COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In re: Ann1 v. Springfield Public Schools
BSEA# 06-1175
DECISION
This decision is rendered pursuant to M.G.L. Chapters 30A and 71B; 20 U.S.C. §1400 et seq.; 29 U.S.C. §794; and the regulations promulgated under each of these statutes.
A hearing in the above-entitled matter was held on May 10, 2006 and August 22, 2006 at Catuogno Court Reporting in Worcester, MA. The record remained open for receipt of written final arguments until September 11, 2006.
Those in attendance were:
Mother
Father
Robert Kemper Psycholinguist
David Drake Headmaster, White Oak School
Derek Beaulieu Attorney for Parents
Sandra Hill Director of Special Education, Springfield Public Schools (SPS)
Luciano Valles Supervisor of Speech-Language-Hearing-Vision, SPS
Patricia Lynch Evaluation Team Leader, SPS
Donna Carlson Special Education Teacher, SPS
Rebecca Lauterbach Regular Education Teacher, SPS
Patricia Valoris Special Education Tutorial Teacher, SPS
Avalida Munera Principal, SPS
Susan Fino Director, Learning Styles
Regina Williams Tate Attorney for SPS
Raymond Oliver Hearing Officer, Bureau of Special Education Appeals
The evidence consisted of Parents’ Exhibits labeled P-1 through P-17 excluding P-10; Springfield Public Schools’ Exhibits labeled S-1 through S-37; and approximately 6 ½ hours of oral testimony.
HISTORY/STATEMENT OF THE CASE
Ann is an eleven year old girl who resides with her Parents in Springfield, MA. From kindergarten through grade 4 Ann attended the Zanetti Montessori School (Zanetti) a public school program within the Springfield Public Schools (SPS). Zanetti is a SPS magnet school which was specifically requested by Parents. (See testimony, Mother.)
In December 2001 (first grade) Ann was referred for a speech/language screening. Direct speech/language services were recommended to remediate an interdental lisp which affected certain sounds (S-36). A 504 plan was developed in February 2002 providing for small group direct speech therapy for 30 minutes, twice per week which was accepted by Parents (S-34). In April 2002 Parents requested a team evaluation (testimony, Mother; S-1). In April 2002 SPS performed an educational status assessment (S-31); in May 2002 a psychological evaluation (S-29); and in June 2002 an educational evaluation (S-28). A speech-language evaluation was performed at the Weldon Center in November 2002 (S-26). Based upon these evaluations SPS found Ann not eligible for special education in January 2003 (S-1, 30) but in June 2003 continued her 504 plan which was accepted by Parents (S-19).
On April 29, 2003 Parents requested an independent evaluation at the Curtis Blake Center (S-21) which was approved by SPS in May 2003 (S-20). Parents did not contact the Curtis Blake Center (CBC) until the fall of 2003; testing did not take place until April 2004 due to a waiting list at CBC; and SPS did not receive the results of this independent evaluation until June 2004. (See testimony, Mother; S-1.) The CBC psychoeducational evaluation (P-7; S-17) was considered at a June 16, 2004 team meeting and SPS again found Ann not eligible for special education but continued Ann under a 504 plan (testimony, Mother; S-1, 18).
In October 2004 Parents had Ann privately evaluated by Dr. Robert Kemper. Dr. Kemper’s psycholinguistic evaluation (P-8) was shared with SPS and a team meeting was held on January 19, 2005 (S-1). SPS found Ann eligible for special education and developed an individual education plan (IEP) covering January 2005 to January 2006 (P-2; S-15). Under this IEP, accepted by Parents on February 3, 2005, Ann received her English/language arts within an inclusion setting (in her classroom), team taught by her regular education teacher and a special education inclusion teacher. Under this IEP Ann also received “pull out” special education services of speech-language therapy for one hour weekly and a 1:1 reading tutorial for one hour weekly. (See P-2; S-15; testimony, Carlson; Fino; Lauterback; Valles; Lynch.) Additionally, although not specifically delineated on her IEP, from February to April 2005 Ann received small group reading services from Zanetti’s reading specialist in another inclusion classroom for three thirty to forty-five minute periods per week (testimony, Carlson; Lauterback).
