Danielle v. Sharon Public Schools – BSEA #03-4311



<br /> Danielle v. Sharon Public Schools – BSEA #03-4311<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

BSEA #03-4311

RE: DANIELLE1 v SHARON 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 occurred on October 2, 3 and 22, 2003 at the Bureau of Special Education Appeals (BSEA) in Malden, MA.

Those present for all or part of the hearing were:

Mother

Father

Robert Kemper Pyscholinguist

Elaine Lord Parents’ Advocate

Karl Pulkkinen Public School Liaison; Landmark School (Landmark)

Gina-Marie Bonanno School Pychologist

Gerri Ann Shubow Audiologist

Patricia Terrell Science Teacher; Sharon Public Schools (Sharon)

Nancy Pearlstein Special Education Teacher; Sharon

Naami Turk Consulting Clinical Pychologist for Sharon

Mare Ambrose Teacher; Sharon

Elisa Reeves Speech/Language Pathologist (SLP); Sharon

Judy Levin-Charns Director Student Services; Sharon

Ruth Bortzfield Attorney for Parents

Barry Mintzer Attorney for Sharon

Tammy Richardson Attorney for Sharon (2 nd Chair)

Joan Beron Hearing Officer, BSEA

Maryellen Coughlin Court Stenographer, Catougno Court Reporting (Catougno) Sonya Medieros Court Stenographer, Catougno

The official record of the hearing consists of Joint Exhibits marked J1-1242 and approximately three days of stenographic recorded oral testimony. The record closed on January 9, 2004.3

ISSUES

I. Do the IEPs designating a program at the Sharon Middle School resulting from a TEAM meeting on April 1, 2003, covering the period from March 24, 2003-March 24, 2004 provide Danielle with a free appropriate public education (FAPE) in the least restrictive environment (LRE)?

II. If not, will accommodations or modifications to the current program provide a FAPE in the LRE?

III. If not, does Student require an out of district day program at Landmark to achieve a FAPE in the LRE?

IV. Did Parents prior to December 2000 accept an IEP designating two pull-out speech/language therapy sessions per week? If so, does Sharon owe Danielle compensatory speech/language services?

PARENTS’ POSITION

Danielle has dyslexia and a central auditory processing disorder (CAP-D). Sharon’s inclusion program has not provided and cannot provide the language-based program that Danielle requires to receive a FAPE. Therefore Sharon should develop an IEP for a day program at Landmark. Danielle is also owed compensatory services from September 2000-December 2000 because Parents accepted an IEP for speech/language therapy services twice a week and Danielle did not receive them.

SCHOOL’S POSITION

Sharon has provided and can provide the in-class and pull out support and related services Danielle requires to address her reading comprehension, writing and auditory processing deficits. Sharon is also not liable for compensatory speech/language services because Parents did not accept the IEP amendment calling for those services until December 2000.

FINDINGS OF FACT

1. Danielle (d.o.b. September 1, 1990) is an artistic, pretty, athletic and popular thirteen-year-old 7 th grade student with a great sense of humor, who lives in Sharon, MA (Sharon) with her parents and fifteen year old brother (Father, see also Lanzel, Pearlstein, Ambrose, Terrell, Reeves). Although shy with adults and initially shy with peers, Danielle now has many girlfriends and is beginning to be social with boys ( see Father). At home, Danielle often engages in physical and verbal fighting with her brother and has been confrontational with Parents (J41, J107). The family goes to therapy to address these issues (Father). Danielle is on the Sharon Middle School basketball and swim teams, swims for the Y team and also is a Pop-Warner cheerleader (Father).

2. Danielle is diagnosed with dyslexia and a central auditory processing disorder (CAP-D).4 While Danielle can apply phonics and structural analysis in her reading she struggles to do so with automaticity and displays many reversals in her spelling. Danielle also displays moderate delays in receptive and expressive language, sequencing and word retrieval, deficits in understanding inferential concepts and weaknesses in her writing skills. Danielle also requires more time to process auditory information due to weaknesses in auditory memory and reception of complex auditory information ( see J1). Parents feel that Danielle requires a substantially separate language-based program and have rejected her current placement at the Sharon Middle School. Parents have however accepted the services that Sharon has proposed in its current IEP pending resolution to the disputed IEP. That IEP proposes a program with daily small group academic support in the resource room, speech therapy once per week and academic support and accommodations5 in her inclusion classes from a supervised paraprofessional and/or the speech and language pathologist. It also designates participation in a small group sequential, rule-based reading/decoding program (J1).

3. Danielle began displaying reading difficulty in 1 st grade (SY 1997-1998) (J41). She also continued to have a difficult time staying focused and on track (P41). In the middle of that year Danielle began seeing a reading specialist three times per week see (J41, J90). At the beginning of second grade (September 1, 1998) Father requested a reading evaluation and a core evaluation for Danielle and her fourth grade brother (J93, see J41). During second grade (SY 98-99) and early third grade (SY99-00) Danielle received informal support within the classroom from special needs and academic assistants. She also received support from the reading specialist three times per week and accommodations. Sharon did not formally evaluate Danielle, conduct a TEAM meeting or provide Danielle with services pursuant to an IEP; see (J90, J41).

4. Danielle was tested at Children’s Hospital (Children’s) in October of her 3 rd grade year (October 13, 1999). During language testing Danielle displayed no difficulty with phonology, easily identifying words based on their sounds (J41). She did however display poor word retrieval when cued only visually and was unable to follow verbal instructions, draw inferences, answer questions about paragraphs read to her or deconstruct grammatically complex sentences. Danielle was also unable to create gramatically correct meaningful sentences from word lists or reformulate stories. She displayed weaknesses in auditory memory and increased distractibility as she fatigued and required extra time to complete many items. The evaluator however found that Danielle had no difficulty with memory skills and displayed distractibility only when language demands were high. (J41)

The testing also showed that Danielle was able to decode at a second to third grade level. She had no difficulty with phonology, easily making words into Pig Latin and identifying words by their sounds (J41). However, Danielle’s reading fluency was decreased. She also displayed pronunciation difficulties with words that she did not recognize. Testing showed that Danielle’s ability to spell, read connected text and comprehend reading were on a second grade level and her sentence structure in writing was simplistic, scoring at a first to second grade level (J41). Punctuation was inconsistent and her reading pace was decreased. Word retrieval was good when cued auditorily but when cued only visually was slow and inaccurate (J41). Danielle was able to do math calculations on grade level (3 rd grade); however her ability to do word problems were on a 1 st to 2 nd grade level (J41). In addition Children’s also noted that Danielle displayed an awkward pencil grasp and slightly illegible penmanship but felt that her fine motor/writing skills were in the normal range; see (J43). Parents described Danielle as easily jealous, clingy and demanding. Her teacher however described Danielle as a happy, quiet, helpful and polite child who has many friends (J41). Psychological screening showed that Danielle’s noncompliance in the home (frequent fighting with brother and parents and running away from home) was not attributable to educational difficulties; Id.

5. Children’s diagnosed Danielle with a language based learning disability and delays in academic achievement. Children’s recommended that Danielle receive specialized instruction and classroom accommodations such as seating near the teacher, repetition of directions, chunking, multimodal presentation of material, repetition of directions, untimed testing, reinforcement of study skills. It also recommended tutoring in math and writing and the use of a computer and software for written assignments and for assistance in writing, spelling and math (J41). Children’s also noted that due to Danielle’s auditory processing weaknesses she would benefit from a structured, predictable and very routinized class with a low student-teacher ratio and an environment free from extraneous noise (J41).

6. Children’s also recommended that Sharon conduct a CORE evaluation to determine which services would best suit Danielle’s needs (J91, J41). Mother consented to the evaluation on November 5, 1999 (J88, J89). Sharon conducted testing in November and December 1999 (J37-41). Danielle’s 3 rd grade classroom teacher noted that she was easily distracted, had difficulty sounding out words and difficulty in reading comprehension and fluency and spelling. The teacher also noted that Danielle had not mastered topic sentences in writing or proper organization of paragraphs (J37, see also J39). She also noted that Danielle did not seek help when needed (J37). Danielle did however have generally positive feelings about school (J39, see also J38). Danielle willingly accompanied the examiner and attempted all the subtests; however Danielle did appear very tired, yawning constantly during most of the testing (J38). Testing showed that Danielle had average cognitive ability with a verbal IQ of 104 and a Performance IQ of 96, with weaknesses in short-term auditory recall and visual sequencing (P39). The educational evaluator observed that Danielle did not display a good phonics base during reading subtests often inserting letters that were not there or sliding over words she could not decode (J38). Danielle also showed difficulty with recall and had difficulty attending auditorily. She was however able to ask for repetition; Id. The evaluator recommended multimodal teaching of phonetic rules and study skills, repetition, rephrasing and chunking of information, small group instruction focusing on comprehension, the use of untimed tests and a computer to assist with written assignments and spelling, frequent checking to ensure comprehension and clear identification for transitions (J38, J39). Although Sharon recommended a speech/language evaluation, one was not done until May 2000; see (J7, J39, J35).

