Austin v. Brookline Public Schools – BSEA #02-3847



<br /> Austin v. Brookline Public Schools – BSEA #02-3847<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

BSEA# 02-3847

IN RE: Austin1 v Brookline Public Schools

DECISION

This decision is issued pursuant to M.G.L. c.71B and 30A, 20 U.S.C.§1401 et seq ., 29 U.S.C. §794, and the corresponding regulations. A hearing was held on November 19-20, 2002 at the Brookline Town Hall, Brookline, MA.

Those present for all or part of the hearing were:

Lisa Brady Maternal Aunt/Advocate for Parents

Mother

Father

Student

Robert Weaver, Ph.D. Director, Weaver Clinic, Weston, MA.

Robert Kemper, Ph.D. Director, Psycholingistic Associates, Inc., Haverhill, MA

Ruth Arnold, MS. CCC Speech/Language Pathologist; Brookline Public Schools

Todd Curtis, Ed.M. Special Education Teacher, Brookline Public Schools

Mildred Katzman, M.Ed. Principal, Heath School, Brookline Public Schools

John Abramson Special Education Director, Brookline Public Schools

Joslin Ham Murphy, Esq. Attorney; Brookline Public Schools

Joan Beron, Esq. Hearing Officer, BSEA

The official record of the hearing consists of Parent Exhibits marked P1-562 and School Exhibits marked S1-20 and approximately eleven hours of recorded oral testimony. The record closed on December 27, 2002 when the Hearing Officer received written closing documents and arguments from both Parties.3

I. PROCEDURAL HISTORY

Parents filed a hearing request on April 8, 2002 regarding Brookline’s denial of extended school year services (ESY) at the Weaver Clinic for Student and issues regarding grading of Student’s homework.4 Prehearings were conducted on May 21, 2001, June 20, 2001 and July 1, 2002. Parents requested that the ESY services issue be consolidated with issues regarding payment for an evaluation by Dr. Kemper and issues regarding implementation of Student’s reading services agreed to in Student’s last accepted IEP. A TEAM meeting was held on September 11, 2002 to review Dr. Kemper’s evaluation and consider Parents’ prehearing recommendations for additional writing support, inclusion of self-advocacy goals, psychological services and teacher in-service training and revision of goals and objectives in the IEP. The TEAM agreed to include additional writing support, self-advocacy goals and psychological services but was unable to agree that Student’s teachers required in-service training from Dr. Weaver or that individual goals should be measured by standardized testing. The TEAM was also unable to agree that Student required the Lindamood-Bell LIPS program. On September 28, 2002 Parents rejected the IEP and requested that these rejected issues be consolidated with the Parents’ original hearing request. Brookline assented to these requests. Hearing dates were mutually set for October 28-29, 2002. On October 10, 2002 Brookline requested a postponement. The motion was granted over the Parents’ objection to allow both Parties to receive and review discovery information that had not been sent. Hearing dates were set for November 19-20, 2002. On November 8, 2002 Parent’s moved to have issues regarding procedural violations and issues regarding retaliation heard at the November 19-20, 2002 hearing. The Hearing Officer issued a ruling5 allowing both issues and the hearing proceeded on November 19-20, 2002. 6

ISSUES

I. Did Brookline fail to implement Student’s last agreed upon reading services during September 2001-January 2002, and give Student access to assistive technology thus entitling Student to compensatory education services?

II. Does Student require ESY services to receive a free appropriate public education (FAPE) in the least restrictive environment (LRE)?

If so, does Student require ESY services from the Weaver Clinic to receive a FAPE?

Did Brookline fail to send out prior written notice when they denied ESY services to Student?

If so, did this procedural violation result in a denial of a FAPE to Student?

III. Does Student’s IEP need to be revised to include measurable goals, objectives and benchmarks, in-service training, and measurement of progress through standardized testing to achieve a FAPE in the LRE?

IV. Does Student have, in addition to his nonverbal learning disability (NLD), a language-based learning disability affecting his reading comprehension? If so, should Student receive the Lindamood-Bell Lips program twice per week and individual reading and writing tutorial services as recommended by Dr. Kemper?

V. Did Brookline allow Parents to participate in the September 11, 2002 TEAM meeting and/or did Brookline fail to use a variety of assessment tools to evaluate Student?7

If Brookline did commit procedural violations, did those procedural violations deny Student a FAPE?

VI. Did Student’s speech/language pathologist (SLP), special education teacher, principal and other TEAM members engage in a pattern of retaliatory actions against Parents and Student for bringing this special education appeal, resulting in a failure to appropriately implement Student’s IEP? If so, should Student’s TEAM be made up of different TEAM members?8

PARENTS’ POSITION

Student is a 7 th grader with serious executive functioning deficits, writing deficits, ADHD and social skills deficits. Dr. Kemper also found that Student has reading comprehension and spelling problems and requires the Lindamood-Bell auditory conceptualization program in his IEP. Brookline has not drafted an IEP that contains measurable goals and objectives, nor does it require standardized testing to measure Student’s progress towards these goals. The IEP does not include Dr. Kemper’s recommendations for the Lindamood-Bell program twice per week, or his recommendation for individual reading and writing tutorial services, nor does it contain the ESY services from the Weaver Clinic that Student requires to prevent regression. Therefore Brookline should reimburse Parents for these services. Brookline has also not implemented Student’s reading services nor evaluated Student in a timely manner nor used a variety of assessments in their evaluation. Therefore Student is entitled to 175 hours of compensatory services. In addition, this TEAM has not allowed the Parents to participate in TEAM meetings and has retaliated against the family for advocating for Student. Therefore, this TEAM cannot provide the services Student needs. As such, Brookline should provide Student with other special education providers at the Heath School and should provide in-service training for its teachers in writing IEPs and additional in-service training from Dr. Weaver in dealing with children with Student’s disabilities. Finally, Parents request reimbursement for costs incurred for bringing in expert witnesses.

SCHOOL DISTRICT’S POSITION

The School District has provided Student with an appropriate IEP that addresses Student’s NLD, executive functioning deficits and social skills and writing deficits. Student does not have a language-based learning disability and does not require the Lindamood-Bell program. Individual reading and writing tutorials are also not needed and are counterproductive for Student. Student does not meet the criteria to receive ESY services and, in the alternative, if needed, has been offered and can be provided by Brookline. Student is making excellent grades and is on the honor roll and as such has made effective progress. Brookline denies that it has made procedural errors that have denied Student a FAPE and denies that it has failed to implement Student’s IEP. Therefore, Parents request for changing the Student’s TEAM and their request for amending the IEP and claim for compensatory services should be denied.

FINDINGS OF FACT

1. Student (d.o.b. June 27, 1989) is currently a 13 year old, 7 th grade student who lives with his parents and six year old brother in Brookline, Massachusetts. Student attends the Heath School in the Chestnut Hill section of Brookline (Mother). Student is very bright. Cognitive testing done in 5 th grade shows that Student has verbal scores at least in the 99.9 percentile (WISC III verbal IQ 146) and performance scores in the 45 th percentile (WISC III performance score 98) (Weaver).9 Testing also shows that Student has nonverbal learning disabilities (NLD), executive functioning deficits and Attention Deficit Disorder without hyperactivity (ADD). As a result of these disabilities, Student has trouble organizing and prioritizing information and especially has difficulty organizing his writing, completing and turning in homework and other difficulty with time management. Student also displays fine-motor and visual motor processing deficits which affect his handwriting and processing of information and impaired performances on tasks involving motor functions (Mother, Father, Weaver, P25). When Student is tested on tasks involving complex higher mental abilities where motor components were not a significant factor, Student’s performances were routinely superior (S8, Weaver, Arnold). Student also has problems sustaining attention for long tasks and problems with word retrieval. In addition, Student has difficulty understanding social cues and drawing inferences in social situations and in his writing and often displays impulsivity, rigidity in his mental flexibility and poor ability to focus on the “big picture” instead of focusing on less important details (Weaver). Student also has extremely high standards and is very hard on himself when he makes mistakes (Weaver, S8). He often has trouble accepting help that would be beneficial to him (Weaver, see also S1). Student’s mother, her identical twin sister (Maternal Aunt), Student’s brother and maternal grandfather also display similar disabilities to Student (Mother). Student’s maternal aunt also has a child diagnosed with Asperger’s Syndrome and another child diagnosed with Pervasive Developmental Disorder (PDD). Both of these children receive special education services in New Hampshire (Mother, P25, P53).

2. Student did relatively well in school until 4 th grade (School Year 99-00) attending gifted classes at the Heath School (Mother, Father). In 4 th grade Student had a difficult year in part because his 4 th grade teacher did not understand his organizational, fine motor and pragmatic disabilities (Mother, P25). Although Student was at or above grade level during that year in most subjects, missed homework and classwork compromised his evaluations (S1). Student’s writing and spelling were below grade level especially when he was asked to spell during tests (S1, Mother). The pediatrician referred Student for nueropsychological testing at New England Medical Center. Academic testing showed Student, at the 4 th grade 4 th month to test at the 6 th grade 2 nd month in word recognition, the 6 th grade seventh month in vocabulary, the 5 th grade 4 th month in reading comprehension and the 4 th grade 5 th month in spelling (S8). Other testing confirmed organizational and writing difficulties; compare S1, Mother, Father, S8).