On April 15, 2005 Mother requested a team meeting (S-10) which was held on June 14 and June 21, 2005 to accommodate Ann’s various service providers. A new IEP was developed which covered September 2005 to September 2006 (P-5; S-3). Under this IEP Ann would receive daily English/language arts and daily mathematics within a general education inclusion classroom at Zanetti, taught by the regular education and/or the special education inclusion teacher. Pull out services would include speech-language therapy for forty-five minutes twice per week and a 1:1 reading tutorial with a reading tutor for one hour, three periods per week. (See P-5; S-1, 3.)
On August 12, 2005 Parents rejected SPS’ proposed 9/05 to 9/06 IEP and placement for Ann. On August 30, 2005 Parents’ attorney filed for a hearing before the BSEA requesting an out-of-district placement for Ann at White Oak School (White Oak) and a hearing was scheduled for October 4, 2005. Ann has attended White Oak, a Massachusetts Department of Education (MDOE) approved private day school for special education students, during the entire 2005-2006 school year. Numerous preliminary matters/motions were raised and several pre-hearing conferences and motions sessions were held. On January 3, 2006 the Hearing Officer issued a Ruling On Parents’ Motion For Default Judgment And Order For Stay Put (at White Oak) denying said Motions. (For procedural history and analysis please refer to this 1/3/06 Ruling.) By agreement of the parties this case was scheduled to be heard in April 2006. Later, by agreement of the parties, this case was scheduled to be heard in May and early June 2006. The first date of hearing took place on May 10, 2006. Unforeseeable personal circumstances led to the final date of this hearing being held on August 22, 2006.
ISSUES IN DISPUTE
I. Did SPS’ proposed 9/05 – 9/06 IEP for Ann at Zanetti appropriately address her special education needs so as to provide her with a free and appropriate public education (FAPE) in the least restrictive educational environment?
II. If not, was Ann’s placement at White Oak for the 2005-2006 school year an appropriate placement to address her special education needs so as to provide her with FAPE in the least restrictive educational environment?
STATEMENT OF POSITIONS
Parents’ position is that SPS’ proposed 9/05 – 9/06 IEP at Zanetti was inappropriate to address Ann’s special education needs so as to provide her with FAPE in the least restrictive educational environment. Parents contend that Ann required an out-of-district private day school placement at White Oak in order to receive FAPE in the least restrictive educational environment.
SPS’ position is that its proposed 9/05 – 9/06 IEP at Zanetti was appropriate to address Ann’s special education needs so as to provide her with FAPE in the least restrictive educational environment. SPS contends that Ann does not required the restrictiveness of an out-of-district private day school placement in order to provide her with FAPE.
STIPULATION
At the conclusion of the first day of hearing on May 10, 2006 the parties entered into the following Stipulation:
1. In the event that the Hearing Officer determines for the 2005-2006 school year [Ann] required an out of district placement in a language based program in order to receive FAPE, White Oak was/is an appropriate placement.
2. The IEP(s) drafted by White Oak, Parents Exhibit 16, accurately describes the program White Oak has provided/is providing to [Ann] during the 2005-2006 school year.
In light of the above stipulation no testimony or additional exhibits were introduced into evidence regarding White Oak or its appropriateness as a placement for Ann.
PROFILE OF STUDENT
Ann has been quite extensively evaluated via SPS, independent evaluation, and private evaluation. SPS evaluations were administered in the spring of 2002. In May 2006 Licensed Educational Psychologist Dr. Joel Levine performed a psychological evaluation (S-29). On the Wechster Intelligence Scale for Children -3 rd Edition (WISC-III), Ann received a Verbal IQ of 126; a Performance IQ of 119; and a Full Scale IQ of 125. These scores place Ann within the Bright Average range of cognitive ability. On the Wide Range Assessment of Memory and Learning (WRAML) Ann received an average score in the processing and retention of verbal and visual information. On the Developmental Test of Visual Motion Integration (VMI) Ann achieved an average score in visual perception and graphomotor competence. On the Wechster Individual Achievement Test (WIAT) Ann, then at a 1.8 actual grade level, achieved a Basic Reading Score of K.9; Math Reasoning Score of 1.8 and a Spelling Score of 1.9. (See S-29 for full evaluation.) On the Woodcock Reading Mastery Test-Revised (WRMT-R) administered in June 2002 (S-28) Ann, then at a 6 year 11 month age level (al) and a 1.9 actual grade level (gl) achieved the following cluster scores:
Reading Cluster Area – A.L. Score – G.L. Score – Range
Reading Readiness 6.10 1.4 Average
Basic Skills 7.3 1.7 Average
Reading Comprehension 6.9 1.1 Average
Total Reading 7.0 1.4 Average
Ann fell within the average range of every reading skill area/subject area tested by the WRMT-R, with an overall performance in the average range. (See S-28 for complete WRMT-R results.)
