United States District Court, D. Maine
ORDER ON PLAINTIFF'S IDEA APPEAL
NANCY TORRESEN, District Judge.
P.Z., a student from York, Maine, is diagnosed with a learning disability that entitles him to receive a special education under the Individuals with Disabilities Education Act (the "IDEA"). S.Z. is P.Z.'s mother.
In the summer of 2011, before the start of P.Z.'s tenth grade school year, S.Z. removed P.Z. from York High School, a public high school administered by the York School Department (the "Department"), and placed him in Eagle Hill School in Hardwick, Massachusetts, a private residential school for students with learning disabilities. S.Z. later filed an IDEA complaint with the Maine Department of Education seeking an order requiring the Department to reimburse S.Z. for P.Z.'s tuition at Eagle Hill for the tenth and eleventh grades. In November of 2012, a Maine due process hearing officer ("DPHO") granted S.Z.'s petition.
Before the Court is the Department's suit challenging the DPHO's decision. For the reasons stated below, the Court SUSTAINS the DPHO's conclusion that the Department failed to make a free appropriate public education available to P.Z. for the tenth and eleventh grades and that S.Z. is entitled to be reimbursed for P.Z.'s tuition at Eagle Hill for those two years. The Court reaches no other issues.
I. Early Education
During the 2002-2003 school year, when P.Z. was seven years old and attending first grade, the Department determined that he suffered from a speech and language impairment and was eligible to receive special education and related services under the IDEA. R. 901, 1267. Described in greater detail below, the IDEA is a federal law which requires local school districts in states that receive federal educational funding to make a "free appropriate public education" available to all qualifying disabled children who live within their borders. Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 58 (1st Cir. 2002). Generally, the IDEA requires school officials to meet with the parents of a disabled child each year to create an "individualized education program" ("IEP") and to provide the child's education according to the IEP's terms. See 20 U.S.C. §§ 1401(9), 1412(a), 1414(d).
During the 2005-2006 school year, when P.Z. was in fourth grade, P.Z. underwent psycho-educational testing. R. 901. Based on P.Z.'s results on the Wechsler Intelligence Scale for Children-IV ("WISC-IV") assessment, examiner Daniel Scuccimarra concluded that P.Z. fell in the "average" range for perceptual reasoning and in the "low average" range for verbal comprehension, working memory, and processing speed. R. 903.
As P.Z. progressed through school, he began to have more academic difficulties. R. 1267. S.Z. spent about ninety minutes a night helping P.Z. through his homework during the 2007-2008 school year, when P.Z. was in sixth grade. R. 1267. According to S.Z., P.Z.'s "reading was awful" and his "math was horrendous." R. 1267. Notes from P.Z.'s November 16, 2007 IEP team meeting indicate that P.Z. was struggling with a wide variety of organizational tasks, including maintaining his plan book and completing his homework. R. 89. A WISC-IV assessment conducted by Kerry Hoag in January of 2008 found that P.Z.'s processing speed had fallen to the "borderline" range. R. 885.
S.Z. hired a private tutor to work with P.Z. for a couple hours a week during the summer before the 2008-2009 school year, when P.Z. entered the seventh grade. R. 1269-70. She also hired a private math tutor to work with P.Z. twice a week during the school year, for sixty to ninety minutes a session. R. 1270. Despite these efforts, seventh grade was a "disaster from day one, " according to S.Z. R. 1270. The Department's teachers demanded significantly more work of P.Z. than he could keep up with, especially in math class. R. 1270. S.Z. now spent hours a night helping P.Z. with his homework. R. 1270. His academic struggles were taking an emotional toll. At times, P.Z. would come home crying and ask his mother why his brain did not work. R. 1270.