7. The TEAM reconvened on December 7, 1999 (J7). The TEAM recommended an IEP with pull out instructional support for three sessions per week in language arts and organizational skills (J7). The IEP did not offer assistance with math or use of the computer or software programs; compare (J7, J38, J39, J41). The IEP did however include many of the modifications suggested by Children’s and Sharon; compare (J7, J37-39, J41). Sharon sent Parents the IEP on January 7, 2000 (J7, J87).

8. On February 12, 2000 Danielle was seen for audiological and central auditory processing (CAP) testing from Gerri Shubow (J36)6 . Results of the CAP testing showed that even under optimal acoustic testing conditions Danielle needed extra time to process information and integrate what she heard. She also had difficulty with auditory memory, and processing rapid speech and complex auditory information. In addition, Danielle also had significant problems with pitch pattern sequencing affecting her decoding of reading (J36, Shubow). Ms. Shubow found that in a classroom setting Danielle was at risk of inaccurately perceiving (or mishearing) auditory information especially when information was presented in a noisy background, involved multiple parts, was presented quickly or contained unfamiliar language concepts; Id. This was especially true in a large classroom setting due to ambient noise (air conditioners, outdoor or hallway noise) or auditory distractions (rustling papers, moving chairs) because Danielle is less able than other children to filter out the background noise and integrate the information she hears (Shubow). However, although it is harder to do, children, with CAP-D (including Danielle) can be educated in a regular classroom setting with accommodations and intervention (Shubow). Ms. Shubow recommended several educational modifications. These included:

· reduction of auditory and visual classroom distractions;

· seating near the primary classroom speaker away from doorways, windows or distracting students;

· focusing of visual attention;

· repetition of structured concise instructions;

· teacher checking to ensure comprehension;

· short intensive periods of instruction with breaks for more complex listening demands;

· pairing of handouts, written outlines and summaries and/or visual information with oral presentations;

· preview and review of new vocabulary;

· encouragement of self advocacy;

· explicit teaching of strategies for listening and organizational skills;

· speech therapy and consultation of a speech therapist to monitor implementation of classroom modifications;

· computer assisted learning (software programs) to address writing, spelling and auditory processing (i.e., Earobics, Fast Forward, Lindamood Bell) and

· consideration of an FM trainer to increase sound and lessen reverberation (J36, Shubow).

Ms. Shubow has not evaluated Sharon’s proposed program or Landmark and can not determine whether either is acoustically appropriate for Danielle. However an audiologist with training in CAP-D disorders would be able to do such an evaluation and make recommendations if appropriate (Shubow).

9. Sharon contacted Parents on March 8, 2000 because it had not received a response to the December 7, 1999 IEP (J87, J86). In response Sharon received a request for educational records on March 15, 2000 from Parents’ advocate Elaine Lord, requesting to schedule TEAM meetings for Danielle (and Brother). It did not however receive a response to the IEP; see J85, J7).

10. Sharon attempted to schedule a TEAM meeting for Danielle (and Brother) on April 11, 2000 (J83). The Advocate requested that the meetings occur during the first or second week in May (J83).

11. On May 10, 2000, Sharon sent a written request to conduct a speech/language evaluation (P80). It requested a three year reevaluation on May 19, 2000 and an additional request for a speech/language evaluation on May 25, 2000 (J81). Parents consented to all the evaluations on May 25, 2000; Id.

12. Sharon conducted the evaluation on May 12, 19, and 26, 2000 (J35). Sharon had made a previous recommendation for a speech/language evaluation at the December 1999 TEAM meeting (J7, Father, J35, compare J35, J7). The speech/language pathologist (SLP) observed Danielle in her classroom and found that Danielle displayed good effort during reading, writing and small group discussion and benefited from teacher cues, verbal repetition of directions, visual/verbal pairing of information and verbal prompts to supplement writing (J35). During testing, Danielle’s attention to tasks was good; however she periodically yawned and when asked, responded that she was tired (J35). Testing revealed low average receptive and expressive language skills that were lower than one might expect given Danielle’s verbal IQ score as indicated on the WISC (104) (J35). Danielle also displayed a word retrieval deficit that further impacted her expressive language skills; Id. . Danielle also demonstrated difficulties with ambiguity and figurative language. She did however display strengths in inferencing. Danielle’s written language was disorganized and contained immature syntactic construction, run-on sentences and multiple spelling errors. Her writing also contained non-specific vocabulary most likely impacted by her retrieval problems; Id. The SLP recommended speech/language therapy three times weekly to focus on developing strategies for word finding and listening, improving expressive and receptive language skills and comprehension (J35). She also recommended and expanded on several of the accommodations suggested by Ms. Shubow; compare (J35, J36).

13. On June 12, 2000 Sharon reconvened the TEAM to review the evaluations (J6). The IEP proposed that Danielle received instructional support in the classroom four times a week. The IEP also proposed that the SLP would service Danielle in the classroom once a week and provide pull out support twice weekly. Among the recommendations was for the technology specialist to explore organizational writing materials that may be appropriate for Danielle (i.e., Inspiration) (P6). The IEP was sent to Parents on June 26, 2000 (P6, P79). On July 7, 2000 Parents, after talking to their advocate, postponed a decision on the IEP until the completion of an independent evaluation (Father, J6). Due to this rejection, the SLP did not provide Danielle with direct services in the fall of 2000 (J117). The SLP did however provide her informally with services in the classroom because she was in that classroom servicing another child who was often grouped with Danielle (J117). Parents believed that Danielle would receive these services as well as other services (computer programmed instruction) and when they were not implemented hired a private SLP who provided services from September 2000-February 2001 (Father, see J110, see also J111A).

14. On September 18, 2000 Sharon requested permission to conduct the Lindamood Bell Auditory Conceptualization Test (LAC) and the Test of Reading Comprehension to assist in planning phonological intervention services (J78). Parents consented to the testing but indicated that they did not wish to relinquish any rights for reimbursement for further testing (J78).

15. On October 3, 2000, Danielle, per her Advocate’s suggestion, received a BEAM7 test at Children’s Hospital (J32, see also J34). The neurologist found borderline features of a possible neurological basis for Danielle’s auditory processing difficulties but also indicated that the report also indicates a possibly normal study (J29, J32). He suggested an FM trainer. The neurologist also noted Danielle’s pattern of going to sleep late during the school week and gave Father suggestions to address this issue (J32, see also J34).

16. The SLP assessed Danielle’s phonological awareness and reading comprehension skills in mid October 2000. She drafted a report a month later (J33). Danielle’s scores on the (LAC) showed strong phonological skills making only one error on the test (J33). However, her reading comprehension skills during testing and in class showed that Danielle could not comprehend what she had read even though she could decode the text (J33, J31). The SLP recommended direct teaching of reading comprehension strategies (J33).

17. Sharon administered the Woodcock Reading Mastery Test to Danielle on November 28, 2000 (J30). At the time of testing she was in the 3 rd month of 4 th grade (J30). Her composite reading cluster scores (word attack, word identification, word comprehension and passage comprehension) were in the 34 th percentile with word comprehension scores at the 38 th percentile and passage comprehension scores averging at the 27 th percentile, approximately nine months below grade level (J30). Reading comprehension scores were at the 27 th percentile approximately eleven months below grade level; Id.

18. The TEAM reconvened on November 29, 2000 to review the evaluations. Sharon proposed an amendment for continued in class support by the special education teacher four times per week, pull-out speech/language services twice a week and continued in class support twice a week from the reading specialist (J5), see also (J75).8 Parents requested Fast Forward and told Sharon that Danielle would be able to receive instruction for free from Carroll School but would need transportation (Father, Lord).9 Sharon however did not agree with Parents that Danielle required Fast Forward because it felt that phonemic awareness was a core concept of the program and that although Danielle’s word comprehension was weak, her phonemic awareness was good (J74, Terrell, Father). The IEP was sent to Parents on December 6, 2000. The TEAM agreed to reconvene in December 2000 to discuss Danielle’s progress and the possibility of implementing the FAST Forward program (J5).

The TEAM did not reconvene in December (Father). On December 12, 2000 the Advocate Elaine Lord contacted Sharon to ask when the services would be starting. She was told that the amendment had not been returned (J74). On December 26, 2000 Parents accepted the services but rejected the placement (Father, J5). The SLP began services upon Danielle’s return from school vacation (J117).

