student, finding substantial social and pragmatic language deficits, and ten months later, she observed Student and found a lack of progress in his social and pragmatic language, including the quality of his reciprocal interactions. Dr. Henry further noted that Ms. Quinn’s speech-language evaluation (approximately one year after her own evaluation) confirmed that Student showed continued difficulty and lack of progress in these areas. Testimony of Henry; exhibits P-7, P-8, S-11, S-13. See Facts, part II C, pars. 40 – 72.
Dr. Henry and Ms. Quinn testified persuasively that if it were possible for Student to make progress in his deficit areas without direct, specialized instruction, he would have done so by now, given the amount of time over the past several years that he has spent within pre-school and kindergarten where social skills are an important part of the daily activities. They concluded that, given Student’s diagnostic presentation and his failure to incidentally pick up certain social and pragmatic language skills, he is not likely to be able to learn these skills through his continued participation in the general classroom; and he therefore requires direct, specialized instruction to learn these skills.
The testimony of Ms. Quinn and Dr. Henry was persuasive (and their testimony was not rebutted) that learning appropriate social skills, including social and pragmatic language, is an integral part of the 1 st grade curriculum. There are also important, negative implications to Student’s not learning these skills. They testified persuasively that without remediation through specialized instruction, Student’s deficits in the area of social and pragmatic language skills will likely continue unabated. In addition, Student’s difficulties reading and responding to non-verbal cues and managing more complex social structures will likely become more apparent at school as expectations increase. Consequently, the gap between Student and his peers would likely increase over time. The likely result is that, increasingly, Student will miss social opportunities for learning, become isolated from his peers socially, and be at risk of being teased and perhaps bullied. It is not disputed that the earlier one intervenes to address these issues, the better the outcome. Testimony of Quinn, Henry, Stankevitz, Earl.
I have carefully considered the opposing evidence presented by Uxbridge, particularly the testimony of Student’s current and former teachers that Student has been making good progress academically and socially, and that no specialized instruction is needed either to access the curriculum or to make progress in school. For reasons previously discussed, I did not find this evidence to persuasively rebut the testimony and reports of Dr. Henry and Ms. Quinn, together with the credible observations of Parents.
It is also not disputed that Student is a socially-oriented child who demonstrates a desire to form social connections and makes attempts to participate in reciprocal experiences. In addition, he has good cognitive potential. All of this indicates that Student is likely to make substantial progress in his deficit areas if given appropriate, specialized instruction. Testimony of Quinn, Henry, Earl, Carter.
On the basis of this evidentiary record, I find that Student meets the second prong of the eligibility standard. I reach this conclusion because I find that, by reason of developmental delay, Student needs specially designed instruction to meet his unique needs. I further find that, by reason of developmental delay, he requires specialized instruction to make “effective progress”—that is, documented growth in the acquisition of skills and in his social development, according to his chronological age, developmental expectations, and individual educational potential.
B. Special Education and Related Services to be Provided Student
Having determined that Student is an individual with a disability, falling within the purview of the IDEA and the Massachusetts special education statute, I consider the special education and related services that Student is entitled to receive.
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.”21 FAPE must be provided in the least restrictive environment.22
Student’s right to FAPE is assured through the development and implementation of an individualized education program or IEP.23 An IEP must be custom-tailored to address Student’s “unique” educational needs.24
FAPE is defined by the IDEA to include state educational standards,25 which may exceed the federal floor .26 In Massachusetts, state standards explicitly address the need for special education services for students with a disability on the autism spectrum. These standards are found within Chapter 57 of the Acts of 2006, entitled An Act To Address The Special Education Needs Of Children With Autism Spectrum Disorders , which took effect in July 2006. This law, which amended M.G.L. c. 71B, § 3, provides in relevant part:
Whenever an evaluation indicates that a child has a disability on the autism spectrum, which includes … pervasive developmental disorder not otherwise specified, … the Individualized Education Program (IEP) team … shall consider and shall specifically address the following: the verbal and nonverbal communication needs of the child; the need to develop social interaction skills and proficiencies; … and other needs resulting from the child’s disability that impact progress in the general curriculum, including social … development.