3. Student received no summer services prior to the summer between his 4 th and 5 th grade year (Mother). He did however receive OT services pursuant to a 504 Plan. The 504 Plan also included accommodations for the use of a word processor for written graded assignments, extra time for written work, regular homework check-in times to ensure that homework was passed in on time, and a homework check-in at day’s end to ensure appropriate daily assignments were written in assignment notebook. The 504 Plan also called for reduced written demands when appropriate (P25). During the first term of 5 th grade the majority of Student’s writing composition grades fell from a below grade level marking to a needs improvement grade; compare S1, 4 th and 5 th grade report cards; see also (P18E).10 Student also regressed in his ability to use a variety of strategies to solve math problems. Student’s other academic skills remained at the same level. Id. Fifth grade records (SY 00-01) show that Student was above grade level in math and science and had grade level performance in language arts, reference skills, computer education and social studies. Id. Iowa testing done in November 2000 without accommodation show that Student tested above the 99 th percentile in all math skills. Verbal concepts scores were at the 94 th percentile, with vocabulary, reading comprehension, capitalization and usage in the 80th percentile. Spelling and punctuation scores were in the average range (S14).

4. Student however was not able to make grade level writing expectations and continued to display major challenges in his organizational skills despite twice a week occupational therapy (OT) and an E-mate for writing (S1). During the fall of 2000, Student was missing major portions of his writing assignments and written composition was incomplete and/or unclear. Id. Student repeatedly lost his folder, and required multiple verbal reminders to complete and/or pass in his homework and follow classroom routines and was resistant to asking or accepting help with organization (S1, see also Weaver).

5. Student received a neuropychological evaluation at the Weaver Clinic during four sessions spanning from January 30, 2001-February 16, 2001 (P25, Weaver). Dr. Weaver11 diagnosed Student with very superior verbal scores (99.9+ percentile), with very superior verbal memory, knowledge, similarities and arithmetic subtests in the 99 th percentile. Student also presented with very strong decoding skills (8.3 GE) with a strong reading rate (7 th grade GE). When given structured recognition tasks Student scored in the 95 th percentile in reading comprehension (12.9 Grade equivalent) (GE) however, for reading comprehension tasks that required verbal organization and prioritizing to open-ended questions, Student only scored at the 3 rd grade 6 th month level (P25, Weaver). Student’s lowest verbal scores were those that involved his ability to organize and articulate (vocabulary) and a test of attention and concentration in repeating increasing lengths of digits in a forward and backward direction (Digit Span). The scores on these tests however were still in the superior range (91% and 84 % respectively). Id. Student did exhibit rapid word retrieval difficulties but these were largely self- corrected (P25).

Performance scores fell at the average range at the 45 th percentile. Qualitative analysis of testing showed that Student’s visual motor abilities requiring fine-motor manipulation were extremely compromised with extremely labored fine motor execution especially in writing, drawing and copying (P25). Student also showed difficulty sequencing and interpreting visual and social cues with numerous spatial and organizational difficulties and variable attention and concentration where information was more complex or uninteresting and/or required Student to use motor skills (Weaver, P25). Student’s performance was consistently and significantly compromised on all tasks requiring executive functioning skills requiring organization, planning, and prioritizing and producing information efficiently and effectively (P25, Weaver). These difficulties were particularly noted on written expressive tasks requiring organization. Qualitative analysis revealed that Student displayed off topic sentences, attention to less relevant detail and a significant degree of disorganization and spelling errors that involved inattention to detail and inattention to internal vowels or double consonant rules. Student’s grammar, capitalization and punctuation were all within normal limits. When Dr. Weaver gave Student explicit instruction regarding form, content and organizational suggestions, Student was able to produce a well-constructed story with detail with only one typographical error; see (P25).

Dr. Weaver’s projective testing showed that Student’s emotional development and self-esteem was generally within normal limits; indicating that he liked himself and believed he was smart. Student however articulated an increasing dislike for school and was frequently mad at himself for forgetting so much homework or forgetting or losing his folder. Conversely, Student was not bothered by his fine-motor difficulties. Dr. Weaver also noted that in social relationships, Student had difficulty in making friendships and difficulty in seeing subtle social cues, but that Student did have a few close friends and did enjoy social activities with them and with family members (P25, Weaver).

6. Dr. Weaver diagnosed Student with an executive functioning deficit, NLD, fine-motor execution deficits and ADD and possible adjustment difficulties and recommended that Student receive direct instruction in organization and test taking strategies, including writing strategies such as brainstorming, outlining, sequencing sentences and prioritizing. Dr. Weaver also recommended direct instruction and development of skills to more accurately understand themes, inferences and other abstract conceptualization of reading material. In addition, Dr. Weaver recommended that Student participate in a social skills development group and brief counseling to address Student’s adjustment to his learning difficulties and address Student’s tendencies toward perfectionism, his increased frustration tolerance, his self-esteem difficulties relating to his insecurities regarding organization and comparison to abilities of same age peers and resolution of emotional pain relating to negative educational experiences in 4 th grade (P25). He made no recommendations for extended year programming (Weaver, see P25).

Several modifications and accommodations were suggested including:

· use of a tape recorder, oral responses, calculators, Palm Pilots, Alpha smart computers and/or development of voice to print technology for assessment of skills other than improvement of written expression;

· opportunity to recalculate or complete work with redirection to tasks instead of grading downward for errors in attention;

· reduced homework demands that emphasize required learning

· instruction in writing and organization that break down and organize long term and complex assignments;

· access to peer or teacher notes or study guides to aid in organization;

· daily contact at the beginning and end of school regarding homework execution and management including weekly reports to Student and Parents on upcoming assignments and assignments that need to be completed or redone.

· development of a regularly scheduled communication time with teachers, parents and other professionals working with Student with use of email for additional information.

· weekly organization of Student’s folders, backpack, desk and locker.

· selection of teachers who are knowledgeable about Student’s organization, attention, and impulsive difficulties and self-esteem issues who are supportive and accommodating to his special needs.

Finally, Dr. Weaver recommended an updated OT and speech and language evaluation and medical consultation regarding attention difficulties and school meetings two to three times annually.

7. Brookline conducted an updated OT evaluation in February 2001 and recommended continuing OT for two thirty minute sessions per week in 5 th grade to address improving word processing skills, planning, organizing and bilateral integration skills (P24, S9).

8. Brookline convened the TEAM on February 27, 2001 to review the evaluation. The meeting was productive and all parties were able to express their views (Weaver). The TEAM found Student to be eligible for services and proposed an IEP for daily 20 minute academic services from the learning center staff, daily forty-five minute reading support and daily 30 minute writing support services from the Learning Center staff or the speech/language pathologist (S6). Student would also receive two thirty-minute sessions of OT per week and fifteen minutes of consultation per week (S6). Parents accepted the IEP in part, rejecting the lack of extended year services and requesting outside OT services and additional services and accommodations (S6).

9. Student began receiving accepted services in March 2001 (Katzman). Ruth Arnold12 conducted a speech and language evaluation as recommended by Dr. Weaver (Arnold, P26, S10). Ms. Arnold’s testing confirmed that Student had strong receptive and expressive language abilities. Testing also showed that Student had difficulty with planning, efficiency and organization of speech/language that was displayed by difficulty following complex directions and understanding the main idea of a story. Ms. Arnold also agreed with Dr. Weaver that Student’s social/pragmatic language was a concern. She also agreed that Student would benefit from strategies to help him develop an awareness of tone of voice, facial expressions, gestures and body language in himself and others, and strategies to understand visual cues, to understand social situations, and the perspective of others (Arnold, P26, S10). Ms. Arnold recommended speech/language therapy, consultation and a lunch group to address language-based social pragmatic issues. She also recommended additional processing time, breaking down directions into smaller steps, a pairing of visual supports with directions and use of prewriting plans and graphic organizers (P26, S10). The accepted services were implemented in 5 th grade (Arnold, Curtis). During Student’s spring 5 th grade conference Student’s teacher reported that Student communicated his ideas eagerly in class discussions, responded to comments that other student’s made and made good inferences. Student’s writing composition, handwriting and organizational skills continued to remain a concern and he received “needs improvement” marks in those areas. (S1). Student’s homework was frequently incomplete or not brought in; however, his effort in homework increased significantly. Student also began turning in his homework unprompted on a more regular basis (S1). Student ended 5 th grade at or above grade level in all but writing. In that area Student received an “M” (P1). An “M” marking stands for modified expectations for students receiving special services (P1).

10. During the summer Student received writing services from the Weaver Clinic’s summer program through an oral settlement agreement between the Parents and Brookline. In that program Student worked on listing ideas for writing, developing organizational structure, and skills to recognize the main idea of a paragraph. He also worked on strategies to develop inferences while reading and notetaking, handwriting and keyboarding skills (Weaver, P18F). ESY services were not put into the IEP nor was any notice given regarding denial of ESY services. Brookline did fund the services and this funding was accepted by Parents (Mother, Katzman, see P18C). Dr. Weaver felt that Student benefited from the services and should continue with a writing and organizational program during the summer because Student’s need for organizational skills would increase during middle school. He also believed that Student would regress without support. The extended year programming however, did not need to be at the Weaver Clinic (Weaver).

