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Johnson v. Boston Public Schools

United States District Court, D. Massachusetts

August 17, 2016

NICOLE JOHNSON, Parent, and N.S., a minor, Plaintiffs,



         Plaintiff Nicole Johnson (“Plaintiff” or “Parent”), on behalf of her minor child N.S. (“Student”) seeks judicial review of a decision by the Massachusetts Bureau of Special Education Appeals (“BSEA”), in which the BSEA determined that the Individualized Education Plans (“IEPs”) and school placement proposed by Defendant Boston Public Schools (“BPS”) satisfied BPS’s obligation to offer Student a free and appropriate public education (“FAPE”), as mandated by the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq.

         Before the Court is BPS’s Motion for Summary Judgment. [ECF No. 90]. Defendant BSEA joins in the Motion. [ECF No. 128]. Plaintiff has filed an Opposition [ECF No. 101]. For the reasons set forth in this Memorandum and Order, BPS’s Motion for Summary Judgment is ALLOWED, and the decision of the BSEA is hereby AFFIRMED.

         I. BACKGROUND

         A. Statutory framework

         “A state receiving federal funds under the IDEA must offer every disabled child within its jurisdiction a FAPE in the least restrictive environment possible.” Sebastian M. v. King Philip Reg’l Sch. Dist., 685 F.3d 79, 84 (1st Cir. 2012) (citing 20 U.S.C. § 1412(a)(1), (5)). “If a state is unable to provide a disabled child with a FAPE through a public school placement, it may be obliged to subsidize the child in a private program.” Id. (citing D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 34 (1st Cir. 2012)).

         “The ‘primary vehicle’ for delivery of a FAPE is an IEP.” D.B., 675 F.3d at 34; see also D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 557 (3d Cir. 2010) (the IEP is the “‘centerpiece’ of the IDEA’s system for delivering education to disabled children”). An IEP must be “custom-tailored” to the child, see Sebastian M., 685 F.3d at 84, and “must include, ‘at a bare minimum, the child’s present level of education attainment, the short- and long-term goals for his or her education, objective criteria with which to measure progress towards those goals, and the specific services to be offered.’” Id. (quoting Lessard v. Wilton Lyndeborough Coop. Sch. Dist., 518 F.3d 18, 23 (1st Cir. 2008)). An IEP need, not, however, “furnish a disabled child with the maximum educational benefit possible.” Id. Rather, to comply with the IDEA, an IEP “need only be reasonably calculated to confer a meaningful educational benefit.” Id. (internal quotations and citation omitted).

         “To ensure the continued adequacy of a child’s IEP, the IDEA requires that it be reevaluated annually through a collaborative process that involves the child’s parents and educators.” D.B., 675 F.3d at 35. When parents are dissatisfied with their child’s IEP, they may demand an administrative hearing before a designated state educational agency. Sebastian M., 685 F.3d at 84. In Massachusetts, that agency is the BSEA. “The burden of persuasion in the resulting hearing lies with the party challenging the IEP.” D.B., 675 F.3d at 35. The final decision of the administrative hearing officer may be appealed to either a federal or state court of competent jurisdiction. Id. (citing 20 U.S.C. § 1415(i)(2)(A)).

         B. Factual and procedural background[1]

         Student was born in August 2008 and developed profound deafness as an infant. See Administrative Record (hereinafter “AR”) at 306. In December 2010, when Student was two and a half years old, he underwent surgery to receive a cochlear implant in his right ear. The implant was activated in January 2011, and Student attended periodic follow-ups for MAPping - i.e., reprogramming of the cochlear implant processors. Id. Student’s official diagnosis was bilateral auditory neuropathy (auditory dys-synchrony). Id.

         Student received early intervention services until he turned three years old, at which time he transitioned into a pre-school program at the Horace Mann School for the Deaf in Boston, Massachusetts (“Horace Mann”). Id. at 307. An evaluation performed in March 2011 showed that Student’s gross motor, social-emotional, and self-care skills were all within normal limits, but that Student’s language skills were significantly delayed. Id.

         Student also received evaluations and services at Boston Children’s Hospital. His primary providers were speech and language pathologist Denise Eng and pediatric psychologist Dr. Terrell Clark. Id. Student was evaluated on August 23, 2011, at which time his providers noted that Student communicated through vocalizations, but that he did not produce any words or word approximations during the assessment; did not appear to understand any spoken language; and did not respond to verbal requests. Id. Further, Student was not responsive to sign language, although Plaintiff (Student’s mother) reported that she had completed a Family Sign Language Program. At that time, the clinicians estimated that Student’s language was at the 20 to 21 month level. Id.

