United States District Court, D. Massachusetts
ORDER ON DEFENDANTS’ MOTION FOR SUMMARY
ALLISON D. BURROUGHS, U.S. DISTRICT JUDGE.
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.
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.
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)).
‘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).
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. §
Factual and procedural background
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
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.
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.
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.
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.
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.
accordance with the IEP, Student participated in BPS’
pre-school program at Horace Mann during the 2011-2012 school
year. Id. at 309.
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
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.
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.
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,
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.
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.
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.
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.
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.
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.
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.
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 ...