North Reading School v. Bureau of Special Educ.

• Decision Date: 30 March 2007
• Docket Number: Civil Action No. 05-11162-RCL.
• Citation: 480 F.Supp.2d 479
• Parties: NORTH READING SCHOOL COMMITTEE, Plaintiff, v. BUREAU OF SPECIAL EDUCATION APPEALS OF the MASSACHUSETTS DEPARTMENT OF EDUCATION, Massachusetts Department of Education, and Courtney and Timothy G., as Parents and next friend of M.G., Defendants.
• Court: U.S. District Court — District of Massachusetts

480 F.Supp.2d 479

NORTH READING SCHOOL COMMITTEE, Plaintiff, v. BUREAU OF SPECIAL EDUCATION APPEALS OF the MASSACHUSETTS DEPARTMENT OF EDUCATION, Massachusetts Department of Education, and Courtney and Timothy G., as Parents and next friend of M.G., Defendants.

Civil Action No. 05-11162-RCL.

United States District Court, D. Massachusetts.

March 30, 2007.

Thomas J. Nuttall, Sullivan and Nuttal, P.C., Marshfield, MA, for Plaintiff.

Julie B. Goldman, Office of the Attorney General, Boston, MA, Timothy A. Sindelar, Ames, Hilton, Martin and Sindelar, Cambridge, MA, for Defendants.

MEMORANDUM AND ORDER ON PLAINTIFF NORTH READING SCHOOL COMMITTEE'S MOTION FOR SUMMARY JUDGMENT

LINDSAY, District Judge.

Before me is a motion for summary judgment of the plaintiff North Reading School Committee ("North Reading"). The motion seeks as relief, pursuant to § 1415(i)(2) of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., my reversal of a final decision of the defendant Bureau of Special Education Appeals of the Massachusetts Department of Education ("BSEA").¹ A BSEA hearing officer concluded, after a hearing, that the placement and services offered by North Reading to M.G., a student in the North Reading public schools, during the period from March, 2004 to March, 2005 (the "Student"), were not calculated to provide the Student with a Free Appropriate Publication Education ("FAPE"), and that the Landmark School ("Landmark"), a private, special education school in which the Student's parents, defendants Courtney and Timothy G. (the "Parents"), unilaterally placed the Student, was an appropriate placement. The hearing officer directed North Reading to reimburse the Parents the cost of the Student's placement at Landmark for this period. These decisions of the hearing officer constitute the final decision of the BSEA now on review before me. For the reasons explained herein, I DENY North Reading's motion for summary judgment. Denying North Reading's motion, I affirm the hearing officer's decision.²

1. Background³

The present dispute between the parties concerns whether a special classroom program offered by North Reading was adequate to provide the Student, during the contested period, with the special accommodations that both parties agreed he needed, or whether the Student required placement in a private, special education school. Prior to March 2004, while the disagreement between the parties over this issue was unresolved, the Parents unilaterally enrolled the Student at Landmark. I discuss first the Student's educational history, then turn to his enrollment at Landmark. I next describe the proceedings before, and the decision of, the hearing officer.

a. The Student's Educational History Pre-Landmark.

The Student, who resides in North Reading, Massachusetts, has a history of a language-based learning disability, deficits in memory and executive function, and marked distractibility. In May, 1998, when the Student was three years old, North Reading began to provide funding for the early intervention services that the Student had been receiving since May, 1997. Between September, 1998 and June, 2001, the Student attended North Reading's integrated pre-kindergarten program under an Individualized Education Plan ("IEP").⁴ The Parents supplemented this program with private speech/language therapy outside of school, and by June, 2001, the Student had met his IEP goals. In June, 2001, the Student's IEP TEAM⁵ developed an IEP for the kindergarten school year, recommending a regular education classroom with a number of classroom accommodations and twice-weekly speech and language therapy.

The Parents did not respond to the IEP for the 2001-2002 school year. In late August, 2001, they notified North Reading that, at their own expense, they would be sending the Student to Meritor Academy ("Meritor"), a private, regular education school, where the Student's mother ("Ms. G.") was a substitute teacher. The Parents placed the Student at Meritor, even though it offered no special education services, because it offered a full-day kindergarten in contrast to the half-day kindergarten available in North Reading. The Student remained at Meritor through the first grade at the Parents' expense. When the Student began at Meritor, the Parents considered whether to use North Reading's speech and language services, but engaged a private speech therapist instead to provide after-school services for him. During the time the Student was enrolled at Meritor, North Reading neither provided, nor offered to provide, any services to the family.

b. The Student's Enrollment at Landmark.