11. Student continued at the Heath School for 6 th grade (SY 01-02). Special education services in the learning center were implemented by Todd Curtis (the learning center teacher), and Ruth Arnold (SLP) (Curtis, Arnold). Student informed Dr. Weaver that he thought that Ruth Arnold helped him but felt that she was obsessed with the trash in his locker. Although Student did not talk about Mr. Curtis often, Dr. Weaver thought that he provided useful services to Student due to information he gathered at the TEAM meeting that reviewed his evaluation (Weaver). Mr. Curtis was available to meet daily with Student to assist him in unpacking his bag and helping Student to check off his work done and make sure that the assignments due were accurately written down (Curtis). Upon inquiry, Student later informed Parents (and at hearing, the Hearing Officer) that he did not think that this occurred too often (Student). Student missed a lot of the morning organizational time due to tardiness (Curtis). Student also does not remember Mr. Curtis working with him often in social studies class (Student). Student did however tell his Parents that the paraprofessional Mr. Heavey was in that class but he did not think that he sat down 1:1 with him to help him with reading comprehension. (P16, Student). Mr. Curtis confirmed that support was done during those times by the paraprofessional; however Mr. Curtis has observed the paraprofessional working with Student and met with him for supervision once a week (Curtis, compare S12 A, B, C). Mr. Curtis also met with the social studies teacher weekly (Curtis; also see S13 A, B, C). Student also indicated that he though that some of his teachers did not always remind him to check his assignment sheet and check off his homework when it was completed (Student).

12. First term midterm records (October 15, 2001) show that Student was able to use legible handwriting for short assignments and was able to develop appropriate written work and reading comprehension skills given organizational outlines and the use of a word processor ( see S2). He did not however use the word processor consistently ( compare P34, S3). Teachers noted that Student showed a positive attitude in school and was eager to learn. Organization still remained a problem in social studies and some work needed to be made up in math (P39). Special education progress reports compiled on November 16, 2001 show that Student had made some good progress toward utilizing a daily assignment sheet (P44). Student however continued to have difficulty with matching needed materials to given assignments and was reluctant to use strategies for organizing written work (P44, also see P32, P33). However, Student’s progress was solid in connecting his ideas, identifying key writing elements in writing and demonstrating inferential understanding of reading material (P44, also see S2). Student continued to have trouble with spelling, receiving a C- and a D- in November spelling tests in social studies (P32, P33, P2). Student’s first term marks show A’s in Art, Music and P.E., a B in math, a B+ in science and B-‘s in English and Social Studies (P43, S3).

12. Second term mid term reports (December 17, 2001) show improvement in math and social studies tests. Special education progress reports compiled on January 16, 2002 show that Student had made the greatest progress in posing and answering inferential questions (P45), also see (S2) (A graded shipwreck essay). Mr. Curtis noted that any difficulty Student had in demonstrating his ability was more of a function of his written expression deficits than in reading (P45, Curtis). Mr. Curtis also noted that Student had with support increased his ability to organize his writing and with prompting and structure could edit much of his work on his own. Student also made good progress in completing work that had been assigned and that he benefited from recording his assignments in his folder. Student however continued to have difficulty handing in work that he had completed and struggled to come up with appropriate writing organizational strategies on his own. He was also reluctant to use the “Emate” processor provided to him (P45). Parents were concerned about Student’s ability to complete long term assignments. Mother met with Dr. Gracia, Todd Curtis and Ruth Arnold to discuss this. At that meeting Mother told them that Parents had done Student’s electricity project and the Adventure writing project for him last minute so that the assignments would be done (Mother, see Father). Brookline teachers were not aware that Parents were doing other assignments for Student (Arnold, Curtis).

13. In approximately late December 2001 or early January 2002, Todd Curtis assessed Student’s spelling using the Woodcock Johnson (P27, Mother). Student at the 6 th grade 3 rd month scored at a 8 th grade 3 rd month level in spelling; however when testing on unknown nonsense words Student scored at the 4 th grade 7 th month level (P27). Mother questioned whether Student had a spelling disability and on January 4, 2002 repeated her November 6, 2001 request to have Ruth Arnold administer a spelling assessment after the family got back from a January vacation (P27, P2). Ms. Arnold agreed and ordered the test (Arnold).

14. Final second term grades show an incomplete in English and social studies, and Student’s grades went down from a B to a C+ in math and down to a B- from a B in science (P3). Mr. Curtis felt that the incompletes were reflective both of Student’s tardiness and absence from school for vacation as well as Brookline’s possible failure to follow through with implemented strategies (Curtis). Incompletes were given to allow Student to make up work instead of punishing him with bad grades (Curtis).

15. The TEAM reconvened on January 16, 2002 for an annual review of Student’s IEP and developed an IEP for February 1, 2002 to January 31, 2002 (S7). The TEAM did not discuss summer services at that time (Mother, P4). The IEP did not include daily reading services, decreased academic services from 100 minutes per week to eighty-five minutes per week and reduced writing services from 100 minutes per week to ninety minutes per week. The TEAM however, increased OT from one to two thirty minute sessions per week and added 10 minutes of weekly OT consultation, added thirty minutes weekly of executive functioning (organizational) support; compare (S7, S6).

16. On February 14, 2002 Parents wrote to Dr. Gracia (the TEAM chairperson) to request summer services for Student and add additional support to Student while writing essays on tests. They also asked that Brookline add a modification that Student’s grades would not be lowered because of missed homework and possible spelling accommodations pending testing (Mother, P4). Parents formally rejected the IEP on March 7, 2002 because the student strengths and evaluations section did not fully describe Student’s learning disabilities and did not list the twenty accommodations previously made on the former IEP nor did it include five additional accommodations that Student needed. Parents attached proposed additional information and thirteen accommodations for the TEAM to consider; see (P5). Parents also proposed adding a self advocacy goal for Student and rejected the lack of ESY services and elimination of a pragmatics group both because these services were needed for Student and because they felt that Brookline did not provide them with written notice before proposing to terminate these services. Parents requested a meeting to discuss the rejected portions of the IEP; Id.

17. On March 1, 2002 Ruth Arnold administered the Comprehensive Test of Phonological Processing test (CTOPP) to get further information about how Student processes auditory information and if so, if there was any relationship to Student’s spelling difficulties (Arnold, P28, S11). Although the testing was first requested by Mother on November 19, 2001, the test was not conducted until April 2002 because the test had to be ordered and Ms. Arnold did not have available time to conduct testing without compromising Student’s or other students’ therapy sessions or upcoming reevaluations (Arnold). Ms. Arnold calculated the score for each subtest using standard scores and percentiles because this is the most accurate way to assess and is standard practice in the field (Arnold). She did not use composite scores because composite scores may not accurately reflect a student’s strengths and weaknesses and are as such are not standard practices in good testing (Arnold; see also Dr. Weaver’s testing). The subtests each have a mean of ten with a standard deviation of three (P28, S11, Arnold). Student in the above average range in all categories involving segmenting, repeating, blending and manipulating sounds, words, non-words and numbers. Student however, received a standard score of eight (8) (25 th percentile) on the Rapid digit naming test and a standard score of seven (7) (16 th percentile) during the rapid letter naming test. Id. The results of these subtests confirmed that Student’s ability to process information auditorily was impacted when speed was expected or required. Ms. Arnold did not make any recommendations as a result of this testing since speed was not required in the classroom and extra processing time was an accommodation in his IEP (Arnold, see P28, S11).

18. Parents received Student’s mid term report on or about March 5, 2002. Student’s English and Science teachers noted that Student participated often or enthusiastically in class. His math teacher noted that Student had an exceptional understanding of the material and interacted well with others. The art and music teachers noted that Student was a hard worker. In social studies however, Student’s assignments were frequently late or missing (P41).

19. The TEAM again met on March 13, 2002 (Mother, P7, Arnold, Curtis). The TEAM met for approximately one and a half to two hours (Curtis). The TEAM agreed to change the strengths and evaluations section of the IEP, agreed that O.T. would be provided one-to-one or with students in his own grade, and agreed that pragmatic services would be put back into the IEP. The TEAM also agreed that the accommodations left off of last years IEP would be put back in the current IEP. The TEAM also agreed to add an additional accommodation that allowed Student access to faculty notes, study guides and peer notes if they could be delivered in an anonymous manner (P7). The TEAM did not agree upon extended year services or that missed homework assignments should not lower Student’s grades (Mother, Curtis, P7).

20. On March 17, 2002 Parents again wrote Dr. Gracia informing him that reading services were left off Student’s IEP and requesting written notice explaining the reasons that the services were dropped if Brookline intended to propose to eliminate that service from the IEP. Parents also asked for an additional TEAM meeting to discuss inclusion of an accommodation for development of a weekly homework progress report, regular communication time between school and parents, and a tutor to help Student in answering open-ended response questions on exams so that Student would have the same opportunity as others to receive an “A” in class. They also requested that Dr. Gracia inform them in writing regarding what Parents should do about the issues that were not agree upon (P7).

21. The TEAM again reconvened on March 21, 2002. The TEAM agreed to further revise the student strength section, add an accommodation for weekly correspondence with Parents about homework, regular communication between Parents and school once per month and that Student would be provided a writing tutor on exams requiring open-ended questions. Parents and Brookline continued to disagree about Student’s need for ESY services and whether Student’s grade should include homework or only class work (Curtis, Mother, P8). Brookline informed Parents of their rights to request a hearing at the Bureau of Special Education Appeals (BSEA) (Mother, Katzman).