In advance of P.Z.'s December 2008 IEP meeting, S.Z. communicated her frustrations about P.Z.'s "ongoing struggle to know and understand the expectations of his teachers and the assignments he has" with school officials. R. 126. S.Z. requested that P.Z.'s teachers provide P.Z. written instructions for his assignments and that they communicate with S.Z. about any longer projects they planned to assign. R. 126. P.Z.'s new IEP included a single general organizational goal, that P.Z. "use adaptive strategies, organization and self-advocacy skills to maintain a plan book, complete assignments, ask for help and participate in class with average success." R. 872.
In March of 2009, P.Z. took the Maine Educational Assessment and received a "does not meet standards" score in math and a "partially meets standards" score in reading. R. 131, 1271. At P.Z.'s May 2009 IEP meeting, S.Z. told IEP team members that P.Z. was still struggling. R. 870. P.Z.'s IEP team noted that P.Z. was having difficulty with "executive functioning skills for organizing information" and that his slow processing speed was making it hard for him to keep up in all his classes, particularly math. R. 871-72. Both S.Z. and P.Z.'s classroom teacher suggested P.Z. needed "significantly more support than he has received." R. 879. On P.Z.'s end-of-the-year report card, he received an F in math and D's and C's in the rest of his subjects. R. 869.
II. Eighth Grade
A. September 2009 until April 2010 IEP Meeting
According to S.Z.'s testimony, the 2009-2010 school year, when P.Z. was eighth grade, started off better. R. 1272. P.Z. had a good attitude about school and would usually come home with his assignments written down. R. 1272. S.Z. testified that she had "much better cooperation" with P.Z.'s teachers than in the past. R. 1272. For the first time, the Department introduced "Visualizing and Verbalizing" ("V & V") into P.Z.'s programming, an educational technique geared toward improving reading comprehension. R. 1291. Educator Michelle Smith provided the instruction. R. 1272. Under the V & V method, students with language comprehension disabilities are instructed in "visualiz[ing] written and oral language, " which allows them to better "grasp concepts and... retrieve them later on." R. 1360.
S.Z. continued to work with P.Z. extensively after school. R. 1272. A letter documenting P.Z.'s December 2009 IEP meeting reported that S.Z. was "very pleased with [P.Z.'s] progress this year." R. 862. S.Z. later testified that she had meant she was pleased with P.Z.'s educational team, not that she thought P.Z. was making real academic progress. R. 1272. At this meeting, the IEP team discussed P.Z.'s transition to high school but decided to postpone any final decisions until the spring. R. 861.
In March of 2010, P.Z.'s educators assessed P.Z.'s progress toward the goals listed in his IEP. R. 838. They listed his progress on his overall organizational goal- "to use adaptive strategies, organization and self-advocacy skills to maintain a plan book, complete assignments, ask for help and participate in class with average success"-as "adequate." R. 838.
On April 12, 2010, Maxene Feintuch, a speech-language pathologist employed by the Department, conducted a one-hour, in-class observation of P.Z. R. 138. She noted that P.Z. was "less organized and prepared than his classmates." R. 138. For instance, she observed, P.Z.'s "laptop was not charged, so it took a long time to get set up" and his "classmates were working and taking notes 10-15 minutes before he was." R. 138. Feintuch concluded that "difficulties with organization and attention impact [P.Z.'s] ability to listen, process information and complete tasks with success" and that P.Z. "sometimes misinterprets questions." R. 139. In her follow-up report, Feintuch offered the following recommendations:
[P.Z.] requires instruction and compensatory strategies to learn executive function skills and possibly direct support for pre-teaching, checking his work, checking his plan book, and helping him complete assignments. He needs frequent checks for understanding. He needs to learn how to attend, listen to, and interpret questions.
B. The April 2010 IEP
P.Z.'s IEP team met in April of 2010 to prepare for P.Z.'s transition to York High School. R. 835-44. The IEP developed in that meeting (the "April 2010 IEP") indicated that S.Z. "continues to have concerns with P.Z.'s organization skills, " but was "happy with the progress [that P.Z.] is making this year especially in language arts." R. 836.