19. On January 2, 2001 Danielle was seen for an independent speech/language and neurological evaluation at Children’s Hospital (J29). Children’s spoke to Parents who reported that Danielle continued to have significant problems spelling, decoding reading and organizing her thoughts for writing (J29). Parents also noted continuing behavioral problems related to a very stressed relationship with her older brother and continuing sleep problems associated with settling down to sleep (J29). Children’s reviewed previous testing, including school testing but did not speak to anyone from Sharon; see (J29). Like in previous outside testing, Danielle was tentative and shy (J29, compare J41). The evaluator found that Danielle’s performance on the WISC-III were consistent with the Sharon’s November 1999 testing indicating normal overall intellectual development and no significant impairment of reasoning or conceptual understanding (J29). She also performed at, or better than expected for age on nonverbal tests; Id. Her scores on the Boston Naming tests were one standard score higher than Sharon’s May 2000 results however, remained three standard deviations below the mean indicating significant word retrieval difficulty. She also displayed difficulty with immediate auditory memory. The evaluators noted that during testing, Danielle appeared frustrated about her learning disabilities and associated problems with academic work (J29). They reconfirmed the diagnosis of a language-based learning disability and reconfirmed their previous 1999 recommendations emphasizing direct instruction on the use of a word processor and computer production of writing and organizational issues (J29). The evaluator wrote: “Given the long-standing nature and extent of [Danielle’s] learning difficulties, she may require more intensive intervention than her current public school can provide. That is, children with neurologically based learning disorders, which include the auditory processing disorder …are at risk for increasing learning disabilities as academic demands increase in the higher grades. For this reason, it will be extremely important for all teaching professionals working with [Danielle] and the team planning her academic program to monitor her progress very carefully. If she experiences increasing difficulties or if progress is limited even with the special education supports in place, an alternative program designed for children with average intellectual development and specific language-based learning disabilities should be considered” (J29).

20. On March 30, 2001 Sharon scheduled a TEAM meeting for April 11, 2001 to review Danielle’s progress and the outside testing (J73).10 Her 4 th grade teacher noted that Danielle had great potential. She was able to use summarizing, predicting and inferring details when doing class assignments with support but could not carry over these skills independently or consistently (J27).

Teachers also noted that Danielle had been able to complete work in school but did not consistently complete homework (J27, also see J28, J26). Her 4 th grade teacher also noted however that Danielle’s academic performance was greatly affected when she was unsure or uninterested in a topic (J27). She also found that Danielle’s vocabulary and spelling skills were not where they should be and that it would be beneficial for her to know the basic math facts (J28, J71). She also felt however that she had seen some improvement in Danielle’s comprehension and that she had become a more independent learner; compare (J4, J71). However, Danielle had been recently gaining a reputation for inappropriate behavior with peers at lunch and on the playground, picking on students and taking food from the lunch line that was not paid for (J28).

Spring 2001 MCAS scores indicated that Danielle needed improvement in math and language arts (J109). Sharon however did feel that Danielle had shown improvement in her punctuation, capitalization and grammar and was using graphic organizers, but continued to be persuaded to redo her writing to meet class and teacher expectations (J27).

Her speech/language pathologist (SLP), after working with her for a year twice a week in one-to-one pull-out sessions, informed the TEAM that that Danielle had progressed from simply decoding words to reading for meaning (J26). The SLP also noted that Danielle had moved from reading and answering questions on a paragraph of a lower level reading book to reading chapters, and had begun and done well with supplying inferential information from paragraphs (J26).

Sharon proposed increasing her resource room support and supplying an FM system to increase her skills (J4, J27). Her special needs teacher also proposed building in a time at the end of the day to organize and work on homework and encouragement of the use of a computer/Alpha Smart at home and at school (J27). These suggestions were not included in the IEP; compare (J27, J4).

Sharon did propose an IEP for daily pull-out special education instruction and continued the current level of instructional support in the classroom and the pull out speech therapy twice a week; (J4, compare J4, J5). It did not however agree that Danielle needed an outside placement (Father, Lord, J28).

21. The IEP was sent on June 11, 2001. On September 1, 2001 Parents accepted the services but rejected the placement (J4).

22. Sharon sent the rejected IEP to the BSEA.11 Sharon contacted Parents on September 17, 2001 to clarify their response to the IEP (J69). Father informed Sharon that he remained concerned about Danielle’s educational progress even with the pull-out services and wanted to be sure that she was not going to be penalized for being pulled out of class (J69). Sharon told Father that it would touch base with the teacher so that this would not occur; see (J69). Sharon also offered, and did follow through, with suggesting a parenting course to address Danielle’s oppositional behavior at home and her running away from home (J67).

23. On that day, Father also informed Sharon that Danielle would be receiving an educational evaluation. Sharon suggested setting up a meeting to discuss Danielle’s progress. It also consented to Parent’s request to have their advocate Elaine Lord, observe the program. She did so on October 29, 2001. Sharon also granted the Advocate’s November 1, 2001 request to reconvene the TEAM and postpone the date of the TEAM meeting to accommodate her schedule (J69). It did not however send notice to reconvene the TEAM until December 3, 2001 (J65).12 The day before the TEAM meeting Sharon agreed to extend the current IEP until outside testing was completed (J63).

24. Parents’ advocate, Elaine Lord, as part of her job, observed Danielle’s 6 th grade program on October 28, 2001 to determine if the program was delivering what the independent evaluators were recommending for Danielle (Lord).13 She observed the reading, science, guidance and learning center period and a writing class (Lord). Most if not all the rooms were carpeted although the science room had a noisy heater. The classes were well taught and Danielle appeared comfortable with her teachers (Lord). The classes Ms. Lord observed had flip charts, study guides and handouts. Ms. Lord did not see the teacher giving Danielle written instructions in reading and noted that Student wrote immediately, contrary to the other students who appeared to be reading first (Lord). All the teachers went over techniques and strategies for homework and/or test taking. Both the English and science class had a paraprofessional who checked with Danielle at the beginning to determine if she understood the assignment and rechecked with her frequently (about every three minutes) when Danielle appeared unfocused. In science Danielle volunteered with a well-constructed sentence. Ms. Lord however felt that Danielle did not understand what was going on and sat in “silent confusion” (Lord).

25. Dr. Kemper administered a pyscholinguistic evaluation on February 19, 2002 (J24).14 Dr. Kemper interviewed Danielle and her parents and reviewed both school and independent evaluations (Kemper, J24). However his report does not note that Danielle received in class services, incorrectly noted that Danielle was receiving speech and language therapy once per month instead of twice per week and slightly exaggerated some of the school test scores.15 He did not however speak to any of Danielle’s teachers (Kemper).

During testing Danielle was quiet and reserved and did not initiate conversation but did respond appropriately when spoken to and was very motivated during testing (Kemper, J24, J41). Danielle’s standard score and percentile rank on the PPVT-III (a test to measure single word vocabulary) rose from a standard score (SS) of 90 (low-average) in May 2000 to a SS of 94 (average) in February 2002; compare (J35, J24). Danielle’s scores on the Expressive Vocabulary Test (EVT) dropped from a SS of 94 (low average) to a SS of 84 (below average); Id. Dr. Kemper, like Sharon’s SLP, attributed the discrepancy between Danielle’s expressive word vocabulary scores (PPVT, and EVT) to be indicative of a word retrieval deficit which the Sharon SLP confirmed by administration of the Boston Naming Test; Id.

As in previous testing, Danielle exhibited the most difficulty processing sentences with complex sentence structure, personal possessive pronouns, inference, logic and obtaining meaning from context (J24, compare J41, J24, J35). Dr. Kemper, like Children’s and Sharon, found that Danielle was able to recognize sight words and decode words fairly accurately through the third grade level (J41, J35, J24). However, her rate of decoding was extremely slow when reading fourth and fifth grade material. Dr. Kemper assessed decoding using the Test of Word Reading Efficiency (TOWRE), (a visual test requiring Danielle to decode a number of isolated words in 45 seconds) and the Slosson (a timed sight word vocabulary test).

On the Test of Reading Comprehension (TORC-3), Danielle achieved a SS of 6, scoring below average for her age (Grade Equivalents ranging from mid 2 nd to mid 3 rd grade level). The TORC-3 however is most accurate if correlated with teacher reports and Dr. Kemper did not speak to any school staff (Kemper). However, her performance in reading fluency on other tests administered by Dr. Kemper in February 2002 remained essentially the same as Children’s Hospital’s language testing in October 1999, showing performance on the second to third grade level; compare J24, J41).

26. Dr. Kemper assessed Danielle’s writing skills with the Test of Written Language –3 (TOWL-III) and Test of Written Spelling (TWS-4). Danielle’s spelling skills were below average. She was however able to logically represent most phonemes with their corresponding graphemes (J24). On the TOWL-III Danielle showed weaknesses in punctuation, capitalization, spelling, sentence structure and to a lesser degree paragraph organization and text structure. The examiner manual of the TOWL-3 indicates that the test should not be used to make specific recommendations for day to day programming (Kemper). Danielle’s performance with Dr. Kemper in this area however was similar to her performance with Sharon’s SLP; compare (J35, J24)16 .

27. After evaluating Danielle, Dr. Kemper found that she presented with most of the signs and symptomatology typically associated with dyslexia, due to her difficulties processing expressive and receptive language, including deficits in phonological processing and memory, and her associated difficulties in reading, writing and spelling (Kemper, J24). He concluded that Danielle’s oral or written language skills would not support the demands of a typical fifth grade curriculum even with substantial program modifications and accommodations.