In response to this statute, the Massachusetts Department of Elementary and Secondary Education issued Technical Assistance Advisory SPED 2007-1: Autism Spectrum Disorder ( Advisory ) on August 25, 2006, “ to provide guidance on the ways that the Individual Education Program (IEP) Team may effectively frame complete and thorough discussions of the strengths and needs of a student with Autism Spectrum Disorder (ASD).”27 The Advisory notes that “[i]mpairment in communication is one of the defining characteristics of ASD; therefore communication skill development should be addressed as an essential piece of the student’s IEP” and notes the relevance of “the student’s ability to use and understand non-verbal communication (e.g., eye gaze, facial expression, gesture)”28 The Advisory further states that “[p]rogress in social skill development is a likely focus within the IEP of every student with ASD” and for this purpose, noted the relevance of “the student’s pragmatic language skills” as well as “anecdotal information about the student’s abilities within small and large group settings and in typical activities for students of that age.”29
In sum, the Advisory provides that where, as is the case here, Student has an evaluation indicating a diagnosis of PDD, NOS, specialized services should be provided to address his communication and social skills deficits where, as is true for Student, he has substantial deficits in the areas of non-verbal communication and pragmatic language.
In light of these Massachusetts and federal standards, and for reasons explained within the eligibility portion of the instant Decision (part III A, above), I find that Student has significant social and pragmatic language deficits, these deficits are not likely to be remediated through participation in the general education curriculum, and therefore Student requires specialized instruction to address these deficits. If one accepts these findings, it is not disputed that the appropriate remediation is for Student to receive direct, specialized social skills intervention within a social skills group . Testimony of Earl, Quinn, Henry.30
As explained by Ms. Quinn, the social skills group should begin with other children with language and social needs similar to those of Student, and then as part of the curriculum, typical peers later become involved in the process. This should be provided once per week for 30 to 45 minutes. Social skills instruction should be provided by a clinician or educational professional with advanced training in social skills development and intervention. Testimony of Quinn; exhibits P-9, S-14.
I now turn to the question of what other special education or related services, if any, must be provided to Student.
In addition to the above-discussed concerns, Ms. Quinn’s assessment found that Student’s narrative production skills—that is, his ability to formulate simple stories or share personal narratives—was notably reduced, particularly in comparison to his cognitive skills and strengths in other language areas. Student had difficulty formulating sentences that were complete using specific vocabulary that conveyed a sequence of events or connection of ideas for purposes of sharing information. This skill is important because it is the way that children demonstrate knowledge and it is how children interact socially. Testimony of Quinn; exhibits P-9, S-14.
Ms. Quinn also found that although Student has a strong vocabulary, it was difficult for him to find a word (or access it) in his storage in a timely fashion—this results in hesitancy of speech and also results in his sometimes describing something rather than using a specific word. This area was below age expectation. Testimony of Quinn; exhibits P-9, S-14.
Ms. Quinn testified that if Student does not receive speech-language services to address narrative production and word retrieval, the likely implications would be difficulty with reading and written language production. Testimony of Quinn; exhibits P-9, S-14.
Ms. Quinn recommended that Student receive direct speech-language services at least once per week for 45 minutes to address these deficits. Similarly, Dr. Henry recommended direct speech-language services to work on areas of weakness including narration skills, formulation skills, and responding to open-ended questions. Ms. Quinn and Dr. Henry agreed that with appropriate speech-language services, Student is likely to make substantial progress. Testimony of Quinn, Henry; exhibits P-7, P-9, S-11, S-14.
However, during cross examination, Ms. Quinn testified that direct speech-language services may not be necessary if word retrieval and narrative production are addressed within the curriculum, but she further explained that, under these circumstances, a speech-language pathologist should be involved within the classroom setting for this purpose or to consult to the teacher outside of the classroom through shared planning and collaboration time.
Uxbridge took the position that direct speech-language services are not necessary because even if Student has weaknesses in this area, they can and will be addressed through instruction by the general education teacher in 1 st grade. Uxbridge’s position is supported by the testimony of its speech-language pathologist (Ms. Fairbanks) who evaluated Student and provided him direct speech-language services during the 2008-2009 school year.
On the basis of this evidence, I agree with Uxbridge that Student need not receive direct speech-language services and that Student’s weaknesses in this area may be addressed through regular education services within the 1 st grade classroom. However, I defer to Ms. Quinn’s expertise that, in order that these general education services effectively address Student’s deficits, there must be consultation from a speech-language pathologist to the classroom teacher. I find that this consultation to be necessary so that Student will have the opportunity to make effective progress with respect to the speech-language deficits identified by Ms. Quinn and Dr. Henry.