         Records from Children’s Hospital noted Student’s inconsistent attendance at scheduled MAPping appointments and follow-ups. Id. In addition, the clinicians noted that Student did not appear to be wearing his device consistently, and Plaintiff confirmed that getting Student to wear the device was a struggle. Id. The clinicians emphasized to Plaintiff that it was essential for Student to build his base of language through American Sign Language (“ASL”). They recommended that Student’s family members learn and use sign language to communicate with him, and that Student receive speech and language therapy. Id. at 307-308.

         These recommendations were echoed by Elizabeth Drake, a school psychologist at Horace Mann, when she evaluated Student on October 3, 2011. Id. at 308. She encouraged his family members to learn ASL and use it “to allow for carryover of language” into the home. Id. She also stressed the need for Student to wear his processor for longer periods of time throughout the day. Id.

         Student’s IEP Team convened for the first time on October 14, 2011, when Student was three years old. At that time, the Team found him to be eligible to receive special education services from the City of Boston through the Early Childhood Program. Id. BPS proposed an IEP for the period of October 2011 through October 2012, which included specific goals for pre-reading and writing, math, socialization and transitional skills, to be acquired through a five-day per week program. Id. at 308-309. The IEP also noted that Plaintiff’s goal was for Student to develop the skills he would need to be mainstreamed, preferably into a parochial school. Id. at 308. The 2011-2012 IEP called for Student’s participation in a substantially separate classroom taught by a teacher of the deaf. Id. It provided for instruction in both American Sign Language and Spoken English. Id. at 308-309.

         In accordance with the IEP, Student participated in BPS’ pre-school program at Horace Mann during the 2011-2012 school year. Id. at 309.

         In December 2011, Student’s outside therapist at Children’s Hospital stopped seeing Student for outside therapy, reportedly because Student’s attendance at appointments was inconsistent, and because of difficulties communicating with Student’s family. Id. at 310.

         The Student’s IEP Team reconvened in November 2012. They noted that while Student had made some gains during the previous year, his language skills remained significantly delayed for his age. Id. at 309. The Team recommended that for the 2012-2013 year, Student continue to receive instruction in Sign-Supported English, with ASL as needed for comprehension. Id. The Team also recommended that Student continue to participate in the Early Childhood Program, and BPS offered Student participation in a substantially separate Kindergarten 1 program at Horace Mann. Id. at 310.

         In December 2012, Student’s classroom teachers reported that Student had made some progress. Specifically, he was able to sign several words spontaneously, to name his teacher and several classmates in sign language, and to label and ask questions using simple words, or non-verbally. Id. He also imitated single words in sign and attempted to approximate speech in an effort to communicate. Id.

         In January 2013, when Student was four and a half years old. Dr. Clark at Children’s Hospital conducted a follow-up assessment, in which he noted that although Student was using his voice intentionally, he was not yet speaking using clearly articulated speech. Id. at 310-11. Student did, however, use gestures and signing, producing seven spontaneous/independent signs during the evaluation. Id. Dr. Clark observed that Student’s clearest form of communication was though signing. Id. at 310. Dr. Clark opined that “[c]ontinued use of signing is essential for [Student’s] development of linguistic competence, ” and that signing would “serve as a bridge to comprehension of sounds and spoken language.” Id. at 311, 411. The report further noted Dr. Clark’s concern that Student was not wearing his processor on a full-time, daily basis. Id. at 311, 410-11.

         On or about April 8, 2013, Student’s Team reconvened at Plaintiff’s request, to discuss Student’s language of instruction. Id. at 311-12. Plaintiff communicated her desire that Student not be educated in ASL. Id. Instead, Plaintiff wished for Student to be instructed in Sign Supported Spoken English only. Id. at 312, 405. Although the Team discussed their concerns regarding Plaintiff’s preference, they ultimately acquiesced to Plaintiff’s request and updated Student’s IEP. Id.

         On or about June 21, 2013, Student lost his speech processor device, which was not replaced until approximately five months later. Id. at 312. Email communications amongst Plaintiff, Student’s classroom teachers, staff at Horace Mann, and staff at Children’s Hospital during this period note the difficulties associated with Student’s inconsistent use of the processor, loss of his processor, efforts to obtain a replacement, Student’s missing appointments, and some difficulties communicating with his family. Id. at 312.