As such, he recommended that Danielle receive all academic instruction in a small multisensory, substantially separate language-based intensive educational program that incorporates direct systematic teaching with continuous review of previously learned information and the teaching of skills across various contexts in order to facilitate generalization effects. He also found that Danielle would require a daily, individual tutorial in which a multisensory, code emphasis program is provided for reading, spelling and written language instruction (J24). Although Dr. Kemper felt that the Orton-Gillingham was the best methodology, other methodologies could be used (Kemper).

In addition, Dr. Kemper recommended that Danielle’s program would need to reinforce decoding strategies and oral reading fluency through oral reading of high interest low level books where she could apply word analysis skills and strategies learned in isolation to the text. Danielle should also be required to answer questions to ensure reading comprehension and use organizational templates and charts to identify and anticipate story form. Dr. Kemper also recommended individual instruction using the Lindamood Bell Phoneme Sequencing Program (LiPS program) to develop an awareness of sound-symbol relationships. In addition, Dr. Kemper recommended that Danielle be provided with specific writing strategies such as brainstorming, outlining, proofreading from a checklist, use of grammar outlines and coordination of her written work with her content area subjects (J24).

Specific accommodations included:

· preteaching, review, repetition and paraphrasing and summary of information using a multisensory approach;

· use of pausing to allow Danielle time to process the incoming message with extra time to respond;

· shortening the length and complexity of messages to match Danielle’s level of comprehension with periodic checks to ensure understanding and

· modeling of appropriate use of language with questioning of students to elicit elaboration (J24).

Finally, Dr. Kemper recommended that Danielle participate in the Fast ForWord program during the summer to help her establish more efficient auditory pathways for processing auditory information (Kemper, J24).

28. On May 13, 2002 Sharon administered the Woodcock Reading Mastery Test (J22). Danielle had previously taken this test in November of 4 th grade. In that year and a half Danielle’s SS’s and percentile ranks had dropped in every subtest. Specifically, Danielle dropped from the 32 nd to the 5 th percentile in word identification, from the 53 rd to 50 th in word attack, from the 38 th percentile to the 14 th percentile in word comprehension and from the 27 th percentile to the 9 th percentile in passage comprehension; compare (J22, J30). Her Basic skills cluster dropped from the 41 st to the 14 th percentile, reading comprehension cluster scores dropped from the 28 th to the 11 th percentile and the total reading cluster dropped from the 34the to the 12 th percentile; Id.

29. The TEAM reconvened on May 15, 2002 to review Danielle’s progress and outside testing (J59, 60, 61).17 As of May 2002 Danielle was receiving a 84.5 average in math, was able to answer questions when called on and was beginning to ask for clarification of concepts that she did not understand (J23, see also J60). Her 5 th grade teacher also noted tremendous growth in Danielle’s spelling and punctuation and her ability to express her ideas; see (J23, writing sample; J60, compare (J35, J24). She also noted Danielle’s willingness to participate in class discussions and noted that Danielle was well behaved, courteous, respectful and attentive; Id. Teachers noted that Danielle was highly motivated in class, well prepared and well behaved and that her confidence had blossomed that year demonstrating “huge growth over fourth and fifth grade ( see J3). Teachers also found that Danielle’s word attack skills were on grade level and that she was able to succeed in understanding the curriculum texts and could answer concrete and literal questions (J3).

The special education teacher and SLP also noted that Danielle was more confident, was using the strategies more in small group and was asking for help when she needed it. Sharon noted that Danielle was still guessing at some words but was now reading more for meaning and could, when redirected, go back and use the class supports (J60). It also noted that making predictions still remained hard for Danielle but that she was increasing her ability to do this (J3, J60).

The Advocate and Parents shared their concern that Danielle was not carrying through what she learned at school; see (J60, Lord). The Parties discussed Dr. Kemper’s report and out of district options but remained in disagreement because Sharon felt that Danielle was making good progress and that the public school was the least restrictive environment for her (Father, Lord, P60). The TEAM did not discuss the Woodcock Mastery testing done two days previously or compare those scores to testing done the year before; see (J60).

30. Sharon did propose, as a compromise, the language-based program at the Sharon Middle School (Father, J3). Parents did not want to consider this program and neither they nor their Advocate explored it because they did not feel that Sharon could implement an appropriate program. In addition, their Advocate did not feel that Sharon’s program was appropriate for Danielle (Father, Lord).18

31. Sharon’s proposed IEP amendment continued the daily pull out instructional support and the pull-out speech therapy twice a week and increased the instructional support in the classroom from four to six sessions weekly; compare (J3, J4). The IEP proposed that this program be continued at her present 5 th grade location (Heights Elementary) and then at the Sharon Middle School for 6 th grade (J3). The IEP incorporated many of Dr. Kemper’s recommendations for accommodations; compare (J24, J3). It did not include the recommendations for LiPs, Fast ForWord or an Orton-Gillingham type tutorial; compare (J24, J3, Father). Parents began exploring private schools including the Carroll School and St. Andrew’s and retained Counsel; see (J56, J57, J58).

32. The IEP was sent to Parents on May 31, 2002. On June 6, 2002 Parents rejected the IEP but accepted the increased services pending resolution of the disputed IEP. (J3)

33. Progress reports at the end of 5 th grade show that Danielle had made significant gains in using more mature vocabulary and was comprehending more of what she read (J21). She was, with reminders, able to write complete sentences and five sentence paragraphs and was, with help, able to organize her thoughts and stay with a specific topic. She was beginning to correct her spelling and grammatical errors independently but remained resistant to correcting content. Danielle also continued to need reminders to consistently use graphic organizers and study strategies and continued to need teacher assistance to effectively answer questions that involve prediction and inference (J21).

34. In July 2002 St. Andrew’s School in Rhode Island rejected Parents’ spring application for Danielle’s attendance for the 6 th grade (Father, J111A). Danielle attended the Sharon Middle School for 6 th grade (02-03 SY). Sharon did implement most of the modifications in the IEP (Ambrose, see J96-105). However, despite Ms. Ambose’s constant urging, Danielle hardly ever used the computer for language arts or social studies; Id. At Parent’s request, Sharon reconvened the TEAM; see (J51, J52). The TEAM meeting occurred on November 26, 2002 (J2).19 By that time Parents had received Danielle’s 1 st term report card ( see J94, J16). Danielle received an A in Physical Education, B’s in Science, Math, Computer, and Writing, a C+ in Math Extension (a required 6 th grade math course) , a C in social studies and a C- in reading (J94). All of Danielle’s teachers noted that her conduct in class was good or excellent; Id. Her effort was acceptable (ranging from satisfactory to excellent) in all but social studies where effort was inconsistent; Id. That teacher noted that Danielle was having difficulty applying concepts to daily work and needed to focus completely on topics under discussion (J94). Her writing/math teacher also noted that Danielle needed to read math word problems more carefully, needed to proofread her writing more thoroughly and needed to work on adding detail to her writing (J94).

35. At the TEAM meeting, the TEAM discussed the Advocate’s request for tutoring at the Commonwealth Learning Center after school or as a half day program there (Lord, Father, J111A). The TEAM also discussed Sharon’s recommendation for implementation of an FM system (Lord, Father, J2). Sharon did not feel that Danielle required after school tutoring but offered after school support. Parents and Advocate did not feel that this service would be beneficial to Danielle. They also did not want to implement an FM system because Danielle did not want to wear it (Father). He did not tell the TEAM this (Father). Sharon also told Parents that Danielle was due for her three-year reevaluation in December 2002 but that it did not receive Parents’ response to the consent form sent on October 24, 2002; see (J2, J53). Sharon proposed an amendment that added speech/language support from the SLP in the classroom twice a week; see (J2, compare J2, J3).

36. Danielle did begin attending a regular education after school grammar and spelling group with her English and social studies teacher and continued it through 6 th grade (Ambrose). She actively participated and benefited from the group. (Ambrose).

37. On December 1, 2002 Parents consented to the educational assessment. They did not consent to a speech evaluation (J50).20 Parents did not address Sharon’s request for an observation; see (J50, J53). Sharon requested clarification and on February 10, 2003 obtained consent to conduct a speech/language evaluation and observe Danielle in the classroom (J48). The additional services were, after a January 2003 reminder was sent, accepted on March 24, 2003 with a request for a meeting (J2, J47). The placement continued to be rejected (J2). On that day Sharon sent notice to reconvene the TEAM and sent the rejected IEP to the BSEA (J44, J45).

38. Danielle’s 2 nd term report card came out in February 2003 (J94). February progress reports show more accurate usage of capitalization, word usage and topic and paragraph organization with improvement in proofreading and summarization skills (J16, see also Ambrose). Sequencing multi-step directions and inferential skills continued to be a challenge for her (J16, J17). Danielle’s report card grades generally stayed the same with slight improvement (B+ from B) in science and computer and social studies (B- from C), slight decreases in Math Ext. due to missing homework (C from C-) and slight decreases in Writing due in part to proofreading issues (B-.from B); Id. Her social studies teacher noted that she was generally meeting curriculum expectations and that her research projects were well planned and presented (J94). She was having difficulty meeting curriculum expectations in reading; however her writing in that class showed improved effort and she was using graphic organizers to help her with her assignments (J94, J16).