Ms. Quinn recommended that the consultation be at the level of one-half hour per week. However, it should be noted that Ms. Quinn arrived at this amount of time on the spot, during cross-examination, without the benefit of knowing the skill set of the classroom teacher. Accordingly, the amount of consultation time should begin at a half hour per week as recommended by Ms. Quinn, but, with input from the classroom teacher and Uxbridge’s speech-language pathologist, the amount of consultation time may be changed over time by the IEP Team as necessary and appropriate for Student.31
Parents have also sought special education services to address what they believe to be Student’s behavioral deficits. In her testimony and written report, Dr. Henry recommended a behavior specialist be part of Student’s IEP Team as a consultant, including a monthly (30 to 60 minutes) consultation to Parents, and that there be a behaviorally-trained aide in Student’s classroom to work with Student on the spot to provide instant feedback regarding behavioral issues. Testimony of Henry; exhibits P-7, S-11.
However, Dr. Henry testified that during her observation, she found that some of Student’s behavior difficulties, as identified within her neuropsychological evaluation, had ameliorated, making less important some of her recommendations related to addressing Student’s behavior. In addition, Uxbridge witnesses were persuasive that Student has not demonstrated any particular behavior difficulties that have interfered with his education. Testimony of Henry, Mercure, Carter, Stankevitz.
In response, Parents point principally to behavior difficulties that occurred when a long-term substitute was Student’s teacher while he was attending pre-school during the 2008-2009 school year. These behavior incidents occurred a long time ago, they appear to be isolated occurrences that have not been repeated, and they may be attributable, in part, to the fact that there was a substitute teacher rather than the regular classroom teacher. (When the classroom teacher returned from her extended absence, she needed to re-establish classroom expectations regarding behavior with the children generally.) Accordingly, I give little probative weight to Student’s behavior in pre-school as an indicator of current need. Testimony of Parents, Mercure; exhibit P-15.
Parents also point to Student’s significant behavior difficulties, including aggression, at home and in the community. These behavior difficulties are undisputed. Nevertheless, they have no relevance to Uxbridge’s responsibility to provide special education or related services unless Parents can demonstrate that they have a substantial impact upon Student’s education.32 Parents have provided no evidentiary basis for such a finding.
I further note that when asked about the appropriateness of her conducting a home assessment, Ms. Brennan answered that as a general rule a home assessment is not warranted where there is no indication that behavioral difficulties at home are impacting a student at school, and this is the situation with Student. But, she further testified that on the basis of Parents’ testimony regarding Student’s behavior at home (which was the first time that she learned of the extent of Student’s behavior problems at home), she would recommend a home assessment or behavioral consultation to Parents. On the basis of this testimony, together with Parents’ testimony, I recommend, but do not require, that Uxbridge provide Student with a home assessment.
Parents also sought direct occupational therapy. However, Parents’ evidence on this issue was not persuasive. The only person recommending occupational therapy services was Dr. Henry, who did so on the basis of her observation of Student. But, Dr. Henry is not an occupational therapist, nor is there any evidence indicating an expertise in this area. Testimony of Henry; exhibit P-24.
Parents’ independent occupational therapy evaluation resulted in a report that found that Student had “significant difficulties with motor planning, coordination, postural stability, and visual perceptual/motor skills.” However, the evaluation did not explain whether occupational therapy services are necessary for purposes of Student’s education and did not make an explicit recommendation regarding what occupational therapy services should be provided, instead only stating that Student would “benefit from treatment from a skilled occupational therapist and an on going home program.” Because the occupational therapist did not testify, it was not possible to understand further the nature and extent of her recommendations for services. As a result, her written report has little probative value. Exhibits P-10, S-12.
Uxbridge’s occupational therapist (Ms. Dubeau) testified persuasively that Student is not in need of direct occupational therapy services in order to access the curriculum or function effectively in the classroom, but she recommended occupational therapy consultation be provided to Student’s classroom teacher so that the teacher can appropriately address Student’s sensory processing issues and assist Student with his pencil grasp. She opined that 15 minutes of consultation per week would likely be sufficient at the outset, but may need to be increased over the course of the school year as Student’s workload increases. She also explained that if Student requires a deep pressure protocol to address his sensory processing issues, then weekly consultation should be increased by an additional 15 minutes per week to assist the classroom teacher to implement this protocol. Testimony of Dubeau; exhibits S-4, S-8.