In November 2002 a speech-language evaluation was performed at the Weldon Center (S-26). On the Clinical Evaluation of Language Fundamentals-3 rd Edition (CELF-3) Ann achieved average receptive language scores, average expressive language scores and overall language skills to be within the average range (higher end). Ann was 7 years 4 months old when the CELF-3 was administered. Her total language equivalent on the CELF-3 was 8 years 4 months. Ann continued to demonstrate mild-moderate speech production difficulties. (See S-26 for complete speech-language evaluation.)
In April 2004 Ann was independently evaluated at CBC via a psycho-educational evaluation (P-7; S-17). On the WIAT Ann, then at a 3.7 grade level, received the following grade level (gl) scores on the following areas tested:
Area Tested – G.L. Score
Reading
Word Reading 2.7
Word Attack (Pseudoword Decoding) 2.9
Spelling 2.8
Mathematics
Math Reasoning 4.2
Numerical Operations 3.2
Based upon the Peabody Picture Vocabulary Test- 3 rd Edition (PPVT-III) and the Expressive One Word Picture Vocabulary Test-Revised (EOPVT-R) Ann’s receptive and expressive language functioning fell within the average to above average range.
Overall, CBC found Ann to be a bright girl with superior verbal skills and high average non-verbal abilities. CBC found that while Ann’s overall understanding and comprehension of the material was quite good, she evidenced phonological processing problems and that her decoding was slow and inefficient which impacted upon her slower reading rate and fluency. CBC’s testing was consistent with a diagnosis of mild dyslexia/mild language based learning disability related to phonological processing impairment. (See P-7; S-17 for complete CBC psycho-educational evaluation.)
In October 2004 Ann was administered a private psycholinguistic evaluation by Dr. Robert Kemper (P-8). Dr. Kemper administered a variety of language, reading, and written expression tests. On receptive and expressive language testing Ann achieved primarily average scores with some above average, some low average and some below average. On reading and written language abilities, Ann achieved primarily average and low average scores with some areas below average. Ann’s spelling was average. Dr. Kemper found Ann to present with a speech-language impairment which resulted in a reduced ability to process and express oral and written information. Dr. Kemper recommended direct, systematic instruction in areas of deficit and an individual tutorial three times per week. (See P-8 for complete Kemper evaluation.)
PARENTS’ PROPOSED PROGRAM
Parents proposed that White Oak was the FAPE/least restrictive educational environment for Ann’s placement for the 2005-2006 school year and that SPS be ordered to fund said placement at White Oak. White Oak is an MDOE approval private day school for special education students.
See STIPULATION , above.
SCHOOL’S PROPOSED PROGRAM
SPS proposed that Ann continue to be educated at Zanetti for the 2005-2006 school year, Ann’s fifth grade year. Under the proposed 9/05-9/06 IEP (P-5; S-3) Ann would receive daily English/language arts and daily mathematics within the general inclusion classroom setting at Zanetti, taught by the special education inclusion teacher and/or the regular education teacher. Special education services provided outside of the classroom include speech-language therapy twice weekly for forty-five minutes each session with the speech language pathologist; and a 1:1 tutorial three times per week for one hour each session with a reading teacher/tutor. Additionally, the tutor would provide one hour of consultation monthly to the Zanetti staff working with Ann. Primary areas addressed would be Ann’s reading skills, math skills and organizational skills.