39. On February 10, 2003 Parents applied to the Carroll School for admission for the 2003-2004 school year (J107). Carroll rejected Danielle’s application on March 18, 2003 (J108). In its rejection, Carroll indicated that Danielle’s records showed that her primary difficulty lies within the Central Auditory Processing diagnosis and receptive language. It concluded that despite its ability to address the decoding and fluency issues and the small classes, it could not provide Danielle the support and structure she required (J108). Carroll did however suggest its summer program as an alternative for increasing Danielle’s decoding and reading skills; Id.

40. Danielle’s 6 th grade special education teacher (Nancy Pearlstein) reassessed Danielle for her three-year reevaluation during late February to mid March 2003 (J15). The SLP (Kathleen Davis) also did a speech/language observation during that time (J13). Ms. Davis observed that the reading, writing and science classes used multisensory teaching approaches, broke down multi-step directions and used graphic organizers (J13). Danielle was able to use the graphic organizer, however, the information she gathered was sparse. Ms. Davis also noted that Danielle did not ask questions or want to elaborate on her ideas even though she was confused, but that once an assignment was explained she was eager to work independently (J13). The SLP also noted that during her reading class discussions Danielle had difficulty maintaining her attention and would become engaged with friends by passing notes and talking; however during science, where Danielle was sitting up front and the therapist was sitting near her, attention was focused; Id. She also noted that Danielle tended to avoid class participation because she had difficulty putting her ideas into words. Danielle was however able to display comprehension of the assignment when the therapist checked in, and would ask the SLP questions if unsure of the information; Id. Ms. Davis recommended that teachers encourage Danielle to ask questions to ensure that she remains focused, encourage her to ask questions and verbally repeat assignments to ensure comprehension and to work with Danielle to seek adult help during class and at home to complete her homework assignments (J13). Speech therapy services were recommended for both in and out of the classroom (J13).

41. Ms. Pearlstein noted that Danielle had made a smooth transition to middle school with respect to changing classes, manipulating the rotating schedule and getting to all her classes in a timely fashion (J15). She also noted that Danielle participated well when called on, and appeared to be happy and socially accepted by her peers and seemed to enjoy her new school; (J15, Pearstein, see also Ambrose).

Danielle’s estimated academic ability as measured by the Woodcock-Johnson III (WJR-III) spanned mostly within the average to low average range with average math skills and low average scores in reading comprehension, vocabulary and word identification subtests. Ms. Pearlstein noted that the variation of scores in the related subtests of Letter-Word Identification and Word Attack suggested inconsistency in Danielle’s ability to decode words (J15). Ms. Pearlstein, like Dr. Kemper, found that Danielle could apply phonics and structural word analysis but struggled with their automatic application, requiring additional time to read text succinctly with correct phrasing and pronunciation (J15, compare J15, J24). She also noted that Danielle’s low scores in the Reading Comprehension subtest suggested some difficulty with inferential comprehension. Danielle’s spelling, punctuation and writing fluency skills were in the average range with above average scores in the writing fluency subtest. Oral Language skills (Story Recall, Understanding Directions, Picture Vocabulary, Oral Comprehension and Sound Awareness) were all in the low average range (J15, see also Pearlstein). When this November 2003 testing is compared with previous testing done in May 2002 Danielle showed growth in her word attack skills going from the 5 th (SS 75) to the 18 th percentile. She also showed growth in her basic skills increasing from the 14 th percentile (SS 84) to the 30 th percentile (SS 92) and increasing from the 11 th percentile (SS 82) to the 19 th percentile (SS 87).21

Ms. Pearlstein also administered the WIAT written expression subtest. Danielle received a standard score of 99 with a percentile rank of 47, scores practically identical to the scores obtained in the written expression cluster of the writing portion of the WJR-III. Although Sharon noted that Danielle’s writing displayed better punctuation and more interesting vocabulary, these test scores when compared with WIAT-Written Expression subtest scores conducted by Sharon in November 1999 show a decrease from the 61 st to the 47 th percentile; compare (J38, J15, see also J1, Pearlstein).

Ms. Pearlstein also assessed Danielle’s ability to read orally using the Gray Oral Reading test (J15). Scores are calculated on the rate and the accuracy of reading increasingly difficult passages (J15, Pearlstein). Danielle took excessive time to read the passages and had many substitutions, deletions, repetitions and hesitations earning her an oral reading quotient of 79 compared with a score of 70 when Dr. Kemper tested her in February 2002; compare (J15, J24). Ms. Pearlstein concluded that Danielle may experience difficulty when asked to respond in any situations that involve time constraints and that, along with weaknesses in all aspects of reading, required that she continue to have support in order to comprehend grade-level text (J15).

42. The TEAM reconvened on April 1, 2003 to discuss Danielle’s progress and develop an amended program (J1). The TEAM discussed having Danielle participate in a small group self-contained reading class; however Sharon felt that as long as Danielle was achieving success in her regular education reading class, she should remain in that environment. The TEAM also discussed the possibility of having Danielle participate in Sharon’s language-based program. Parents and Advocate rejected this proposal because they felt, after reading the description of the program, that the student’s in that program had emotional problems that Danielle did not have (Father, Lord, J1).22 Parents also asked for services to be provided after school so that Danielle could participate in more special subjects such as art. Sharon felt that as developed the IEP could be fully implemented during the school day (J1). The proposed IEP added an extra eighty minute session of pull-out academic support per week as well as one forty minute session of speech/language services in the classroom; compare (J1, J2). There were no math goals and objectives added to the IEP although it would be appropriate to add some math support and consultation with the math teacher to help Danielle with word problems (J1, see also Pearlstein).

43. In mid April 2003, Danielle received her special education progress reports and her 3 rd term report card (J12, J94). Danielle received A’s in Art and P.E. and in those classes and in guidance (a pass/fail subject) Danielle’s teachers noted that her conduct was excellent, that Danielle was cooperative and that she was a pleasure to have in class (J94).

In science Danielle’s grades went from a B+ to a C+ due to inconsistent class participation and inability to stay consistently focused in class (J94, J94A). In social studies Danielle’s grades went down from a B- to a C due to too much socializing and lack of focus in class as well as a 60 on a chapter test; Id.

Danielle’s grades in Reading remained a C- (J94). The reading teacher (Ms. Ambrose) noted that Danielle had good conduct and effort but did not use her class time constructively (J94). Special education progress reports show that Danielle was able to keep up with the class in reading but continued to struggle with inferential comprehension and was inconsistent in asking for help (J12). Her regular education teacher however, noted that in reading, Danielle needed improvement; see Ambrose, (J94A, compare J12, J94A, J94B, J94C, J105). This however did not mean that Danielle was failing to access the curriculum (Ambrose).

Ms. Pearlstein (the special education teacher) also noted that in writing, Danielle continued to need support to expand her ideas and proofread and edit her work (J12, see also J94, J94A, J96, Pearlstein). However, Ms. Pearlstein found that Danielle showed steady progress in writing, effectively using webs, using topic sentences, developing relevant conclusions and showing understanding of adverbs and adjectives and correct punctuation; (J12, J94, J94A B, C). This was reflected in her schoolwork; see (J96-J99, J101). Her regular education writing teacher however found that Danielle needed improvement and gave her an incomplete, noting that her effort was inconsistent and that Danielle tended to socialize too much (J94, J94A).

Danielle maintained a C average in Math Extension23 due to missing homework assignments. Her grade in Math (not Math Extention) dropped from a B to a C+ due to her inability to focus completely on topics under discussion, inconsistent test and quiz grades, incomplete or late homework and not reading problems more carefully (J94, J94A, see also J104). MCAS scores in math during the spring of 2001 also showed that Danielle continued to need improvement and bordered on a warning score (scaled score 220), a drop in performance from the previous year (scaled score 234) (J109, J109A).

44. Special education progress reports also show inconsistent progress in organizational skills; Id. Danielle was able to use study guides effectively and produce well planned and well presented research projects; see (J12, J100, J102). Her assignments however were sometimes turned in late or if not late, were incomplete reducing her grade (J12, see also (J94A, J98). Ms. Pearlstein also noted that Danielle continued to need improvement in asking for help to clarify instructions; Id. Danielle did not receive any special education support with math word problems even though this was an area of need; see (J12, J1, Pearlstein). Progress reports show that Danielle was meeting her speech/language goals (J12).

45. On April 22, 2003, Parents accepted the services but rejected the placement (J1, Father). On or about that time Parents, at the suggestion of their advocate, sent an application for Danielle (to immediately attend, or attend for 7 th grade, as a day student) to the Landmark School (Landmark) a language-based program in Prides Crossing, MA (stipulation, see also J113, J106).24 . An applicant and parent statement was attached to the application (J10A). Danielle did not (and does not) want to go to Landmark but completed the statement at the request of Father (Father). She told Landmark in her application that she liked art and writing stories but did not like the pull-outs and the resource room because they make her feel stupid and she felt like she already knew the information. She also told Landmark that she liked to hang-out with her friends, play basketball, swim and do cheerleading and would like Landmark to make her feel smart (J10A). Father also told Landmark that Danielle was involved with basketball, competitive swimming and cheerleading as well as arts activities and chorus (J10A). He also told Landmark that Danielle’s greatest area of need was receiving and processing language (J10A).