         Student’s academic progress reports for the period ending June 2013 noted that Student was making slow progress, but his IEP Team nonetheless recommended that Student repeat his kindergarten year. Id. Plaintiff declined this recommendation and asked that Student be promoted. Id. Plaintiff also expressed that she did not want Student in classes with peers who used ASL or who had other, non-hearing-related disabilities. Id. at 312, 476.

         In September and October 2013, Plaintiff expressed her dissatisfaction with Boston’s program at Horace Mann, because Student had not yet developed Spoken English. Id. at 313-14. On September 16, 2013, Plaintiff met with Student’s Team for a mediation meeting. Id. at 313, 430. Student’s Team recommended that Student participate in an extra unscheduled evaluation to reassess his progress. Id. Plaintiff consented to a speech and language evaluation, a classroom observation, and a psychological assessment. She specifically rejected a home assessment, a health assessment, and an OT evaluation. Id. at 313, 430-31.

         Marci Goldowski, a Speech and Language Pathologist at Horace Mann, performed Student’s speech and language evaluation on October 7, 9, and 11, 2013. Id. at 314. To assess Student’s comprehension through residual hearing, part of the testing was performed in Spoken English, without the benefit of amplification. Id.. Ms. Goldowski assessed Student’s receptive language skills and concluded that when given single word signs, Student was able to understand vocabulary words as well as his hearing peers, but that his ability to understand spoken English without his processor was minimal. Id. at 315. This was in contrast to Plaintiff’s reports to Ms. Goldowski, which stated that Student was able to hear and communicate in spoken English without wearing his processor. Id. When Ms. Goldowski assessed Student’s receptive language abilities using Sign Supported Spoken English, also without the use of Student’s processor, he demonstrated an ability to understand negatives in sentences, make inferences, understand the use of objects, and follow commands without the use of gestural cues. Id. He also demonstrated ability to understand some higher-level academic skills such as identifying colors and letters and understanding number concepts. Id. Ms. Goldowski remarked that Student’s performance suggested that his ability to understand unconnected language was emerging. Id. Ms. Goldowski also tested Student’s expressive language abilities without his processor. Student provided most of his answers by using vocalizations accompanied by a sign. Id. Ms. Goldowski noted, however, that Student’s scores on these tests showed that he fell below the mean, indicating impairments in his ability to express himself in sign or Spoken English. Id. at 315-316. Overall, Ms. Goldowski found Student’s language skills to be significantly delayed, and she recommended that instruction continue to be delivered in Spoken English and Sign Supported English. She further stressed the importance of Student using his processor during all waking hours. Id. at 316.

         Psychologist Liz Drake conducted the Student’s psychological evaluation on October 16 and 17, 2013. Id. at 316-17. Her assessments suggested that Student’s expressive and receptive abilities were stronger in sign-supported English, but that they were still significantly delayed. Id. From a social emotional standpoint, Student had improved his social interactions with peers, but he continued to have a low frustration tolerance level. Id. Ms. Drake noted that he would benefit from developing vocabulary to express his emotions, and she opined that it was essential for Student to be exposed to sign language in addition to Spoken English. Id. This recommendation was also echoed by Melissa Brown, who administered Achievement testing on October 17, 2013. Id. at 317.

         Student’s IEP Team reconvened on October 23, 2013 to discuss the results of his evaluations and develop an updated IEP for the 2013-2014 year. Id. at 318. The October 2013 IEP offered Student continued participation in a substantially separate day program at Horace Mann, with direct services as follows: thirty minutes per day, four times per week of communication skills with a speech and language therapist; communication skills 90 minutes daily; reading and writing skills 90 minutes daily; 80 minutes daily math skills (all taught by a teacher of the deaf); and 30 minutes of occupational therapy twice per week. The IEP also offered the use of an FM system to be used with Student’s cochlear implant processor. Id. at 318-319.

         Plaintiff, however, rejected the proposed program and placement set forth in the 2013-2014 IEP, stating that she was dissatisfied with Student’s progress, and that she wanted Student to be in a class of peers without disabilities other than hearing loss. Id. at 319; 476, 712-713. Plaintiff also blamed BPS for losing Student’s processor ...

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