The April 2010 IEP provided for P.Z. to spend eighty minutes a day in a resource room study hall and to receive speech and language services from a speech-language pathologist thirty minutes a week. R. 838-39. The team increased P.Z.'s time in what the Department classifies as "mainstream" education, as opposed to special education, from 52% to 76% of his school day. R. 840. The IEP also called for P.Z. to receive a number of "supplementary aids and services, " including in-class support during his social studies and science courses. R. 839. The IEP listed nine annual goals, three concerning reading comprehension, five concerning math, and the same organizational goal that appeared in P.Z.'s seventh and eighth grade IEPs. R. 119, 837-38, 854. The IEP also noted that P.Z.'s long-term goal was to attend a two or four-year post-secondary school, though a post-IEP meeting notice sent to S.Z. indicated that "[P.Z.] plans to attend a 4 year postsecondary school after YHS." R. 841, 846. S.Z. told school officials that she agreed with the proposed IEP. R. 1274.
The post-IEP-meeting notice the Department mailed to S.Z. also sketched out P.Z.'s freshmen year schedule. R. 846. The IEP team agreed that the Department should enroll P.Z. in general-level English and Pre-Algebra, but college prep Physical Science and Western Civilization. R. 846. At York High School, there are four tracks of classes offered to the general population of students: (1) advanced placement courses; (2) honors courses; (3) college prep courses; and (4) general-level courses. R. 1299. College prep courses move more quickly and require a higher degree of independence than general-level classes, which are "geared for slower learners who need a little bit more support." R. 1299, 1368. General-level courses are not offered in to students in their junior and senior years. R. 1299. The expectation is that all of the students in general-level courses will move into college prep courses by their junior year. R. 1299.
C. Eighth Grade Assessments, Remainder of Eighth Grade School Year, and Summer of 2010
The Department administered Northwest Evaluation Association ("NWEA") tests two times during eighth grade. The following chart shows P.Z.'s raw and percentile scores:
Fall 2009 Spring 2010 Mathematics Score 217 211 Percentile 22 9 Reading Score 200 213 Percentile 10 26 Language Score 208 219 Usage Percentile 21 43
R. 730. The Department also administered the New England Common Assessment Program ("NECAP") test in the fall, though the record indicates S.Z. did not receive P.Z.'s scores until June of 2010. R. 867, 1273. On the NECAP, P.Z. received scores of "substantially below proficient" in both reading and math. R. 867.
P.Z.'s end-of-year eighth grade report card was issued in June of 2010. R. 834. Generally, P.Z. received a mix of A's, B's, and C's, including grades in the "A" range for math for the last two-thirds of the year. R. 834. His eighth grade marks were considerably better than his marks had been for the seventh grade. R. 834, 869. P.Z.'s educators also evaluated his progress toward achieving his IEP goals. R. 844. They reported that P.Z. was "secure" in meeting his annual organizational goal. R. 843-44.
After receiving P.Z.'s NECAP scores, S.Z. concluded that the Department's efforts were not working. R. 1273. She testified that that P.Z. "was making no gains" and "wasn't learning any strategies to give him the ability to be independent...." R. 1274. S.Z. had also begun to doubt whether P.Z.'s grades accurately reflected his academic achievement. R. 1274.
During the summer of 2010, S.Z. hired an educational advocate named Lisa Sampson to help her marshal educational resources for P.Z. R. 1275. Sampson recommended S.Z. have P.Z. reevaluated. R. 1275. S.Z. hired psychologist Marilyn Engelman, Ph.D., to evaluate P.Z. R. 1275. Engelman conducted a diagnostic evaluation with P.Z. on August 27, 2010 and September 1, 2010. R. 810. Its content is discussed in greater detail below.