For these reasons, I find that Uxbridge shall provide consultation from an occupational therapist to the classroom teacher initially for 15 minutes per week because such consultation is necessary so that Student will have the opportunity to make effective progress and access the curriculum. This amount of time may need to be adjusted by the IEP Team, with input from the Uxbridge occupational therapist.
C. Compensatory Services
Through my ruling allowing Parents’ stay put claims, I have previously determined that Student had stay put rights to continue his last-agreed upon services after Uxbridge’s determination that Student was no longer eligible and Parents’ rejection of that determination. It is not disputed that following Parents’ rejection, Uxbridge provided Student with no special education or related services for the entire 2009-2010 school year.
Parents seek compensatory education as a result. I first consider relevant legal standards.
“Compensatory education is a surrogate for the warranted education that a disabled child may have missed during periods when his IEP was so inappropriate that he was effectively denied a FAPE.”33 The decision-maker needs to make “an informed and reasonable exercise of discretion regarding what services [Student] needs to elevate him to the position he would have occupied absent the school district’s failures.”34 I therefore will consider the educational implications of Student’s not receiving the requisite stay put service and, in light of these educational implications, what services are appropriate as compensation.
“[C]ompensatory education is not an automatic entitlement but, rather, a discretionary remedy for nonfeasance or misfeasance in connection with a school system’s obligations under the IDEA.”35 A hearing officer’s discretion is to be exercised in determining what relief is appropriate only after consideration of all aspects of the case.36
I take into consideration Parents’ delay (from May 2009 to July 2010) in filing a hearing request with the BSEA. Of course, Parents were not required to file a hearing request at an earlier date in order to trigger stay put; nevertheless, Parents could have reduced Uxbridge’s lack of compliance by filing earlier. At the same time, Uxbridge could, at any time after Parents’ rejection of the denial of eligibility, have brought the dispute to the BSEA for resolution. I also note the lack of clarity in the law during this time period. There was a DESE advisory that could be read to support Uxbridge’s position that filing a hearing request was necessary to trigger stay put. See my stay put ruling in the instant dispute. On the basis of these facts, I distinguish Uxbridge’s lack of compliance from the more typical situation of a school district’s failing to implement an agreed-upon IEP.
I now turn to the specific areas of potential compensatory relief in light of these factual circumstances and the above-referenced legal standards.
As discussed above, Student was entitled to receive special education services in the form of a social skills group. Also for reasons already explained, he likely incurred educational harm as a result of Uxbridge’s failure to provide these services during the 2009-2010 school year and during the beginning of the 2010-2011 school year—that is, Student’s deficits in social and pragmatic language remained unaddressed, he likely lost opportunities for learning, and his deficits may have become more difficult to remediate. Testimony of Quinn, Henry; exhibits P-7, P-8, P-9, S-11, S-13, S-14. With respect to provision of compensatory services, Ms. Quinn and Dr. Henry testified that they would recommend that Student be provided the opportunity to attend an additional social skills group during the summer. Alternatively, Ms. Quinn recommended a highly structured summer program specifically designed to meet the needs of high-functioning children with a PDD, NOS diagnosis.37 I find either one to be an appropriate compensatory award for Uxbridge’s failure to provide Student with a social skills group during the period of stay put entitlement.38
As discussed above, Student was entitled to receive special education related services in the form of occupational therapy services. Student did not receive direct occupational therapy services during the 2009-2010 school year. Ms. Dubeau testified persuasively that during the 2009-2010 school year, Student was not in need of direct occupational therapy services, that she provided occupational therapy consultation services of 15 minutes per week to the classroom teacher, and that this was sufficient. Testimony of Dubeau; exhibits S-4, S-8. Parents provided no probative evidence in rebuttal.
I find that Parents have provided no probative evidence regarding negative implications as a result of Student’s not receiving his stay put occupational therapy services. I conclude that Uxbridge is not required to provide Student with compensatory occupational therapy services.
As discussed above, Student was entitled to receive special education related services in the form of speech-language services. Student did not receive these services during the 2009-2010 school year.