46. Danielle completed sixth grade with 4 th quarter grades of an A+ in art, a B- in math (up from a C+), a C- in reading, a B- in science (up from a C+), a C in social studies and a B in writing (up from an incomplete) (J94). She received a C in P.E. because her projects were not completed and her effort needed improvement (J94). Ms. Ambrose (the social studies teacher/reading teacher) noted that Danielle tended to stray off task when doing group work and needed to apply literacy skills independently in all classes (J94) (Abrose)25 These focusing issues affected her grade (Ambrose). However, Danielle’s writing teacher noted that she displayed good team work (J94). Danielle’s final 6 th grade marks were A+ in art, B’s in P.E. and math, C- in reading, B- in science, C in social studies and a B- in writing (J94).

47. On July 12, 2003 Danielle received a private psychological evaluation from Gina-Marie Bonanno in order to provide support for her admission to Landmark (Bonanno, Lord, J11). Ms. Bonanno conducted a clinical interview and a mental status exam and made behavioral observations of Danielle (J11). She also administered the Cole Animal test, the Three Wishes test and looked at an informal writing sample (J11). Ms. Bonanno also administered the WISC-III. The WISC-IV was available at that time but was not used because its availability was unknown to Ms.Bonanno and even if known she had not been trained to administer it; however, Ms. Bonanno has experience administering the WISC III and those results are valid indicators of Danielle’s intellectual ability26 (Bonanno). Ms. Bonanno also reviewed independent evaluations, interviewed the educational advocate and Parents and reviewed school records. She did not however talk to anyone from the school or observe programs (Bononno, see J11).27 Danielle was reserved and shy and did not participate in spontaneous conversation but did answer all the questions that Ms. Bonanno asked (J11, Bonanno). She required extra time to process information and did not always ask to have the examiner repeat questions; Id. Some of the questions however were multistep instructions; see Transcript28 . Danielle achieved a WISC verbal IQ score of 97 with a performance IQ score of 116 (Full Scale 106). Previous testing on the WISC done by Sharon in 1999 show a Full Scale score of 100 with a verbal IQ of 104 and a Performance IQ of 96 indicating growth; Bonanno, compare (J39, J11). The results of subtests (i.e., comprehension, vocabulary) indicate that all of Danielle’s verbal scores were in the average range, except for those subtests that required auditory attention and reception (J11, Bonnano). Danielle’s long term memory skills were in the average range however, she displayed weaknesses in receiving short-term memory information which directly impacted her ability to comprehend messages that were complex; Id. Ms. Bonanno concluded that Danielle would have difficulty in a general learning situation because the majority of educational instruction involves some form of verbal learning. As such, Ms. Bonanno recommended that Danielle participate in a highly structured multi-sensory language based program that incorporates specialized instruction and a specialized reading program. She also recommended that the program incorporate extra time, brainstorming strategies and graphic organizers for written tasks, allows for repetition, clarification and review, pairs written and verbal instruction, teaches sequencing strategies and uses techniques such as chunking, visual imagery and mnemonic devices to improve word retrieval skills (J11).

48. On August 22, 2003 Landmark conducted an admission screening battery (J10). Landmark administered the Lindamood Auditory Conceptualization Test (LAC), the Woodcock Reading Mastery Test-Revised (WRMT-R) word identification and word attack subtests, the Gray Oral Reading Test-III (GORT), the Kaufman Test of Educational Achievement (KTEA), the Berea Visual-Motor Gestalt (BEREA) and the Detroit Test of Learning Aptitude-2 (DTLA-2) Word Sequences and Oral Directions subtests, and a Landmark informal writing sample (J10).

Danielle achieved a standard score (SS) of 6 (4 th percentile) on the DTLA-2 Word Sequences subtest dropping from a SS of 9 (37 th %) when Sharon administered the test in November 1999; compare (J10, J38). She achieved a SS of 9 (37 th %) on the Oral Directions subtest of the DTLA (J10).29 (J10). On the WRMT-R Danielle achieved a SS of 78 (7 th percentile) on the word identification subtest (J10). On previous testing by Sharon in May 2002 Danielle achieved a SS of 75 (5th %); compare (J10, J22). She scored in the 25 th percentile (SS 90) on the word attack subtest, where, when tested by Sharon in May 2000, had performed in the 50 th percentile on this test; compare (J10, J22).

On the GORT passage reading subtest Danielle’s rate scored at the 9 th percentile (SS 6), with an accuracy rate at the 2 nd percentile (SS 4) and a passage score in the 1 st percentile (SS 3) (J10). Testing by Dr. Kemper done in February 2002 showed SS of 4 in rate and accuracy with a passage score of 3, scores higher than Landmark’s more recent entrance testing; compare (J10, J24). She scored in the mid 2 nd grade range in auditory perception of speech sounds and scored in the 10 th percentile in spelling on the KTEA, a grade equivalent of 3.8.

49. Landmark did not admit Danielle for the 2003-2004 school year because it did not have an opening due to lack of staff to teach the individual tutorial. However, Danielle was eligible for admission and fit the profile of many of the students there although none would be at a lower reading level (Pulkinnen). Landmark anticipates that it is highly likely, although not certain, that it would have an opening in mid to late January (Pulkkinen).30 Landmark has 128 students at the elementary/middle school campus in Hamilton, MA.31 Approximately 1/3 (42 or 43) of those 128 students are female. Fifty-three of the 128 students are publicly funded (Pulkinnen). Of those students five or six have been diagnosed with CAP-D with one of those students in the 7th grade; Id. If Danielle went to Landmark she would have a 1:1 tutorial in reading addressing phonological issues using the LiPs methodology (Pulkinnen). Landmark’s speech/language pathologist (SLP) would also use the LiPs methodology in her auditory expression class once every other week. On the alternate week students receive social pragmatic instruction from the psychologist. Danielle would also be grouped with three girls and two boys in her oral expression/literature class. She would be grouped with one other girl and six boys in social studies, with two other girls and four boys in language arts and with one other girl and six boys in math (J10B). Her science class would contain four girls and two boys. Her art class would contain two girls and two boys and P.E. would have two girls and seven boys (J10B). The students in her academic subjects would be of similar skill level with language skills integrated throughout the curriculum. Homework is monitored through an assignment book which students take to each class and to home. Parents monitor their child’s homework completion and can contact the case manager regarding any problems (Pulkinnen).

Auditory processing issues are addressed through small or individualized instruction to reduce ambient noise issues. Classroom teachers would also reinforce attention by asking students to reverbalize, and insistence that students not interrupt each other and talk over another student along with insistence that students raise their hands and be recognized before they offer their verbal input. Teachers would also structure seating so that students can predict when their turn is coming so that they can take the time to process the information (Pulkinnen). Visual distractions are minimized by keeping a minimum of papers and extraneous visual materials on the board and through grouping students near the blackboard and where the visual information is being presented; Id. The classes in Landmark’s new wing (language arts, social studies) are in sound proof rooms; however many of the science and math classes are in the old wing with tile floors and ceilings without acoustic tiles; Id.. Landmark has had students who have required physical alteration to the rooms and has in the past put tennis balls on the bottom of chairs to decrease reverberation. It has also serviced students who have used FM receivers. However if other accommodations are required, Landmark would look at the issue with the facilities personnel and make a programmatic decision about whether it would do that for one student (Pulkinnen).

50. Landmark’s school day begins at 7:45 a.m. Students begin arriving at 7:15 a.m. and have an opportunity to have breakfast and socialize before school. Sharon is approximately sixty miles south of Hamilton on Massachusetts Route 128; see (J106, Father).32 Landmark does not currently have any other students from the South Shore at its Hamilton campus. Mr. Pulkinnen anticipates that at a minimum the trip without delays would take at least one hour and fifteen minutes (Pulkinnen, see also Father).33 The school day ends at 2:58 p.m.; Id. In the fall, Landmark offers interscholastic soccer and cross country, in the winter there is basketball and wrestling and in the spring softball, baseball and track and field. Eighth graders may also try out for the Junior Varsity or freshman teams; Id. Landmark also has a JV girls and a middle school boys basketball team. The JV girls basketball team is composed of 7 th -10 th grade girls (J10B). The middle school also has a cheerleading team that cheers at the Middle school boy’s basketball home games (J10B). Everyone who is interested in cheerleading is on the team; Id. Landmark also offers intramural soccer in the fall, intramural basketball and floor hockey in the winter, and a combination of volleyball, badminton and softball in the spring. It also offers extracurricular activities (such as art) depending on student interest ( see J106). All the sports and extracurricular activities take place after school and end between 4:30 –5:00 p.m. Students that participate in sports are picked up by their parents. It does not offer swimming (Pulkinnen, see J106). Student wants to continue participating in Sharon’s swimming program and would like to continue to play on the basketball team in Sharon. Parents feel that this would be an option because the meets and games are on the weekends.