Ms. Lauterback, Ann’s regular education classroom teacher, has a bachelor’s degree in English, an M. Ed. in creative solutions, and an M. Ed. in the Montessori method. Ms. Lauterback’s Montessori class consists of fourth, fifth and sixth grade students in the inclusion classroom, consisting of role model students and special education students. Ms. Lauterback has been teaching this classroom at Zanetti for eight years. Ms. Carlson, Ann’s special education inclusion teacher, has taught at Zanetti for the last six years. She is certified in moderate special needs grades 1-9 and elementary education grades 1-6. Ms. Goodwin, Ann’s’ tutor, is a certified elementary education teacher who is skilled in phonics and is trained in Phonographix, a program to teach decoding and phonics to students with dyslexia/reading problems. Ms. Goodwin is employed by Learning Styles which provides tutoring, training and consultation for school systems and students. Ms. Goodwin is supervised by Susan Fino of Learning Styles, who has a bachelor’s and master’s degrees in elementary education; a CAGS in special education; and is certified in elementary education and moderate special needs. Ms. Fino has been trained in various reading methodolgies such as Wilson and Lindamood-Bell and is a trainer in the Phonographix methodogy for teaching decoding.
(See testimony, Lauterback, Carlson; Fino; P-5; S-3.)
FINDINGS AND CONCLUSIONS
It is undisputed by the parties and confirmed by the evidence presented that Ann is a student with special education needs as defined under state and federal statutes and regulations. The fundamental issues in dispute are listed under ISSUES IN DISPUTE , above.
Based upon two days of oral testimony, the documents introduced into evidence, and a review of the applable law, I concluded that:
I. SPS’ proposed 9/05 to 9/06 IEP is appropriate to address Ann’s special education needs so as to provide her with FAPE in the least restrictive educational environment;
II. Parents have failed to prove the necessity for an out of district, private day school placement in order to address Ann’s special education needs so as to provide her with FAPE in the least restrictive educational environment.
My analysis follows:
The United States Supreme Court in Schaffer v. Weast 44 IDELR 150 (2005) has held that the burden of proof is on the party seeking to change the proposed IEP and placement. Therefore, in this case, Parents bear the burden of proving that SPS’ proposed IEP is inappropriate to address Ann’s special education needs so as to provide her with FAPE in the least restrictive educational environment. Based upon the evidence presented, Parents clearly have not met that burden.
Based upon the SPS evaluation, the independent CBC evaluation, and the private Kemper evaluation (See PROFILE OF STUDENT , above) Ann is a bright-average girl cognitively, who functions on an average or above average level in many areas of reading, language and math functioning. Indeed, the CBC independent evaluation found Ann to be a bright girl with average to superior skills; to have a good overall understanding and comprehension of materials presented; but also to have phonological processing problems which resulted in inefficient decoding and a slower reading rate/fluency rate. The CBC evaluation specifically referred to Ann’s difficulties as being “consistent with a diagnosis of mild dyslexia related to phonological processing impairment” (P-7/S-17 p. 10) and that “she presents with a testing profile that is consistent with the diagnosis of a mild language based learning disability or Dyslexia” (P-7/S-17 p.18). I conclude that Ann’s cognitive, academic and speech/language profile demonstrate that she is a student who should be able to be appropriately educated within a public school educational setting with appropriate special education services and assistance, and be able to access the regular education curriculum in a regular education classroom environment.
I conclude that SPS’ proposed 9/05-9/06 IEP was appropriate to address Ann’s special education needs so as to provide her with FAPE in the least restrictive educational environment. Based upon the evidence presented, I find that Ann has made demonstrable progress within SPS, especially since the implementation of her initial IEP (P-2; S-15) in January 2005.
First, in the spring of 2004 (end of grade 3) Ann took the MCAS. Her reading score, although deemed proficient, was basically on the line between needs improvement and proficient. In the spring of 2005 (end of grade 4) Ann again took the MCAS and her English/Language Arts score was in the high end of the proficient range (S-37).
Second, on the WIAT Word Reading Test administered to Ann by CBC in April 2004 when Ann was at a 3.7 grade level, Ann achieved a grade equivalent score of 2.7 (P-7; S-17). On the WIAT Word Reading Test administered to Ann by Ms. Fino in June 2005 when Ann was at a 4.9 grade level, Ann achieved a grade equivalent score of 4.6 (S-8). Thus, over an approximately one year period (which included fifteen one hour 1:1 tutorial sessions once per week from February to June 2005 with Ms. Goodwin of Learning Styles), Ann improved nearly two years in her ability to read words. (See also testimony, Fino.)