Also as discussed above in part III B, Ms. Quinn evaluated Student on July 28, 2010 and her opinions and recommendations pertain only to Student’s need for prospective services. Parents have provided no probative evidence regarding either Student’s need for speech-language services during the 2009-2010 school year or the implications of Student’s not receiving speech-language services during that school year. There was no evidence that would assist me in determining what, if any, compensatory services are needed in order to make Student whole as a result of the missed services.
For these reasons, I find that Uxbridge is not required to provide Student with compensatory speech-language services.
D. Charges for Copying Student’s Records
In response to Parents’ request to receive a copy of their son’s educational records, Uxbridge provided the copy of the record, which was approximately 360 pages in length, together with a bill to Parents for $137. Testimony of Mother; exhibit P-20
Parents obtained information from Staples, indicating that Staples would have charge 8 or 9 cents per page to copy the records. Mother testified that she believed that Staples’ copying costs are reasonable and that Uxbridge’s copying costs are not. Testimony of Mother; exhibit P-22.
Ms. Mason testified that Uxbridge’s Superintendent set the per page copying rate at 20 cents per page. She explained that she did not have any independent knowledge of the actual cost to Uxbridge of copying records. Testimony of Mason; exhibit P-20.
Through the instant proceeding, Parents dispute the amount of the bill to Parents.
A preliminary question is whether I have jurisdiction over this issue. Although neither party has raised this question in its closing argument, I have an independent responsibility to consider the BSEA’s jurisdiction and to decline to consider any issue that falls outside of that jurisdiction.39
Not dissimilar to federal courts, the jurisdiction of BSEA Hearing Officers is limited.40 A BSEA Hearing Officer’s jurisdiction must be found within the relevant federal and state statutes and regulations that authorize a hearing officer to resolve special education disputes, Section 504 disputes and disputes regarding school district assignment of special education responsibility.41 As a general rule, regular education disputes do not fall within the BSEA’s grant of jurisdiction. An exception may be made where a regular education issue is sufficiently intertwined with a BSEA Hearing Officer’s statutory or regulatory responsibilities to resolve a special education or Section 504 dispute.42
The issue regarding the appropriateness of Uxbridge’s charges for copying Student’s school records is governed by state regular education regulations relevant to school records. Pursuant to these regulations, the parents of any student have the right obtain a copy of the student’s records.43 Uxbridge may charge a “reasonable fee, not to exceed the cost of reproduction” unless “to do so would effectively prevent the parents or eligible student from exercising their right, under federal law, to inspect and review the records”.44 Aggrieved parties have a right of appeal to the Uxbridge Superintendent, and then to the Uxbridge School Committee.45
I find this to be a purely regular education issue with only a tangential bearing on my statutory and regulatory responsibilities. Accordingly, I decline to exercise jurisdiction over this issue.
ORDER
Student is eligible to receive special education and related services pursuant to state and federal special education laws. Uxbridge shall provide Student with an IEP that includes the following direct social and pragmatic language services, occupational therapy consultation services, and speech-language consultation services:
· Uxbridge shall provide Student with specialized services to address his social and pragmatic language deficits through a social skills group once per week for 30 to 45 minutes, with staffing and composition of the group as more specifically described within part III B of this Decision.
· Uxbridge shall provide consultation from an occupational therapist to Student’s classroom teacher, initially at the level of 15 minutes per week, as more specifically described within part III B of this Decision.
· Uxbridge shall provide consultation from a speech-language therapist to Student’s classroom teacher, initially at the level of 30 minutes per week, as more specifically described within part III B of this Decision.
Uxbridge shall provide compensatory education services of either an additional social skills group during the summer or a highly structured summer program specifically designed to meet the needs of high-functioning children with a PDD, NOS diagnosis, as more specifically described within part III B of this Decision. The IEP Team shall meet in a timely manner to determine which of the two choices should be provided and to identify the particular social skills group or program that would be appropriate for Student. Uxbridge is not required to provide any other compensatory services.
I decline to exercise jurisdiction over the parties’ dispute regarding charges for copying Student’s records.
For reasons explained by the Uxbridge BCBA, I recommend that Uxbridge provide Student with a home assessment, with the possibility of subsequent behavior consultation to Parents.