51. Danielle liked the art on Landmark’s walls and asked about the sports there. After going to Landmark for testing Danielle still did not want to attend but told her Father she would try it for a year (Father). She would like to remain at Sharon Middle School (Father).

52. Danielle began 7 th grade at the Sharon Middle School in September 2003 (Father). She received an updated psycholinguist reevaluation from Dr. Kemper on September 5, 2003, less than one week later (Kemper, J9). Dr. Kemper readministered the tests that he gave Danielle in February 2002 in order to compare scores and draw conclusions regarding whether Danielle had made gains since February 2002; compare (J9, J24, Kemper). Dr. Kemper found that Danielle made few, if any, gains in decoding, reading fluency, reading comprehension, writing and spelling (J9, Kemper). However, Dr. Kemper also acknowledged that some or all of Danielle’s scores may be indicative of regression over the summer. However, he continued to believe that Danielle had greatly impaired ability to become a competent reader and achieve success in meeting a 7 th grade curriculum due to deficits in phonological awareness, memory and rapid naming, skills only showing a comfortable reading level in the mid 2 nd to mid 3 rd grade level, oral reading fluency at the 2 nd grade level and reading comprehension at a third grade level (Kemper). Dr. Kemper continued to recommend a substantially separate language based program that incorporates the Fast Forward34 computer program (to address language processing), LiPs35 and Project Read36 (Kemper). Although Dr. Kemper feels that these are the best methodologies there are other methodologies that can accomplish the same goals (Kemper).

53. Dr. Kemper visited Sharon’s program on September 10, 2003 and observed all of Danielle’s classes except for speech and language (Kemper, Turk). However he wrote his report before observing the program (Kemper). Dr. Kemper was only able to observe ten minutes of Ms. Lanzel’s class because as usual there was an accident on Route 128 causing him to arrive 35 minutes late ( see Kemper). Dr. Kemper did talk to the SLP about the work she did with Danielle. The SLP told Dr. Kemper that she was working on auditory processing and recall strategies in a small group and also supported her in this area in class. Dr. Kemper agreed that this work was appropriate. However he also felt that the SLP should be showing the teacher how to break down information into smaller segments to facilitate Danielle’s processing capabilities and that the SLP should also work with the teachers on how to cue and ask questions appropriate for Danielle’s level of understanding (Kemper). Dr. Kemper did notice that Danielle was participating in the special education academic labs. He also noticed that in Ms. Pearlstein’s class students did move from the simple to complex in a systematic way. He did not however observe Ms. Pearlstein explain to the students spelling rules or what the parts of speech had to do with stringing rules together, as would be required in the Orton-Gillingham or Project Read methodologies (Kemper).

Dr. Kemper also observed English, science, social studies and math. Danielle did not actively participate in any of these classes (Kemper). The English lesson he observed was well done but was fast paced and contained material from a book with long complex sentences that Dr. Kemper analyzed at above a 12 th grade level (Kemper). Danielle, although not verbally participating, was actively following the reading with a pen (Turk). Dr. Kemper also found that the social studies lesson was well presented but was also fast paced. Similarly, science, although a very structured, organized and well presented lesson, used, like the other academic subjects, difficult vocabulary and complex language that would be difficult for Danielle to decipher even with modifications (Kemper, but see J102, J103, 103A).37 Danielle did attempt to answer one science question but did, like in social studies, spend a lot of time socializing with a neighboring classmate. Math was also well presented and used strategies to recall difficult concepts. Dr. Kemper however did not feel that Danielle could comprehend these concepts due to her limited decoding abilities even with accommodations and pull out and in class special education support (Kemper, but see (Terrell, Turk).

54. On September 13, 2003 Danielle received an updated CAP evaluation from Ms. Shubow (J8). Danielle did show improvement in her hearing acuity. She also showed improvement in her auditory processing when compared to her previous audiological testing done in February 2000 (Shubow, J8). Much of her improvement in auditory processing is attributable to neurological maturation of the auditory system (Shubow, J8).38 However even with testing done under ideal listening conditions in a sound proof room, Danielle continued to display mild difficulty processing complex auditory information displaying more difficulty with longer tasks. She also continued to have difficulty accurately comprehending speech presented with competing background noise; Id. This difficulty would be exacerbated in a classroom setting where ambient noises fluctuate through the day resulting in varied attention over the course of the day or from day to day; Id. In addition, Danielle’s language-based learning difficulties combined with her auditory processing deficits put Danielle at continued risk for inaccurately perceiving auditory information in a classroom setting. This was especially true in situations where information is presented in a noisy background or is presented quickly or contains multiple parts or unfamiliar language concepts (Shubow, J8). Ms. Shubow recommended a setting that has a structured stable and supportive environment where goals, expectations and time frames are clear and extra time is given to process the information given; Id.. She also reiterated the educational modifications made in February 2000; compare (J8, J36). However, she no longer recommended an auditory trainer due to Danielle’s neurological auditory maturation (Shubow, compare J8, J36). Ms. Shubow noted that her recommendations could be implemented in a public school setting; however, implementation would be more difficult due to larger class size (Shubow). She has not observed the settings at either Landmark or the Sharon Middle School (Shubow).

55. Danielle’s current 7 th grade schedule is an inclusion program for all her academic subjects and she receives modifications such as study guides, notes, pneumonic sentences, graphic organizers, and multisensory pairing of information; see (Terrell, Lanzel)39 Danielle also participates in Chorus, P.E., Graphic Arts and Computer (J95, J119). She also receives daily pull out special education instruction with Ms. Lanzel either individually or with one or two other peers (Lanzel, J119, J120, J115G).40 This instruction includes reviewing class lessons and assignments, previewing new information, helping Danielle with organization, working on elaboration in her writing and going over parts of speech or proofreading techniques (Lanzel). One of Ms. Lanzel’s paraprofessionals also goes into Danielle’s English class four times per week and her math class once weekly (Lanzel, J120). There is also a paraprofessional assigned to Danielle’s math class (Lanzel). Ms. Lanzel also formally meets with all of Danielle’s academic teachers on a weekly basis and is available to meet with individual teachers daily as the need arises (Lanzel, Terrell). In addition, Ms. Lanzel also provides the teachers with modified material (such as vocabulary). Danielle has told Ms. Lanzel that she likes to come to see her and that she is having a great year, much better than previous years at school (Lanzel). She is motivated and has, since the beginning of the school year, been able to complete her homework; Id. She has good self advocacy skills, is motivated and has been able to demonstrate that she is learning the material (Lanzel).

56. In addition, Danielle continues to receive pull-out speech/language therapy from Ms. Reeves once a week in a small group with two other students (Reeves). In this group Danielle works on strategies for listening, recall and word retrieval. Ms. Reeves also addresses how these students can deal with difficult listening situations (Reeves). All of these students have expressive and receptive language issues. One other student has a CAP-D (Reeves). Ms. Reeves also provides support in Danielle’s English class twice a week and has as of March 24, 2003, begun providing support in social studies as a result of an interim agreement between the parties (J119, compare J95, J119). In these classes Ms. Reeves provides services to Danielle (and two other students) individually to ensure that she understands the task. Ms. Reeves also helps Danielle with organizational skills (Reeves). In addition Ms. Reeves provides Danielle’s teachers with approximately five scheduled minutes of consultation per week. Speech/language consultation is not on the IEP (Reeves, see J1).

57. Danielle also has, since approximately May 2003, as a result of an accepted IEP for services, continued to receive small group phonics based instruction twice per week from Ms. Pearlstein (Pearlstein, J116, J119, Pearlstein). The program Ms. Pearlstein uses with Danielle is the “LANGUAGE!” program (LANGUAGE!). Sharon chose the LANGUAGE! program over the Wilson program because they believed that Danielle could benefit from more of an overall language program as opposed to a program that primarily deals with decoding41 (Pearlstein). LANGUAGE! is a research-based, structured multisensory,18 strand sequential language curriculum that incorporates ongoing criterion-based assessment and ongoing staff development and support (J116).42 The program addresses deficits in reading, writing, spelling, vocabulary and grammar (J116, Pearlstein). Level 1 covers phonemic awareness, phonemic-grapheme correspondence, progressing to decoding, encoding, accuracy and fluency in passage reading to vocabulary, comprehension and broad supplementary reading to figurative language and idioms. The program also incorporates abundant writing and editing practice (Pearlstein, J116). Once students have mastered the contents of Level One they move to Level 2 and 3; Id. Level 2 covers developing fluency and automaticity of decoding and encoding polysyllabic words, morphology and syntax mastery in reading, writing and listening and expansion of grammar and composition through narrative and expository writing ; Id. Level 3 covers literacy concepts such as universal theme, narrative style, tone, point of view and character development (J116).