III. Ninth Grade
A. September 2010 until December 2010 IEP Meeting
P.Z. began classes at York High School in September of 2010, and was enrolled in the courses his IEP team had suggested, except he was placed in general Science rather than the recommended college prep Physical Science course. R. 734, 1275. The only way P.Z. could have been enrolled in college prep Physical Science is if he had also been enrolled in college prep Algebra I, but his teachers did not feel he was ready for Algebra I. R. 1275. A regular education teacher, Ms. Cyr,  taught P.Z.'s general-level Science class. R. 240, 1348. The class included seven students, all of them on IEPs. R. 240.
Special education teacher Mike Martin taught P.Z.'s general-level Pre-Algebra class, which was made up of five students, all of them on IEPs. R. 239, 1346. Regular education teacher Sarah Straz and special education teacher Carmen Lauritsen-Keegan co-taught P.Z.'s general-level English class, which included eight students, all of them on IEPs. R. 240, 1366-67. Rounding out P.Z.'s core curriculum, regular education teacher Steve Freeman instructed his college prep Western Civilization class, which included 17 students, many of whom were not on IEPs. R. 239, 1301. P.Z. was also enrolled in a number of electives, including Chorale and Computer Skills. R. 734. Ed tech Allison Zurlo attended P.Z.'s Pre-Algebra, Science and English classes, though her responsibilities during those periods included assisting not just P.Z., but also other students with IEPs. R. 1306-07.
To provide additional support for P.Z. in his classes, special education teacher Heidi Dufresne met with P.Z. for eighty minutes every other day, working one-on-one with P.Z. on his schoolwork for half of the period and working with P.Z. and two other students on V & V for the other half of the period. R. 1361. Dufresne had earlier completed a three-day course in the V & V method. P.Z. R. 1308. On the days P.Z. did not meet with Dufresne, he received eighty minutes of guided study time with an ed tech, though it is unclear from the record whether the assigned ed tech was Zurlo or Silke Brunelle.
Martin, P.Z.'s math teacher, also served as his IEP case manager. R. 1346. In that role, Martin was responsible for working with P.Z.'s other teachers to make sure they were providing the accommodations P.Z. needed and were aware of S.Z.'s concerns. R. 1346. When asked how P.Z.'s educators coordinated their efforts, Martin testified that the majority of P.Z.'s teachers had their classrooms in the same area of the school and naturally stayed in close contact with one another. R. 1350. Martin also testified that he and Cyr, the general-level Science teacher, met twice a week to ensure that Pre-Algebra and Science were taught in complimentary ways. R. 1347-48.
By October, S.Z. was again concerned that P.Z. was struggling in school, especially in Western Civilization, in which P.Z. had failed two quizzes. R. 1275. The Department had not assigned an ed tech to attend Western Civilization and, according to S.Z., P.Z. was not writing down his assignments. R. 1275, 1351. S.Z. wrote an e-mail to Freeman, the Western Civilization teacher, to express her concerns. R. 150, 1275. In his reply, Freeman wrote that P.Z. was having difficulty because "he apparently isn't reading the assignments in the text or he isn't bothering to review the questions at the end of each section he has read before we have class." R. 151. Feintuch, P.Z.'s speech-language pathologist, observed P.Z.'s Western Civilization course on October 19, 2010. R. 155. Feintuch noted that P.Z. "put his head down for a while" but was "attentive for most of the class." R. 155. In the first quarter of the year, P.Z. received an A- in English, a C in Science, an A in Pre-Algebra, a D in Western Civilization, and a B in Computer Skills. R. 734.