Concerned that the Student was continuing to have speech and language problems, struggling with his classes, and beginning to lose enthusiasm for school, the Parents, in September, 2003, hired a neuropsychologist, Dr. John Lappen, to evaluate the Student. Though he did not provide a written report until approximately November, 2003, Dr. Lappen met with the Parents shortly after he completed, his testing of the Student to discuss the results, including his conclusion that the Student's overall performance was consistent with Attention Deficit Hyperactivity Disorder ("ADHD"), and a developmental reading disorder.⁶ Also in September, 2003, Ms. G. contacted Jim Canino, Assistant Director of Pupil Personnel Services for North Reading. She discussed the Lappen evaluation and mentioned the Landmark School, which served students with language-based learning disabilities, as a possible placement for the Student. Mr. Canino told Ms. G. about North Readings language-based elementary classroom. She asked to observe the classroom and was told she could do so after North Reading received Dr. Lappen's report. In October, while the Student was attending second grade at Meritor, Ms. G. submitted an application to Landmark. Dr. Lappen's report was provided to Landmark on December 11, 2003 and to North Reading on December 17, 2003. In a letter to North Reading transmitting the report of Dr. Lappen, Ms. G. requested that North Reading review the report and schedule a TEAM meeting to develop an IEP. North Reading sent the Parents a consent form to enable the district to evaluate the student, which Ms. G. signed on December 24.

Earlier in December, the Student had received additional testing at Landmark and was accepted for admission there. Shortly after December 25, 2003, the Parents notified Landmark that they were enrolling the Student, and in January, 2004, the Student began attending Landmark at the Parents' expense. The Parents did not notify North Reading before they placed the Student at Landmark; they first informed North Reading of this placement in approximately January, 2004.

In February, 2004, North Reading conducted psychological, educational, and speech and language evaluations of the Student and observed him at Landmark. On March 9, 2004, North Reading held a TEAM meeting and developed an IEP that called for placing the Student at a North Reading elementary school, in a substantially separate Primary Language Based Program ("Program") for all subjects except science, home room, art, music, and physical education. The nine students in the Program at the time of the hearing ranged in age from the Student's age to approximately two years younger. Four of them were diagnosed with a specific learning disability, four with a communication disorder, and one with a neurological disability. The Program was located in a classroom organized into several learning centers where students were divided into small groups to participate in a variety of educational activities, supervised by adult educators and para-professionals. The learning centers were physically divided by freestanding whiteboards and bookcases, and tennis balls were placed on chair legs to reduce noise. Ms. G. rejected this IEP on May 10, 2004, "pending observation of the N. Reading Language Based Class Placement."

In the meantime, the Parents had the Student tested by a second neuropsychologist, Dr. Susan Brefach, and a speech and language therapist, Ruth Margulies, in April and May, 2004. As described by the hearing officer, the "results of Dr. Brefach's testing and observations were consistent with the evaluations" of Dr. Lappen and the expert who had conducted the psychological evaluation for North Reading. Similarly, "Ms. Margulies' findings, in general, were comparable with those of prior evaluators." The parents received reports from Dr. Brefach and Ms. Margulies on June 7 and May 26, respectively. Both reports were sent to North Reading on September 16, 2004.

c. 2004-2005 School Year.

On August 20, 2004, an attorney for the Parents advised North Reading by letter that the Parents "intend to enroll [Student] at Landmark for the 2004-2005 school year," that the Parents "will be seeking reimbursement for all costs associated with his placement, including the cost of transportation and evaluations[, and that they would] seek reimbursement for the portion of the 2003-2004 school year in which [Student] attended the Landmark School." The attorney further stated that he intended to request a hearing with the BSEA within two weeks.

The Student began his third grade year at Landmark, and a TEAM meeting was scheduled for September 29, 2004 to review the additional evaluations that had been conducted. After several postponements at the Parents' request, a TEAM meeting was held on December 2, 2004, without the regular education science teacher. The IEP developed at this meeting contained some modifications reflective a the additional evaluations, but it did not include goals for the inclusion science class.

d. Hearing and Decision.

On October 27, 2005, the Parents filed a hearing request with the BSEA alleging that North Reading had denied the Student FAPE from June, 2003 to March, 2004 by failing to evaluate and offer him an IEP; that North Reading's IEP for the period from...