22. In late March 2002 Parents informed Brookline that they were going to file a hearing request with the BSEA (Mother). On April 4, 2002 Parents wrote to the Special education director John Abramson to request an additional meeting to discuss Brookline’s position regarding the grading policy for homework and the denial for continued ESY services (P10). Parents filed a hearing request with the BSEA on April 8, 2002. The TEAM reconvened on April 10, 2002. That meeting also lasted about approximately one and a half to two hours (Curtis). Although Mr. Curtis did not agree with the homework accommodation he was willing to put it into the IEP instead of going to hearing over it (Curtis). Although Brookline did not feel that Student required ESY services they were willing to offer Student a summer writing program and speech/language services once per week to address organizational and writing issues (Arnold, Mother, see P10). Parents felt that Student required the sixteen 90 minute session program at the Weaver Clinic and rejected this offer (Mother, see P10). Mother also requested individual in-servicing from Dr. Weaver. Ruth Arnold told Mother that there was already teacher in-servicing in place (Arnold, Mother, see P11). PUT IN INSERVICE PROVIDERS RESUMES HERE

23. On April 12, 2002 Mother wrote to Dr. Gracia requesting that Brookline add in-servicing from Dr. Weaver to Student’s IEP, and that Parents be invited to the in-servicing. Parents felt that this in-servicing was needed because Student’s 6 th grade social studies teacher pointed out his organizational difficulties in class; Student’s homeroom teacher told Mother that it would not be fair to other kids if he gave Student high grades if he did not complete all assignments; Student’s science teacher asked Student to give someone else a chance to talk, made him miss recess to complete his lost homework, and wrote “messy” on his papers (P11).

24. On April 22, 2002 Mother again wrote to Dr. Gracia requesting an independent evaluation to assess Student’s spelling problems (Mother). Mother proposed that this independent evaluation be done by Dr. Robert Kemper. Dr. Kemper had previously assessed Maternal Aunt’s sons and was recommended by her (Mother, Kemper).13

25. Mr. Curtis issued a third term progress report on or about April 22, 2002 (P46, S3). Mr. Curtis noted that Student was recording more of his homework assignments due, and was making progress in bringing homework home and completing it. Student continued to need reminders to hand in and check off his work but had made progress in this area. His reading comprehension was good but was resistant to employing strategies to organize what he had read. Mr. Curtis also noted that Student had developed a number of mid to long length essays that quarter and had benefited from support to organize and edit his work (P46, S3, Curtis).

26. Student received his third term report card on April 24, 2002. Student received A’s in Art, Music and P.E., and a B- in science. Student’s English and Social Studies marks went up from incompletes to B’s. see (P43). The Math, English and Science grades contained the words “Modified Expectations” under the grade (P18B, Mother).

27. On April 25, 2002 Mother wrote to the Superintendent about the modified expectations notations on Student’s report card. Mother felt that the math/science teachers’ notations and Principal Katzman’s cosigning of the report card constituted retaliatory and discriminatory acts and asked that the Superintendent eliminate these actions (Mother, P13).

28. Brookline sent Parents the amended IEP developed at the April 10, 2002 meeting on or about April 26, 2002 (S7). Parents received this IEP on May 2, 2002 (P15). The IEP listed modifications of homework assignments to reflect Student’s disability affecting organization, spelling and written expression. Homework modifications were to be done by Ms. Arnold and Mr. Curtis in consultation with the classroom teachers (S7, Curtis, Arnold). The homework modifications listed were as follows:

· daily homework will not affect [Student’s] grades;

· homework will be appropriately modified for length, complexity of directions, demands on written attention and demands on visual/spatial integration. These modifications will be made by the special education teacher in consultation with the classroom teachers and speech/language pathologist;

· additional copies of assignments shall be available to [Student] in the event that he loses his work;

· Materials will have adequate space for response;

· [Student] will have access to templates for planning essay responses on tests and/or dictation of responses to a scribe or a tape recorder;

· [Student] will have the availability to notes from a peer “notes” buddy in order to limit copying tasks and aid in attention;

· extended time will be given to complete tests that require written expression;

· limit of copying information from the board;

· [Student] will organize homework in a home-school folder that would be reinforced both in school and by [Student’s] parents at home.

In addition, Student would not receive “weekly reader” assignments (S7).

29. Todd Curtis strongly felt at the TEAM meetings and currently feels that Student’s grades should include homework and that Student would be able to do well if the appropriate modifications were in place (Curtis, S7). Mr. Curtis believes that Student would not benefit from this accommodation and could in fact have his academic progress impaired because Student will know, even if Parents do not tell him, that his homework will not affect his grades. Mr. Curtis feels that the message that Student will internalize is that he is incapable of homework tasks when in fact, Student is becoming more and more capable (Curtis, S7). The school-based members of the TEAM were not able to come to agreement with Parents on this issue and included this accommodation in an attempt to ameliorate a contentious situation and move forward (S7, Curtis). Mr. Curtis included his objections as an addendum to the accommodation section of the IEP (S7).

30. On May 6, 2001 Parents again wrote to the Superintendent about the addendum to the IEP. Parents told the Superintendent that they respected the fact that Mr. Curtis had a different opinion about the homework/grading accommodation that Parents proposed but that the IEP was not the proper place to express this disagreement. They informed the Superintendent that they considered this addendum a continuing retaliatory act. Parents also told the Superintendent that Brookline had committed procedural violations by not reconvening the TEAM at the beginning of the 2001-2002 school year when Student’s IEP was partially rejected and by terminating ESY services and not giving proper notice of this termination.14 (P14).

31. On May 10, 2002 Parents formally rejected the IEP because the IEP did not include reading, pragmatic and ESY services or appropriate accommodations or measurable objectives (P15). Brookline met with Parents on May 15, 2002 to discuss Parents’ proposed amendments. Parents requested that fourteen additional accommodations be included in the IEP. see (S7, P15). These concerns were further discussed at a prehearing conference on May 21, 2002 (Mother, see P18A)

32. Fourth quarter mid term reports were issued on or about May 15, 2002. Teacher reports show that Student participated in class and grasped concepts well, but that his work was of inconsistent quality; see (S3). Work samples done during late April to early May show that with school support Student was able to improve his writing performance; compare P35, S2 (Dovey Coe work sample), S2 ( House of Sorrow work sample).

33. The TEAM again reconvened on June 3, 2002. The TEAM added the accommodations requested by Parents; compare (P15, S7). The TEAM also discussed and agreed that Student’s report card would not have Modified Expectations on it (S7).15 The TEAM also discussed reading and pragmatic services and having revision of the goals in the IEP due to Parents’ concerns that the goals were not measurable (Mother, Curtis, Arnold). Parents requested that the annual goals be measured through standardized testing along with objectives based on the Brookline public school curriculum. Mr. Curtis and other Brookline staff expressed concern that measuring goals through use of standardized testing may not be reliable because a Student could have a bad day. They also felt that standardized tests (with the exception of MCAS) may not be based upon what Student would be learning in the classroom (Curtis, see also Katzman). The service delivery grid was revised. OT services and consultation was taken out at Parent’s request (Mother, Arnold). Consultation time was increased from fifteen to twenty minutes per week. Organizational support in the general education classroom was increased from three to ten ten-minute sessions per week. In addition, Student would now receive four 45-minute sessions of reading support and five 45-minute sessions of writing support in the general education classroom. The SLP would also deliver 45 minutes of pragmatic language support per week in addition to the daily writing support Student was currently receiving from her. Finally, Student’s academic support in the learning center was increased from three to four times weekly; compare (S7B, S7C).

34. The school year ended on or about June 20, 2002 (P43, S2). Special education progress reports show that by the end of the year Student was able to complete his daily assignment sheets, utilized a daily check-in sheet and correctly identified materials needed to complete assignments. He was also able to keep a better-organized desk (P47). Student concurred with Mr. Curtis’s assessment, telling Dr. Weaver that he was having an easier time with organization (Weaver). Student was also able to demonstrate increasing ability to use effective paragraphs, use topic sentences with supporting details and edit his work for consistently and clarity and was planning his writing before he began. (P47, see S2). Ms. Arnold also felt that Student had made good progress in writing in her small group session (Arnold). Progress in pragmatics was slower however the other boy that was paired with Student for writing and pragmatic instruction had very similar abilities and needs and they worked well together (Arnold). Student ended the year making the honor roll with A’s in his nonacademic courses, a B+ in math, a B in English and B-‘s in math, social studies and science. Id. Modified expectations were removed from Student’s report card. Id.

35. Dr. Kemper16 conducted a modified psycholingustic evaluation of Student on June 14, 2002 (Kemper, P29). The full battery of testing was not given because Dr. Kemper had reviewed Dr. Weaver’s testing and believed it to be accurate and comprehensive (Kemper). Dr. Kemper also reviewed Ms. Arnold’s CTOPP testing. Dr. Kemper administered the Clinical Evaluation of Language Fundamentals (CELF-3), the Test of Word Reading Efficiency (TOWRE), the Test of Reading Comprehension (TORC-3), the Test of Written Language (TOWL-3) and the Test of Written Spelling (TWS-4).

On the TOWL-3, Student scored in the average range in the vocabulary and sentence combining subtests, in the low average range in the contextual language and spelling subtests and the below average range in spontaneous and contrived writing subtests and story construction and style (P29, Kemper). The examiner manual of the TOWL-3 indicates that the test should not be used to make specific recommendations for day to day programming (i.e., Speech/language therapy services three times weekly for thirty minutes per week). (Kemper, Arnold).

On the TORC-3, Student’s reading comprehension scores were in the low average range (Grade equivalent 4.7). In paragraph reading Student’s standard scores was in the above average range, with a grade equivalent score above the 12 th grade level. The TORC-3 is most accurate if correlated with teacher reports (Kemper, Arnold). Dr. Kemper did not speak to either evaluator or other school staff or observe Student in other than the test setting (Kemper).