Third, the reports of Learning Styles from Ms. Goodwin and Ms. Fino from Ann’s initial assessment on February 8, 2005 (S-12, 13); to a progress report on April 18, 2005 (P-3); to the final progress report and testing in June 2005 (S-8); illustrate good progress in the areas addressed by the tutoring sessions provided to Ann via SPS’ initial IEP. (See also, testimony, Fino.)
Fourth, on the Developmental Reading Assessment (DRA) administered to Ann on June 8, 2005 at the end of her fourth grade year, Ann achieved a DRA total score of 84 which placed her at the DRA Stage of Advancing-Intermediate and at a fifth grade reading level (S-7; testimony, Carlson). Thus, at the end of fourth grade in June 2005 Ann was functioning at a fifth grade reading level as measured by this test.
In summary, I find that under her existing, initial IEP (P-2; S-15) Ann had made clearly demonstrable progress. The proposed IEP for 9/05-9/06 in dispute (P-5; S-3) provides for an increase in Ann’s level of special education services, increasing her 1:1 tutorial time from one hour to three hours per week; her speech language therapy from one hour to 1 ½ hours per week; plus increased special education services in math within the classroom setting. (See SCHOOL’S PROPOSED PROGRAM , above.) Given Ann’s progress under her initial IEP with a lesser degree of special education services and which had only been in effect for five months, I conclude that Ann would have continued to make substantial progress under an IEP providing a greater level of special education services within the Zanetti public school environment, allowing Ann to continue to access the regular education curriculum. Based upon the evidence cited above, I concluded that SPS’ proposed 9/05 to 9/06 IEP is clearly appropriate to address
Ann’s special education needs so as to provide her with FAPE in the least restrictive education environment.
I find Parents’ testimony and argument that SPS’ proposed IEP improperly expands the focus of remediation to Ann’s math skills and organizational skills instead of concentrating on just her reading skills to be quite incredible. Based upon the evidence presented, Ann’s reading skills have been improving very well. Areas of difficulty in math and organizational skills have been observed by her regular education teacher, special education inclusion teacher, and tutor during the 2004-2005 school year. (See testimony, Lauterback; Carlson; Fino; P-3; S-8.) Additionally, on the spring 2005 MCAS, Ann’s math score fell within the needs improvement range (S-37). Parents’ criticism of SPS’ proposed 9/05-9/06 IEP for responding to observed/documented areas of need for Ann, especially given that the White Oak IEP for the 2005-2006 school year (S-16) has numerous references to Ann’s organizational and math difficulties and goals to address these deficits I find to be disingenuous at best. This is particularly so when on May 31, 2005 – two to three weeks prior to the team meeting that would develop SPS’ proposed 9/05-9/06 IEP for Ann, and at least one month prior to even seeing SPS’ proposed 9/05-9/06 IEP for Ann – Mother wrote to her attorney stating (P-9): “I want Ann to go to White Oak for a proper education.”
II.
I find it rather extraordinary that Parents have presented no expert evidence, either via written exhibit or oral testimony, that Ann requires an out of district placement or private special education day school placement in order to address her special education needs. Neither the independent evaluation performed by CBC (P-7; S-17); nor the private evaluation of Dr. Kemper (P-8); nor the testimony of Dr. Kemper at this hearing; stated or recommended that Ann required an out of district private day school placement or even a substantially separate special education program within a public school environment in order to address her special education needs. Other than Mother’s testimony, no evidence was presented that Ann required an out of district placement in a program such as White Oak.
ORDER
I. SPS’ proposed 9/05-9/06 IEP is appropriate to address Ann’s special education needs so as to provide her with FAPE in the least restrictive educational environment.
II. SPS is not financially responsible for Ann’s placement at White Oak.
By the Hearing Officer,
__________________________
Dated: October 5, 2006
Raymond A. Oliver
1
Ann is pseudonym chosen by the Hearing Officer to protect the privacy of the Student in publicly available documents.