On November 17, 2010, Sampson, S.Z.'s educational advocate, sent Macri, the Department's special education director, a copy of the psycho-educational evaluation Engelman had prepared after assessing P.Z. at the end of the summer. R. 803-04, 810-33. Engelman's testing showed that P.Z.'s WISC-IV scores had fallen in every category since his last evaluation in January of 2008. R. 814, 885. Most dramatically, P.Z.'s processing speed score had fallen to the first percentile. R. 814. The following chart shows P.Z.'s WISC-IV scores over time:
Jan. 2006 Jan. 2008 Sept. 2010 (Scuccimarra) (Hoag) (Engelman) Verbal Standard Score 81 95 89 Comprehension Percentile 10 37 23 Qualitative low avg. avg. low avg. Perceptual Standard Score 100 98 94 Reasoning Percentile 50 45 34 Qualitative avg. avg. avg. Working Standard Score 86 99 94 Memory Percentile 18 47 34 Qualitative low avg. avg. low avg. Processing Standard Score 83 73 65 Speed Percentile 13 4 1 Qualitative low avg. borderline not specified
R. 814-15, 885, 903.
Engelman performed a number of other assessments as well, including the Woodcock-Johnson Pyscho-Educational Battery, Third Edition ("WJ-III"), the Comprehensive Test of Phonological Processing, the Grey Oral Reading Test, Fourth Edition ("GORT-4"), the Test of Reading Comprehension, Fourth Edition ("TORC-4"), and the Test of Written Language, Fourth Edition ("TOWL-4"). R. 813. She summarized her findings as follows:
.... [P.Z.'s] profile indicates that he is fluctuating between the average and low average range of cognitive ability. [P.Z.] does best with concrete materials and when material is broken down into small discrete steps. He does well when he can relate the material to his everyday life. [P.Z.] has more difficulty organizing material and understanding more abstract or inferential concepts. He does well with verbally mediated instructions, which are repeated. Processing speed is an area of significant weakness. As [P.Z.] processes information extremely slowly, he misses out on main ideas and details, especially in a classroom environment. Because of his slow processing speed and expressive and receptive language difficulties, [P.Z.] has difficulty, not only expressing his thoughts, but receptively taking in the information at a rate commensurate with his same age and grade peers. It is at these times that [P.Z.] becomes overwhelmed and somewhat anxious as [he] realizes that he is missing information.
[P.Z.]'s anxiety plays a large role in his feeling of becoming overwhelmed. At times, [P.Z.] does not read visual cues and needs verbal explanations. He has more difficulty in unstructured situations, whether they are in the academic or social realm as he does not understand the subtleties of language. Thus, [P.Z.] would do best in small classes with peers of similar cognitive abilities. [P.Z.], therefore, will do best in classes where teachers are trained and understand working with students with expressive and receptive language difficulties and learning issues. He needs placement in language-based classes where teachers are trained and certified in working with students with [P.Z.'s] profile. [P.Z.] wants to do well but has difficulty keeping up with his same age and grade peers.
Engelman recommended that P.Z. be placed in classes with a student-teacher ratio of no more than 10:1 and that he only work with teachers trained in teaching students with learning disabilities similar to his own. R. 826. Engelman also specified a number of "language-based teaching strategies" that she advised be incorporated into P.Z.'s education, including reviewing previously learned information, "pre-teaching" vocabulary and key concepts before in-class lessons, using graphic organizers and outlines, and accompanying each assignment with directions that explain the assignment's objective and break the assignment down into small, concrete tasks. R. 827.
Engelman believed that the programming called for by P.Z.'s April 2010 IEP was not adequate because it lacked consistency. R. 1183. She testified that his IEP seemed to provide "modifications or accommodations... within the classrooms" rather than the more immersive, comprehensive "language-based" approach he needed. R. 1184.
Feintuch, the Department's speech-language pathologist, again observed P.Z. on December 4, 2010, this time in an elective Computer Skills course. R. 800. In a post-observation report, Feintuch noted that P.Z. did not produce any work for the first twenty minutes of class and failed to ask for any help. R. 800. She concluded that "[w]ithout direct instruction, 1:1 attention, and help with reading, [P.Z.] withdraws and is less productive. He may not access the curriculum as fully as others." R. 800. In the final paragraph of her report, captioned "Recommendations specific to this observation, " Feintuch wrote the following:
[P.Z.] would benefit from:
instruction in reading comprehension strategies.
support in study halls to review and prepare ...