Student’s standard spelling scores on the TWS-4 were in the average range and on grade level when asked to spell words in isolation however spelling mistakes occurred when asked to write spontaneously (P29, Kemper, also see Arnold).

Dr. Kemper also administered the Lindamood Auditory Conceptualization Test (LAC). The LAC is a very basic test that assesses the most basic phonemic issues. It is not a standardized test and should only be used as a retest comparative (Arnold). Ms. Arnold feels that the CTOPP is a more appropriate test because it is a newer, standardized test and assesses more complex phonological processing (Arnold).17 The LAC requires a child to discriminate one speech sound from another. The second task requires a child to judge the identity, number, and sequence of sounds to note minimal changes within and between syllable units as one syllable is maintained and compared with another. The ability to hold two such pieces of phonological information in memory and make comparisons is considered an important skill for both reading and spelling acquisition (P29, Kemper, also see Arnold). The LAC however is not used for children like Student who have fine motor and executive functioning deficits because the test requires good sequencing and visual-motor (eye-hand) integration to complete the tasks (Arnold). Student received a converted score of 32 on the LAC placing him at the kindergarten level (P29).

36. Dr. Kemper concluded that Student had a language-based learning disability due to his scores on tests of single word recognition/decoding, auditory conceptualization, written expression and spelling mistakes when writing sentences in dictation and in spontaneous language samples (P29, Kemper). Dr. Kemper felt that this language-based learning disability coexisted with dysgraphia (P29. Kemper, but see Weaver). Dysgraphia is a neurologically based learning disorder that interferes with ones ability to convey thoughts and ideas effectively in a written format (P29). Typically a dysgraphic individual’s writing is characterized by a mixture of upper and lower case letters, misspelled words, unorganized thoughts and difficulties with sentence structure (P29), but see Student’s spontaneous writing sample (P29), Student’s work samples ( S2). Dr. Kemper recommended that Student receive individualized writing support three days per week (P29). At hearing Dr. Kemper recommended individual writing instruction because individual instruction was a better method for receiving instruction for all students (Kemper). Dr. Kemper also recommended instruction in LiPS (Lindamood-Bell Phonemic Sequencing Program) the other two days per week followed by review of phonics rules for reading and spelling using the Orton-Gillingham or Wilson Reading program (Kemper, P29). The LiPS program is an intensive short term program administered in daily 45 to 60 minute sessions that is effective for students with significant phonological and phonemic issues (Arnold). LiPS is not effective when administered two times per week (Arnold). Dr. Kemper was unaware of this and therefore recommended that this program be done in the summer (Kemper).

37. The TEAM met on September 11, 2002 to review Dr. Kemper’s evaluation. Brookline also agreed at the July 2002 prehearing to use this TEAM meeting to consider Parents’ requests for in-service training, to add a self-advocacy goal and psychological services to the IEP18 and measurement of IEP goals through evaluation in addition to teacher report (P54, S19, Mother, S7). In addition the TEAM also met to consider whether Student was entitled to compensatory education and reviewed Ms. Arnold’s CTOPP results at that time (P54, S19, Mother, Arnold). Brookline did not agree that compensatory services were warranted because Mr. Curtis or the paraprofessional were in the classroom and observed by Ms. Katzman working with students (including Student) in small groups (P55, S119, Curtis, Katzman). Mother’s request to talk to Student’s classroom teacher alone was denied because the matter was in litigation. No other alternatives were discussed see (P55, S19).

Despite extensive discussion, the TEAM was not able to come to resolution on measurement of goals with standardized testing, with Brookline feeling that test results would not correlate with whether Student would be learning what was taught pursuant to the Brookline learning standards and the Massachusetts curriculum frameworks (P55, S19, Katzman, Curtis). As such, Brookline proposed that Student’s progress be measured by teacher observation, work samples and portfolio assessment (S7).

The TEAM did however, after reviewing Dr. Kemper’s evaluation, agree to incorporate his recommendations for extra response time, access to a word bank during class discussions and tests and accommodation for reduced fluency during question/answer periods or extended discussions; compare (S7 IEP 2A, IEP 2B, S29). The TEAM agreed with Dr. Kemper’s recommendations for organization and determined that his recommendations for organizational support were similar to Dr. Weaver’s recommendations and were already included in the IEP (P54, S19, Arnold, ( compare S6/ P29, P25/ P29). The assistive technology accommodations were not included in the IEP ( compare S7D/ P29, P25/ P29). Ms. Arnold and Mr. Curtis do however use assistive technology programs when working with Student (Arnold, Curtis).

The TEAM next discussed whether Student continued to require reading and writing support in the classroom. Mr. Curtis told the TEAM that Student’s work samples confirmed that Student did not need individual reading and writing support in the classroom for three sessions per week. Mr. Curtis felt that Student’s writing work samples showed that he was using better paragraphing, was using good grammatical structure and his ideation in writing was strong but that individual and small group support were available depending on Student’s needs at the time (P54, S19, see Curtis, Arnold). Parents felt that Brookline staff was not defining how much service Student was getting in the regular education classroom and as such the goals needed to be more measurable and not subject to teacher subjectivity (Mother, P54, S19). Brookline felt that the IEP service delivery grid was appropriate and that the IEP should not be a weekly or monthly lesson plan of everything that occurs in class (P54, S19, Curtis). The TEAM next reviewed Dr. Kemper’s recommendations for Lindamood Bell instruction. Ms. Arnold informed the TEAM that she did not feel that this instruction was appropriate because the CTOPP testing showed that Student’s phonological processing was average or above average except when required to do rapid digit and letter naming within a time limit (P54, S19, Arnold). Ms. Arnold felt that if Student were given a longer time to process information he would be able to name and blend sounds. Ms.Arnold also felt that the LAC test did not accurately test Student because it required him to concentrate on differences in similar sounds, while at the same time, Student had to coordinate fine motor and visual spatial skills by picking up different color blocks when he heard those different sounds (Arnold, P54, S19). Ms. Arnold also informed the TEAM that in order for a student to be successful he/she must receive the program five times per week. Id. Brookline felt that Student didn’t require the LiPs program because he could read. Mother also acknowledged that Student could read but did not like to do so unless it was statistical information such as baseball scores (Mother, P54, S19). Father, a former reading teacher, also confirmed this information (Father, P52). Parents felt that Student should receive the LiPs program not only due to Dr. Kemper’s testing but also because of Student’s performance on the rapid subtests and below grade level performance when spelling nonsense words. Mother was also concerned that Ms. Arnold did not conduct the Rapid Color subtest of the CTOPP and as such did not think that her testing was valid (Mother).

In addition, Mother did not concur with Mr. Curtis’s or Ms. Arnold’s assessment that Student’s inferential reading was at grade level, believing that Student’s inferential reading was on a 1 st or 2 nd grade level. Student was not able to get the message of television commercials or know what other kids were saying in conversation (Mother, P54, S19). Ms. Arnold agreed with Mother’s assessment of Student’s inferential skills, but opined that this was due to pragmatic deficits affecting his ability to understand body language, eye contact, gesture and facial expression in a social context. Maternal Aunt also believed that Student had dysgraphia because Maternal Aunt’s child had identical scores on the TOWL and has terrible writing, and since Maternal Aunt and Mother are identical twins, Student must also have a writing deficit (P54, S19).

The TEAM next discussed in-service training by Dr. Weaver. Parents felt that Ms. Katzman promised them that Dr. Weaver would provide in-servicing during their meeting in April 2002. Ms. Katzman believes that she told Parents that Brookline did not object to having Dr. Weaver come in and meet with them at Parents’ expense; compare (Mother/Father, Katzman). The TEAM did not feel that in-service training was needed because the teachers meet weekly to talk about how students are achieving and learning, and Ms. Arnold and Mr. Curtis meet with teachers frequently to reinforce individual student’s learning styles and ensure that accommodations are provided (Katzman, P54, S19).

38. On September 28, 2002, Parents wrote the Hearing Officer a letter requesting that the scope of the hearing be expanded to include additional issues to the original ESY request. These additional issues listed were regarding putting objective measurable goals in the IEP, adding teacher in-servicing, reimbursement for the summer writing program at the Weaver Clinic and continued reading/writing tutorial services by the Weaver Clinic at the Heath School, addition of the Lindamood-Bell program and compensatory education (P50, Mother). Parents also asked that Brookline not be allowed to submit Student’s work samples because Brookline’s actions of not sharing it with Parents at the TEAM constituted a hostile act. Lastly, Parents asked to submit additional evidence at hearing and included a book (“What Jamie Saw”) along with Student’s writing samples and a two page letter listing Mother’s thoughts about what inferential information Student had missed from the book Inferential Information lacking in [Student’s] entries. (Mother, P50). A copy of the letter was also sent to Brookline Town Counsil (sic), Dr. Weaver, Dr. Kemper, Dr. Gracia, Todd Curtis, Ruth Arnold, Dr. Poggio and Mrs. Katzman (P50).

39. Ms. Arnold received the copy of the letter in her mailbox on October 1, 2002 (Arnold). She was happy to receive Mother’s thoughts contained in the Inferential Information document because she was trying to work with Student on this writing assignment and did not have the book because Student had self selected the book, had the only copy contained in the library and had not brought the book in to therapy sessions despite repeated requests from Ms. Arnold to do so (Arnold).19 Ms. Arnold went over the four passages that Mother listed in that letter during Student’s group therapy session that day. Student came home from school upset with his Mother slamming doors. When Mother asked Student what was wrong Student told his Mother “Mom, you think I’m retarded don’t you?” When Mother asked him why he would say that Student said that she saw the letter that she wrote to Ms. Arnold. When Mother asked if Ms. Arnold had showed him the letter Student told her that “she just read the parts that said I was retarded” “You said I don’t know how to infer. I know how to do that” (Mother, P50).