By the Hearing Officer,
William Crane
Dated: November 10, 2010
COMMONWEALTH OF MASSACHUSETTS
Division of Administrative Law Appeals
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
Ms. Quinn’s testimony regarding the implications if Student’s social and pragmatic language deficits are not addressed through specialized instruction, may be found in the transcript at vol. I, pp. 170-173, 193-194, 196.
2
See 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; a party who has the burden of persuasion “ loses if the evidence is closely balanced” ).
3
Mr. I. ex rel. L.I. v. Maine School Admin. Dist. No. 55 , 480 F.3d 1 (1 st Cir. 2007); Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 162 (1st Cir. 2004).
4
See 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) (IDEA “ does not displace the states from their traditional role in setting their own educational policy”; state may “ calibrate its own educational standards, provided it does not set them below the minimum level prescribed by the [IDEA]”) .
5
20 USC s. 1401(3)(A) (including “autism” within the definition of “child with a disability”); 34 CFR 300.8(c)(1)(i) (defining the term “autism”).
6
603 CMR 28.02(7)(a).
7
20 USC s. 1401(3)(B).
8
MGL c. 71B, s. 1.
9
603 CMR 28.02(7)(b).
10
20 USC 1401(3); 34 CFR 300.7.
12
34 C.F.R. § 300.39(b)
(3).
13
603 CMR 28.02(9). See also MGL c. 71B, s.1 (definition of “School age child with a disability”); 603 CMR 28.05(2)(a)1 (using same eligibility standard).
14
MGL c. 71B, s. 1; 603 CMR 28.02(9).
15
603 CMR 28.02(17).
16
I also note that the Student’s IEP Team agreed that Student met the first prong of the eligibility criteria, although the Team focused on the disability of autism rather than developmental delay. During each of its last meetings to review an independent evaluation or observation and to re-determination eligibility, Uxbridge determined that although Student had a qualifying disability, he was making effective progress in school without the need for special education or related services, and was therefore not eligible for special education or related services. Testimony of Mason, Mother; exhibits S-15, S-16, S-17. See Facts, pars. 24, 27, 31.
17
Father teaches English language arts in the middle school. He is certified in regular and special education. Mother teaches in a private, substantially-separate program for special education students. Testimony of Mother, Father.
18
Of all the witnesses who testified regarding Student’s social and pragmatic deficits, I found Ms. Quinn to have the greatest expertise and sophistication regarding communication and language. In addition, she testified in a candid, forthright manner, demonstrating the ability to carefully and thoughtfully consider and respond to questions from the Hearing Officer as well as questions on cross-examination. For these reasons, I place significant reliance on her report and testimony.
19
A comparison of Ms. Fairbanks’ testimony (that she had informally assessed Student’s social and pragmatic language skills as part of her evaluation) and her actual report and further testimony under cross-examination (that made clear that she had not specifically assessed this area other than noting current performance through examples) diminished the credibility of her testimony.
20
In her testimony, Ms. Fairbanks sought to discredit Ms. Quinn’s use of standardized testing to assess Student’s pragmatic language skills. She opined that at Student’s age, it is difficult to test pragmatic language skills since effective testing requires that Student be within a natural environment (such as his classroom) rather than within a 1:1 testing situation. She appeared to base this opinion principally on research that supports this view. However, Ms. Fairbanks neither produced nor was not able to identify (when asked on cross examination) any particular research study that supported her view. Also, Ms. Fairbanks does not administer the CASL test (from which the pragmatics subtest was taken by Ms. Quinn), her knowledge of this test is limited, and she was therefore not able to comment specifically on the CASL pragmatics subtest utilized by Ms. Quinn. Ms. Quinn testified that the CASL is a “widely used” tool that is considered “reliable” for the purposes for which it is used. (See Transcript, vol. 1, page 153.) As discussed above, I found Ms. Quinn to be a highly experienced and knowledgeable speech-language pathologist who testified credibly and candidly. I found her to be a reliable witness with greater expertise than Ms. Fairbanks. I decline to attribute probative value to Ms. Fairbank’s critique of Ms. Quinn’s use of the CASL pragmatic language subtest.
21
20 USC 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A).
22
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, s. 1; 34 CFR 300.114(a)(2(i) ; 603 CMR 28.06(2)(c).