Mother immediately went to the Heath School to find Ms. Arnold (Mother). Mother was not able to find Ms. Arnold but did locate Ms. Katzman. Ms. Katzman called Ms. Arnold and met with Mother and Ms. Arnold immediately (Mother, Arnold, Katzman). Ms. Arnold told Mother that she had not read the letter to Student but did work with him in group with the information contained in the paragraphs to work on inferences and character analysis (Arnold, Katzman). Ms. Arnold however never told Student that she thought that he couldn’t infer (Arnold). Ms. Katzman told Mother that she had not read the letter but did support Ms. Arnold (Katzman). She also told Mother that she had taught middle school, and kids of Student’s age wanted their privacy respected and asked Mother to let Student know that she was going to talk to his teachers. Ms. Katzman however denied that she told Mother “If you decide to fish through your son’s bag and send his work to his teachers, then you should sit down with him and explain what you are doing” (Katzman, see P49). Mother concluded that Ms. Arnold and Ms. Katzman and the Heath School had inflicted emotional trauma on Student and engaged in retaliatory actions for Parents advocacy of Student. They therefore requested a ruling that retaliation occurred and asked that all of Student’s TEAM members be changed with the exception of the school psychologist Dr. Poggio. They further requested that in-service training be given to the new TEAM members (Mother).

40. Mother met with Dr. Weaver on October 9, 2002. At Dr. Weaver’s request Mother wrote down comments that Student had been making since the incident regarding his ability to infer. Mother wrote down seven different exchanges Student made between October 1-23, 2002 where Student asked Mother why she had to write that letter and informing Mother that he knew she was kidding, that his writing was neater than she thought it was, that he got the meaning of a joke, knew from brother’s behavior that he wanted to play a computer game and that he could infer (Mother, P51). He also believed that Ms. Arnold thought that he couldn’t infer and that she was obsessed with Van (one of the characters in the book) because she talked about this character at every session (P51). Dr. Weaver talked to Student about this incident. He told Dr. Weaver that he was upset that Ms. Arnold read a portion of a letter to him and was upset with his Mother because the letter made him sound like an idiot. Dr. Weaver met with Student again at the end of October or early November 2002. At that time Student appeared that he had moved on and was no longer upset with Ms. Arnold (Weaver). Dr. Weaver has not seen Student since that time (Weaver).

41. A Hearing on this matter occurred on November 19-20, 2003. At that time both Dr. Weaver and Dr. Kemper reviewed homework that Mother provided regarding Student’s book report concerning What Jamie Saw. Both concluded that his writing did not contain well developed detail or inference (Weaver, Kemper, see P38). Dr. Kemper did not read the book (Kemper). Dr. Weaver also did not read the book but read a “blurb” in Amazon.com (Weaver). Neither evaluator reviewed school work samples or asked teachers about Student’s work performance (Weaver, Kemper). Those more complete samples show that Student was able to, with the use of organizational tools and teacher direction, improve his writing performance. See (S4, S16), compare (P38, S4 and S16). November 16, 2002 progress reports show that Student continued to resist using his daily/weekly assignment book however, Student’s rate of completion of work has improved consistently to the point where if his homework were graded his grades would not be negatively impacted (S20, Curtis). In writing Student was able to write effective paragraphs, supporting main ideas with logically formed details. He was also able to discuss and ask questions demonstrating that he was comprehending what he read. Student’s greatest continuing need for support is in editing his work, both for cohesion and spelling (P20, Curtis, see also S4, S16). First term report cards show A’s in Art, P.E., and Computer Education, an A+ in Math, a B+ in Social Studies, a B in Science and B-‘s in English and Learning Center, earning him Honor Roll status (S20).

FINDINGS AND CONCLUSIONS

There is no dispute that the Student is a student with special learning needs as defined by M.G.L. ch. 71B and 20 U.S.C. 1401 et seq. , and is thus entitled to receive a free, appropriate public education within the least restrictive environment. The Parties agree that Student has an executive functioning deficit, NLD and ADD and corresponding difficulties organizing and prioritizing information, sustaining attention for long periods of time, understanding social cues, and fine-motor and visual motor difficulties. As a result of these disabilities, Student has trouble completing and/or turning in his homework and has difficulty processing complex, lengthy or rapidly produced information. He also has difficulty organizing and understanding social cues and inferences in his reading, writing and social interactions and impaired ability to focus on the “big picture” instead of less relevant details. Student also has labored and immature handwriting and impaired performance on tasks involving motor functions (i.e., taking notes in class). Student’s perfectionist tendencies and rigidity also lead to a lowered self esteem and difficulty accepting help from others (Weaver, Arnold, P25).

The evidence however does not support a conclusion that Student has a language-based learning disability or auditory processing deficits and as such, he does not require specialized services in these areas. Mother’s concern that Ms. Arnold’s CTOPP testing was invalid because she did not do the Rapid Color test and did not record composite scores is noted however, the fact that an evaluator does not conduct duplicative subtests in an evaluation does not make the evaluation invalid (Arnold, see Kemper testing). In addition, Ms. Arnold was credible in her assertion that it is standard practice in testing to examine individual subtests to analyze strengths and weakness instead of composite scores (Arnold, see Weaver testing). Both Ms. Arnold and Dr. Weaver’s testing and Dr. Kemper’s testing (TWS-4) show that Student is able to process information that he hears and spell on grade level when speed or timing is not a factor see (Findings 5, 17, 35). Dr. Weaver’s testing also shows that Student was able to decode, and had a reading rate above grade level and reading comprehension scores in the 95 th percentile when given structured assessment tasks that did not require him to organize, prioritize and articulate in a timed situation (Weaver, P25). Mr. Curtis and Ms. Arnold also concur with Dr. Weaver’s opinion and are consistent with Student’s work samples that Parents acknowledge that Student did without their help (Arnold, Curtis, see S2). Father, a former reading teacher, also believes that Student can read (Father). The Hearing Officer has considered Dr. Kemper’s testimony and evaluation that support his conclusion that Student has single word recognition and decoding deficits and dysgraphia. Dr. Kemper’s conclusions regarding reading comprehension, spelling and writing however are based upon testing that is not as valid if it is not correlated with teacher reports and work samples (TORC-3). It is also based on testing that should not be used to make specific recommendations regarding programming (TOWL-3) and speech discrimination testing that requires good sequencing and visual-motor integration to complete the tasks and is not appropriate for students with fine motor, executive functioning deficits (Kemper, Arnold).

The Hearing Officer has also considered Dr. Kemper’s testimony that Student requires an individual reading and writing tutorial. The Hearing Officer respectfully disagrees with Dr. Kemper’s conclusion that individual services are always superior. Each element of a student’s program must be geared toward his/her individual needs. Just as a small group of runners appropriately matched may have better individual performance by working together, appropriately matched peers may also be able to improve their individual performance. Student is grouped with one other student. This boy also has similar reading, writing and pragmatic disabilities as Student. They work well together and have an opportunity even when working on writing to improve their social language skills ( see Arnold). As such I find that Student’s small group reading and writing services provide him with a FAPE.

Parents however, have shown by a preponderance of the evidence that Student does require ESY services in writing and organization in order to prevent regression. Brookline feels that Student has strong memory skills and would be able to recoup any information he lost during the summer. It presented no evidence that Student would be able to organize and prioritize information after a summer break. Student showed no regression between 5 th to 6 th grade and from 6 th to 7 th grade but received ESY services during both summers. Student began receiving writing and organizational services in 4 th grade and showed regression in writing ( compare S1, 4 th and 5 th grade report cards); see also (P18E). It may be, as Brookline suggests, that Student had just begun receiving services and had not assimilated them into his behavior and may not substantially regress if he did not receive services during the summer. The assertion however, is speculative and does not meet the preponderance level. As such, Student’s IEP should include ESY services in writing and organization.

Brookline’s TEAM proposal for provision of these services through writing instruction through Brookline and organizational support from a SLP would have met Student’s needs. As such, Parents’ claim for reimbursement for services at the Weaver Clinic is denied.

PROCEDURAL ISSUES

Parents assert that Brookline committed several procedural violations and as such Student should receive compensatory education. These procedural violations include allegations that Brookline failed to allow Parents to effectively participate as members of the TEAM and Brookline’s failure to develop an IEP that used a variety of assessment tools and strategies and incorporated objective goals, objectives and benchmarks. Parents also assert that Brookline terminated Student’s ESY services at the Weaver Clinic without giving them prior written notice as required by the IDEA.20 The BSEA may order compensatory education to remedy past deprivations of special education rights; Phil v Massachusetts Department of Education, 9 F. 3d 184 (1 st circuit 1993). A school district which violates a student’s procedural rights under federal or state law may be liable where “procedural inadequacies [have] compromised the pupil’s right to an appropriate education…or caused a deprivation of educational benefits.” Roland M. v Concord Sch. Comm., 910 F. 2d 983, 994 (1 st Cir. 1990) (citations omitted), cert. denied , 449 U.S. 912 (1991). Compensatory education may be awarded if the parents’ opportunity to participate in the formulation of the IEP is seriously hampered; Roland M.v Concord School Committee , 910 F. 2d 983, 994 (1 st Cir. 1990), see also Pihl v Mass. Dept of Ed , 9 F 3d. 184 (1 st Cir. 1993).21

The evidence shows that Brookline did commit some procedural violations; however these procedural violations did not compromise Student’s right to an appropriate education or cause a deprivation of educational benefits. The TEAM reconvened on January 16, 2002 for an annual review. The IEP left out many of the accommodations on the former IEP. The IEP also did not include Student’s pragmatic group or the reading services that Student was previously receiving and did not include the assistive technology recommendations suggested by Dr. Kemper and Dr. Weaver. Ms. Arnold admits that the TEAM did not reconvene to review her spelling evaluation in a timely manner. Brookline however reconvened the TEAM five times between January and September 2003. Each meeting was at least ninety minutes long and Parents were allowed to express their opinions and concerns. Brookline put the pragmatic group and reading support services and the former accommodations back into the IEP and incorporated many of Parents’ requests including, changing the language in the strengths and evaluation section, addition of a self advocacy goal and addition of twenty-five (25) homework, test taking and note taking accommodations requested by Parents. Student continued to receive his pragmatic and reading support services, was given access to assistive technology and Ms. Arnold’s testing showed that no additional accommodations or services were warranted. As such Brookline’s procedural violations were not outcome determinative and as such compensatory education for these violations is not warranted.

Brookline and the Parents did not come to an agreement regarding provision of in-service training, extended year services at the Weaver Clinic, individual reading and writing tutorial, LIPs training and the use of standardized testing to measure Student’s progress.22 The lack of agreement however, does not mean that Parents were not given adequate opportunity to participate in the process. School districts have a responsibility to provide Student with a free appropriate public education (FAPE) in the least restrictive environment (LRE). That responsibility may mean that there may be parts of a student’s program that a parent may not agree with. Although understandable, it is inappropriate for a School District to acquiesce to program modifications, accommodations or services if it believes that those services will not provide FAPE in the LRE. Brookline, in order to avoid litigation, acceded to Parents’ homework grading accommodation. Once Brookline did assent to this request it became part of the IEP as a TEAM recommendation. Mr. Curtis’ statements in the addendum, while properly voiced at a TEAM meeting, are not appropriate as part of an addendum because they are not part of a full TEAM decision. The addendum should be removed from Student’s IEP.

Similarly, Parents’ requests to the Superintendent and to the TEAM liaison to make unilateral decisions outside of the TEAM process are equally inappropriate. The proper mechanism to resolve disputes between parents and school systems that can not be resolved through the TEAM is through due process procedures such as mediation or an administrative hearing. The Parties may also choose to come to an agreement concurrent with or outside of the due process system. Brookline and Parents settled many of their disputes through the TEAM process. Many others issues were settled at prehearing. Others issues, such as payment for Dr. Kemper’s evaluation, were settled privately between the parties. Brookline and Parents also orally agreed to pay for Student’s 1 st year of summer services at the Weaver Clinic in exchange for not litigating the issue of Student’s need for extended school year services. Student received these services through Brookline’s funding. Parents believe that Brookline’s settlement of this issue entitles Student to continue to receive these services pursuant to an IEP. They also assert that Brookline can not change any part of the educational placement of Student without giving them prior written notice that complies with the IDEA; see 34 C.F.R. 300.1415(b)(3)(A), 34 C.F.R. 300.1415(b)(8)(c)(1-7).23

Parents are correct that if the parties had agreed to make ESY services at the Weaver Clinic part of Student’s IEP Brookline would have to give Parents prior written notice that comports with the requirements of the IDEA. The Parties did not so agree. It is unclear whether Parent’s knew at the time of the oral agreement that they were giving up their right to have ESY services as a “stay-put” placement by agreeing to this funding. Student however was not denied a FAPE because he received the services through Brookline. Brookline did, when Parents did request ESY services at the Weaver Clinic during the summer of 2002, discuss Student’s need for ESY services at more than one TEAM meeting. It also informed Parents of its reasons for not proposing the service at the Weaver Clinic; discussed other options for ESY programming and informed Parents of the option of resolving the matter through due process procedures that Parents did ultimately do.

The record shows that Brookline did use a variety of assessment tools to develop Student’s educational plan and to determine if Student was able to effectively access the general curriculum. These assessments include Dr. Weaver’s testing, Dr. Kemper’s testing, testing from New England Medical Center, and testing from Ms. Arnold and Mr. Curtis. Student’s skills were also assessed through the IOWA test and Student will also take the MCAS next year and may be subject to further testing pursuant to the “No Child Left Behind Act”. Student was also graded on his written work and participation in class and given homework to reinforce what he was learning even if not graded on it. Parents presented no evidence to show that Student’s individual needs require standardized testing or that results of yearly standardized testing would correlate with what Student was learning in school.

The evidence shows that Student’s individual program allowed him to access the same general curriculum as his nondisabled peers and make effective progress; see Student work samples, Student progress notes, Student report cards, Arnold, Curtis. Parents assert however that the IEP is not appropriate because it does not include measurable and objective goals and objectives so that it is not possible to determine if Student has made progress. An effective IEP is a roadmap. Parents and educators must know where a child is, where they want to go and how to get there. They need not however, know every landmark among the way. The IEP must include an objective statement of the child’s present level of performance based on Student’s unique needs. It must also contain annual goals and short-term objectives with benchmarks that describe what progress a student should be expected to make within specific times of the year. Objectives and benchmarks however, need not be as detailed as a lesson plan; see 34 C.F.R. Appendix C Question 39. One goal for Student is to progress effectively through the 7 th grade curriculum at the Heath School. As such, it is appropriate to use the curriculum frameworks and Brookline’s learning standards. The IEP as written also contains objective statements of student’s performance levels (i.e., Student is able to write creatively and express complex ideas. He has difficulty organizing his work so that it is clear and coherently focused). It also contains appropriate annual goals (i.e., “[Student] will exhibit knowledge of the craft of writing through control of language for a variety of purposes and audiences, as measured by three paragraph essays produced in the context of general education curricula”. The benchmarks/objectives are also measurable (i.e., plan, outline and develop a writing topic, revise successive drafts, edit and proofread pieces”).24 If Parents however have questions about Student’s progress Mr. Curtis and Ms. Arnold have offered to meet with Parents quarterly to go over Student’s work. This is a reasonable solution. Parents are encouraged to take advantage of it.

RETALIATION CLAIMS

Parents assert that Brookline has retaliated against them for advocating for their son. These alleged acts of retaliation are the inclusion of an addendum expressing Mr. Curtis’ disagreement with the grading accommodation that would not include homework, Ms. Arnold’s use and Ms. Katzman’s approval of the use of Mother’s letter regarding Student’s inferential reading comprehension and writing difficulties during his small group speech therapy; and the TEAM chairman’s failure to allow Parents to effectively participate in Student’s educational programming. As a remedy Parents would like the TEAM chairperson, Mr. Curtis and Ms. Arnold removed from Student’s TEAM and have the new TEAM and the school psychologist receive in-service training.

Under Section 504, no person shall intimidate, threaten, coerce or discriminate against any individual for the purpose of interfering with any right or privilege afforded under the Act or because he/she made a complaint, testified, assisted or participated in an investigation, proceeding or hearing; see 34 C.F.R. 100.7 (e). Parents’ advocacy for their son is a protected action under both 504, the IDEA and the ADA. However, in order to prevail on a retaliation claim Parents must also show that:

· the complainant suffered an adverse action contemporaneous with or within a reasonable time after the protected activity;

· the school district was aware of the complainant’s protected activity;

· there is a causal connection or nexus between the protected activity and the adverse action;

· the school district cannot offer a legitimate or nondiscriminatory reason for its action; see generally , Holbrook (MA) Public Schools, 34 IDELR 42 (OCR 2000), Winchendon (MA) Public Schools, 30 IDELR 991 (OCR 1999).

If the Parents are able to meet their burden of proof to show that retaliation has occurred, the burden shifts to the School District who must show that there is a legitimate, non-discriminatory reason for the adverse action. If the School District can show a legitimate, non-discriminatory reason for the action the burden shifts back to the Parents to show that there is evidence sufficient to permit the Hearing Officer (or the Court) to conclude that the School District’s reason for the action was pretextual. Id.

The TEAM Chairman

The IDEA requires that the IEP team include a representative who is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities; 34 CFR 300.344 (4) (i), is knowledgeable about the general curriculum; 34 CFR 300.344 (4) (ii) and is knowledgeable about the availability of resources of the public agency 34 CFR 300.344 (4) (iii). The evidence presented shows that Mr. Gracia allowed Parents to voice their views, that he was knowledgable about the general curriculum and school resources and that he attempted to focus the TEAM to review and plan for the unique needs of Student; see (P54). As such, Parents’ claim that Dr. Gracia cannot appropriately supervise the implementation of Student’s program is not supported by the preponderance of the evidence.25

The Grading Accommodation Addendum

The Hearing Officer has found that the addendum is not appropriate because it does not reflect the recommendations of the TEAM and as such the addendum should be removed. The Parents however, have not established a prima facie case that the inclusion of the addendum is a retaliatory act. Parents were upset about the inclusion of the addendum but otherwise suffered no adverse consequences. Student was unaware of the controversy surrounding the grading of his homework. Parents have also not produced any evidence to show that Mr. Curtis’ inclusion of the addendum was done to harm Student or Parents. To the contrary, the evidence shows that Mr. Curtis’ addendum was included because he felt strongly that this grading accommodation would deny Student a FAPE. He has implemented the accommodation even though he does not agree with it and can continue to implement Student’s program. Student is fortunate to have a teacher to advocate on his behalf even when not politically correct to do so. Mr. Curtis’ inclusion of the addendum, while procedurally inappropriate, was done for a legitimate nondiscriminatory purpose and as such is not retaliatory.