23
20 USC 1414(d)(1)(A)(i)(I)-(III); Honig v. Doe, 484 U.S. 305, 311-12 (1988) ; Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 182 (1982).
24
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. , 518 F.3d 18, 23 (1 st Cir. 2008) (noting the school district’s “ obligation to devise a custom-tailored IEP”); 603 CMR 28.02 (20) (“ Special education shall mean specially designed instruction to meet the unique needs of the eligible student or related services necessary to access the general curriculum and shall include the programs and services set forth in state and federal special education law.”).
25
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”).
26
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]”) .
27
Technical Assistance Advisory SPED 2007-1, which may be found at: http://www.doe.mass.edu/sped/advisories/07_1ta.html
28
Id.
29
Id.
30
Ms. Earl testified that if specialized services were needed to address Student’s social and pragmatic language deficits, then the appropriate specialized services would be the social skills group recommended by Ms. Quinn. Transcript, vol. 2, pages 218-220.
31
Alternatively, the Uxbridge IEP Team may choose to address this issue through a speech-language pathologist’s participating in the classroom setting, as proposed by Ms. Quinn in her testimony, or by providing Student with speech-language services within a small group and classroom setting, as recommended by Ms. Quinn in her written evaluation report.
32
See 20 U.S.C. 1414(d)(3)(B)(i) (“IEP Team shall . . . in the case of a child whose behavior impedes his or her learning or that of others, consider, when appropriate, strategies, including positive behavioral interventions, strategies, and supports to address that behavior”); Gonzalez v. Puerto Rico Department of Education , 254 F.3d 350 (1st Dir. 2001) (“question is whether these behavioral disturbances interfere[ ] with the child’s ability to learn”).
33
C.G. ex rel. A.S. v. Five Town Community School Dist ., 513 F.3d 279, 290 (1 st Cir. 2008).
34
Reid v. District of Columbia, 401 F.3d 516, 527 (D.C. Cir. 2005). See also Draper v. Atlanta Independent School System , 518 F.3d 1275, 1289-1290 (11 th Cir. 2008) (“record supports the conclusion of the district court that Draper’s award is reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place,” citing to Reid ); Board of Educ. of Fayette County, Ky. v. L.M . , 478 F.3d 307, 316 (6 th Cir. 2007) (“We agree with the district court and the Appeals Board that a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address T.D.’s educational problems successfully,” citing to Reid ).
35
C.G. ex rel. A.S. v. Five Town Community School Dist ., 513 F.3d 279, 290 (1 st Cir. 2008).
36
Id. ; Pihl v. Mass. Dept. of Ed. , 9 F.3d 184, 188 n. 8 (1 st Cir. 1993).
37
Dr. Henry also recommended that additional social skills instruction could be provided during the school year. Testimony of Henry. However, I agree with Ms. Quinn that this would take Student away from other educational opportunities and that a summer program is more appropriate. Testimony of Quinn. There was no other evidence regarding appropriate compensatory services.
38
See Pihl , 9 F.3d at 188 n. 8 (s ummer services may be an appropriate compensatory award in a special education dispute).
39
Cf. Freeman v. Burlington Broadcasters, Inc ., 204 F.3d 311, 316 (2d Cir. 2002) (where the basis of jurisdiction is not self-evident, court is obliged to consider it sua sponte ).
40
Cf. Kokkonen v. Guardian Life Ins. Co ., 511 U.S. 375 (1994) (“Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute.”)
41
20 USC 1415(b)(6)(A); MGL c. 71B, s.3; 603 CMR 28.08(3); 603 CMR 28.10(9).
42
See Bristol Borough School District , 40 IDELR 227 (Pa. SEA 2004) ( “There are cases in which hearing officers, and the Appeals Panel, have decided issues that extend beyond special education, such as Pennsylvania’s law regarding home schooling, instruction in the home, and intermediate unit auxiliary services, but only when these issues are intertwined with one or more of the prerequisite issues of identification, evaluation, placement, or FAPE.”) . Cf. Kokkonen , 511 U.S. at 379-80 (discussing a federal court’s taking ancillary jurisdiction over a claim outside of the court’s explicit grant of jurisdiction where “disposition by a single court of claims that are, in varying respects and degrees, factually interdependent”).
43
603 CMR 23.07(2)(a).
44
Id.
45
603 CMR 23.09 (1) and (3).