The use of Mother’s letter during small group speech therapy

Ms. Arnold’s use of Mother’s letter during Student’s speech therapy was also not retaliatory. While Student was briefly upset with Ms. Arnold for reading the letter, Parent’s have not demonstrated that Ms. Arnold’s reading of the letter was done to retaliate against them. Ms. Arnold’s testimony, that using parts of the letter was done to advance Student’s writing skills, is credible. Ms. Arnold has offered a legitimate nondiscriminatory reason for using parts of the letter. Parents’ have also not shown a causal connection between Parents legal action on behalf of Student and Ms. Katzman’s comments to Mother. Ms. Katzman’s support of Ms. Arnold and her conversation with Mother were done for a legitimate educational purpose and as such neither Ms. Arnold’s or Ms. Katzman’s actions were retaliatory. It does show however that accommodations to provide communication between Parents and school when Student does not bring in their homework were not implemented. The appropriate remedy however is not elimination of Ms. Arnold from Student’s TEAM. Ms. Arnold has provided appropriate services to Student. Student would benefit from continuing to be serviced by Ms. Arnold. As such, Parents’ request for removal of Ms. Arnold is denied.

Parent’s request for in-service training is a more appropriate remedy to address Brookline’s failure to implement the communication accommodations during 7 th grade. Brookline will hire a consultant with experience in NLD and executive functioning disabilities to review Student’s program and make suggestions or conduct training if needed.26

ORDER

The IEP will be modified to include school-based ESY services. As compensatory education, Brookline will engage a consultant of their own choosing to review Student’s program and make suggestions if needed. Parents’ other requests are denied.

By the Hearing Officer,

Joan D. Beron

Date: February 13, 2003


1

Austin is a psuedonym used for confidentiality and classification purposes.


2

P1, P12, P18, P19, P30 were removed by agreement of the Parties. P20-23 (Parent’s notes) were also not admitted over Parents’ objection but Mother was allowed to refer to them to supplement testimony. P56 is a book entitled “What Jamie Saw”. This book was not submitted into evidence but was submitted to the Hearing Officer and Town Counsel by Parents, was read by all Parties and referred to extensively in documents and in testimony.


3

The Parties submitted closing arguments in mid December. Parents’ Advocate submitted objections for the record on December 27, 2002 regarding evidentiary rulings excluding testimony regarding summer services provided to Student through a settlement agreement (documentary evidence was allowed), Brookline’s general 504 compliance policies and the results of Brookline’s most recent state review and a general research article concerning children with Asperger’s Syndrome. Parents also objected to the learning standards and the Massachusetts curriculum standards not being presented as evidence in their exhibit book at hearing. Official notice has been taken of both and will be considered.


4

Brookline assented to Parents’ request to not count homework toward Student’s grade.


5

Frazier v. Fairhaven Sch. Comm. , 276 F.3d 52. (1 st Cir. Jan. 9, 2002) and Bowden v. Dever, et al. ,Civil Action No. 00-12308-DPW (March 20, 2002) both hold that “a plaintiff must exhaust administrative procedures with respect to any claim that asserts a violation of the right to a FAPE. In addition, the District Court stated that Frazier suggests that a claim asserted under non-IDEA law may still be subject to the exhaustion requirement if the IDEA procedures either can provide some meaningful relief or a superior record on which the court could make its determination.” Bowden v. Dever, et al. ,Civil Action No. 00-12308-DPW (March 20, 2002). Since the Parents assert that School District staffs’ retaliation against them for filing this appeal resulted in a denial of a FAPE to Student, the claims are subject to exhaustion pursuant to Fraxier and Bowden Other issues addressed in the ruling were clarified at hearing . Other issues addressed in Parents’ motion were clarified and/or resolved by the Parties.


6

Brookline was given the opportunity to present rebuttal evidence if needed regarding either issue. Rebuttal testimony was not sought by either party because both Parties felt that they had addressed the issues presented.


7

Parents also allege that Student’s IEP does not contain all the information regarding his present level of performance. Brookline is willing to meet with Parents to provide more detailed language if Parents wish to do so.


8

Parents are happy with the school psychologist and do not wish to have the psychologist removed from the TEAM.


9

Dr. Weaver’s testing will be detailed in further findings.


10

Spelling on tests improved and continued to improve through 5 th grade. Handwriting and organizational skills remained at a needs improvement level.


11

Dr. Weaver is a licensed pyschologist (Weaver). There is no dispute regarding his qualifications or his testing (Arnold).


12

Ruth Arnold is a Masters level ASHA certified, licensed speech/language pathologist (SLP) and a certified teacher with at least twelve years of experience and training in the field and in the Brookline Public Schools (S15). She is trained in Story Grammar Marker (a writing process technique) and LIPS (Lindamood Phoneme Sequence Program for Reading, Spelling and Speech) Ms. Arnold also has a private practice in Newton and supervises Emerson Graduate SLP students.


13

Brookline filed a counterclaim regarding this evaluation but withdrew its hearing request after reaching a mutually agreeable solution with Parents.


14

Parents also asserted other procedural violations regarding Brookline’s actions regarding Parent’s request for an independent OT evaluation and the lack of inclusion of reading and pragmatic services in the IEP. These issues are not currently in dispute.


15

The additional accommodations were that Student would have extra space on teacher prepared material; Student would be able to take tests in the learning center, graphic organizers and planners would be made available to Student; Student would not be graded on homework. Homework would not affect Student’s grades; Report card grades would be based upon school work. Student’s papers would not be downgraded because of spelling errors; there would be weekly correspondences with Parents via a Thursday sheet and regular communication between Parents and professionals at least four times per year; Parents will receive a copy of all major tests and school work that affect Student’s grades; Student should be redirected to proof his work in English and Math; If Student has completed the wrong function (+-), then he should be allowed to edit; Study guides and other materials necessary for information presented in the classroom or lecture format will be presented to Student; Student’s report card will not have Modified Expectations on it.


16

Dr. Kemper is a psycholinguist. There is no degree in psycholinguistics or certification in this area nor are the evaluations conducted different than those performed by a speech/language pathologist (Kemper, Arnold). Dr. Kemper received his doctorate in speech and language pathology in 1985 and is a licensed SLP in Maine, Massachusetts and Ohio and through the American Speech Hearing and Language Association (ASHA). He has extensive experience in language-based learning disabilities. (P53C). He has less experience in nonverbal learning disabilities (Kemper).


17

The CTOPP also provides for calculation using composite scores. Ms. Arnold did not use composite scores because it is better standard practice to analyze the results of subtests to determine strengths and weaknesses (Arnold, Weaver, but see Kemper).


18

Brookline agreed that Student needed a self advocacy goal and psychological services and added these to the IEP. These services are not in dispute. The TEAM also agreed to disagree about ESY services and have that issue decided by the Hearing Officer (P54, S18).


19

The Hearing Officer received the only copy of the book and was not informed by either Party that a copy was needed by the school staff.


20

Parents also assert that Brookline failed to administer the CTOPP in accordance with its instructions and failed to label Student with a language based learning disability and dysgraphia. These issues have been addressed above.


21

If compensatory education is warranted Student would be entitled to the special education and related services that would be similar in time and scope to those he would have received during the applicable period of violation; see, e.g. Puffer v Reynolds, 761 F. Supp. 838 (D. Mass. 1990). 916 F. 2d 865 (3 rd Cir. 1990). Courts are split about whether a violation need be gross; however the denial of FAPE however must be more than deminimis ; see e.g. Carlisle Area School District v Scott P. , 62 F. 3d 520, 537 (3 rd Cir. 1995). Claims for violations may be defeated by equitable considerations; see e.g., Carver Public Schools, BSEA 00-2574 (Beron) (finding that a failure to access services offered by the district) bars a claim for compensatory services).


22

Brookline feels that the goals and objectives are appropriate but are willing to revise the wording to make them clearer to Parents. This is reasonable.


23

An LEA shall provide prior written notice to the parents whenever such agency proposes to initiate or change the identification, evaluation or educational placement of a child. 34 C.F.R. 300.503(a)(i) (ii). The notice shall include a description of the action proposed or refused by the agency, an explanation of why the agency proposes or refuses to take the action, a description of the other options that the agency considered and the reasons why these options were rejected…a description of any other factors that are relevant to the agency’s proposal or refusal, a statement that the parents of a child with a disability have protection under the procedural safeguards of this section and sources for the parent to contact to obtain assistance in understanding their procedural safeguards. See 34 C.F.R. 300.503 (b).


24

Four other benchmarks are contained in the IEP to achieve this goal.


25

During the hearing the Special Education Director, John Abramson testified. He also could fulfill the requirements of TEAM Chairperson and has, through his former position at the Department of Education, knowledge of the legal requirements of 766 and the IDEA. Mother conversed easily with Mr. Abramson and was visibly relaxed when he testified. This may lead to productive TEAM discussions. The choice of a TEAM chairperson however, absent evidence that the Chair could not implement the IEP, is for Brookline to make.


26

The consultant’s visit is solely to address compensatory issues and as such is not part of Student’s IEP. Brookline shall choose the consultant.


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