LANGUAGE! was originally created for children and adults who were learning English as a second language, but it is also designed to be used for students with learning disabilities that result in difficulty with reading, writing, spelling, vocabulary and grammar, or other students who function at or below the 30 th percentile or who are two or more grades below their grade level (Pearlstein, J116). It is intended to replace language arts instruction (J116). LANGUAGE! provides additional practice materials for students with identified learning disabilities (J116). Students are given a placement test and are placed according to their encoding and decoding skills (these may differ) (J116, Pearlstein). Students who have successfully completed Level 2 by the end of the fifth grade are returned to the conventional reading/language arts classroom for 6 th grade. The publisher recommends that all other students complete Level 3 before returning to the regular English classroom to ensure that older students are reasonably able to perform independently in the regular English classroom (J116). In 6 th grade, Danielle pretested into Level 2 (Pearlstein) and was placed with a group that she continues with in 7 th grade. She is hard working, motivated and has developed self advocacy skills to ask questions and self correcting skills in punctuation and grammar. When needed, Ms. Pearlstein may use elements of Wilson and work on basic decoding, encoding and phonemic awareness if it appears that a student needs such instruction (Pearlstein).

58. Naami Turk spent approximately 7+ hours observing Danielle in her program on June 16, 2003 and again on September 9, 10 and 26, 2003 as part of her part time employment as a psychologist for the Sharon Public Schools ( see J114A, Turk). (J115E, Turk).43 Sharon did not seek consent for Dr. Turk to conduct this observation (Turk). Dr. Turk also spoke to Danielle on two separate occasions44 . Danielle appeared comfortable in the middle school social setting, was socially well adjusted and was sought after by her peers (Turk, J114A, see also Pearlstein, Terrell). Danielle also appeared eager to please, diligent and motivated to succeed. Dr. Turk also observed that Danielle was comfortable with her routine and transitioned into her classroom and from subject to subject with ease, immediately settling into her desk and independently taking out appropriate books and materials (Turk, J114A). Dr. Turk also observed Danielle using paired verbal instruction and visual cuing and completing her work in a reasonable amount of time, being neither the first nor the last to finish; Id. She was, in English, able to identify the primary characters, their traits and the process leading to the outcome of a story that had been read to them, given visual and written prompts and preferential seating; see (J114A). She was also able, with preferential seating and pairing of information, to follow the science lesson, ask relevant questions, comprehend the tenets of organization and successfully present information (Turk, J114A, see also Terrell).45 Danielle was also able to actively engage in a math discussion and remain focused on the lesson. Id. She was able to use paired visual and verbal instruction successfully in her computer class, and was observed appropriately answering questions in all her inclusion settings, was open to support and feedback, and was able to usefully incorporate that feedback and ask for help to see if she had done a task correctly46 (Turk, Terrell, Lanzel, Reeves).

Dr. Turk also observed Danielle in her academic lab with Ms. Lanzel and her small group instruction with Ms. Pearlstein (Turk). Danielle enjoys going to the academic lab and appeared motivated, diligent and receptive to feedback from Ms. Lanzel; see (Turk, Lanzel, J114A). She also fully participated in Ms. Pearlstein’s class answering questions appropriately and asking appropriate questions. She was comfortable in the group, focused and able to comprehend and recall the information that was presented in a structured and predictable manner (Turk, Pearlstein, J114A). Dr. Turk has recommended that students be placed in substantially separate placements in situations where the opportunity to be educated alongside nondisabled peers is no longer possible, either because of safety reasons or because the ability to learn curriculum is just in no way accessible for that child; or in situations where the resources of a school or a program have been exhausted in terms of supporting the child in the least restrictive environment (Turk). In this situation however Dr. Turk recommended that Danielle was able to access the curriculum with supports and therefore should remain in her current placement (Turk). Father however asserts that Danielle can not read road signs when traveling, can not read directions on a brownie box and only receives good grades because he works extensively with Danielle before tests and makes her stay up and memorize everything; see (Father). Parents feel that Danielle requires a substantially separate program that will meet her needs (Father).

59. Parents learned of Dr. Turk’s observation as a result of reviewing discovery as part of this hearing and were upset because it presented information that Danielle was happy, doing well in Sharon Middle School and did not want to go to Landmark (Father). Danielle became upset with Parents but did not deny that Ms. Turk’s conclusions were correct (Father).

60. Progress notes from 7 th grade show that Danielle is generally meeting curriculum expectations in her classes (J123). Her English teacher noted that Danielle’s writing clarity had improved and she had good class participation in her English class. Her social studies teacher commented that Danielle needed to remember to review her notes each night but that she was doing a good job. Her mathematics instructor made a note of Excellent! (J123). She was however inattentive in chorus and tended to socialize too much (J123). Special education progress reports also show that Danielle is making effective progress in most areas; see (J121). She still continues however to have trouble mastering writing goals including eliminating extraneous information and proofreading (J121, Lanzel). She has demonstrated progress in her ability to focus on classroom instruction, has improved her auditory memory and responds appropriately to questions in small group discussions. In tasks involving word retrieval, Danielle continues to display periods of relative ease interspersed with periods of difficulty in her speaking and her writing (J121).

61. Danielle received first quarter 7 th grade marks of an A in Graphic Arts, an A- in P.E., B’s in Chorus, English, Science and Math, a B- in Computer Applications and a C+ in Social Studies. Her teachers, with the exception of Social Studies, noted good to excellent conduct and effort. Her English and Social studies teachers however noted inconsistent class participation and her computer teacher noted that Danielle needed to take more responsibility for her learning (J122).

62. Danielle has been admitted to Landmark and could start in late January 2004 (stipulation, see J10B). There are also openings at the South Shore Collaborative’s Intermediate Learning Disabilities (LD) Program at the Randolph Middle School and the Charms Collaborative (LD) program at the Galvin Middle School in Canton.47 Sharon’s alternative learning disabilities program is also an option. Parents like the South Shore Collaborative program but do not know if it would be appropriate. They would only like Landmark explored.

FINDINGS AND CONCLUSIONS

At issue is whether the program and services that Sharon offered Danielle at the Sharon Middle School in its current IEP provide a free appropriate public education (FAPE) in the least restrictive environment (LRE). Also at issue is whether Sharon failed to implement accepted speech/language therapy services and if so, whether Parents’ should be reimbursed for privately retaining those services.

A. THE FAPE STANDARD

Under the federal FAPE standard, an educational program must be provided under an IEP that is tailored to the unique needs of the disabled child and meets all the child’s identified special education and related service requirements. This includes academic, physical, emotional and social needs; 34 C.F.R. 300.300(3)(ii); Lenn v Portland School Committee , 910 F. 2d 983 (1 st Cir. 1990), cert. Denied, 499 U.S. 912 (1991) and Burlington v Mass. Dept. of Education, 736 F. 2d 773, 788 (1 st Cir. 1984). In addition, the IEP must be reasonably calculated to provide a student the opportunity to achieve meaningful educational progress. This means that the program must be reasonably calculated to provide effective results and demonstrable improvement in the various educational skills identified as special needs; Roland v Concord School Committee , 910 F. 2d 983 (1 st Cir. 1990).

B. LEAST RESTRICTIVE ENVIRONMENT (LRE)

In addition to meeting the above standard, special education and related services must be provided in the least restrictive environment. This means that to the extent appropriate, students with disabilities must be educated with children who do not have disabilities. Programs and services can only be implemented in separate settings when the nature and severity of the child’s special needs is such that the student can not make meaningful progress in a regular education setting even with the use of accommodations and specialized services; see 20 U.S.C. 1412 (5)(A). In Massachusetts, the IEP must also enable the student to progress effectively in the content areas of the general curriculum; 603 CMR 28.02 (18). Massachusetts has defined “progressing effectively in the general education program” as “mak[ing] documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to the chronological age and expectations, the individual educational potential of the child and the learning standards set forth in the Massachusetts curriculum frameworks and the curriculum of the district”; Id.

C. COMPENSATORY EDUCATION

Finally, FAPE also entails complying with the procedural requirements of the IDEA; 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 Public Schools , 910 F. 2d at 994 (1 st Cir. 1990); see also Murphy v Timberlane Regional Sch. Dist. , 22 F. 3d 1196 (1 st Cir. 1994) (“a procedural default which permits a disabled child’s entitlement to a free and appropriate education to go unmet for two years constitutes sufficient grounds for liability under the IDEA.”). Neither the IDEA nor Massachusetts statutes prescribe a limitations period for compensatory education claims. In Massachusetts both state and federal claims have been decided on a case-by-case basis; see e.g. Amann v Stow, 991 F. 2d 929 (1 st Cir. 1993), Murphy v Timberlaine Regional School District, 22 F. 3d 1186 (1 st Cir. 1994). When considering the appropriate limitations period, Courts examine the competing policies of encouraging rapid resolution of placement disputes with the incentive to take the necessary time to resolve the matter through good faith negotiation between the parties; compare Amann, Timberlaine supra. The BSEA has adopted a three year statute of limitations period; see Fall River Public Schools 5 MSER 183 (Crane). Such claims however may be defeated by equitable considerations; see Marshfield Public Schools BSEA 95-2757 (Sherwood 1997).

D. RULING

After review of the documents and testimony presented in this matter, I find that Sharon’s IEP as configured does not provide a FAPE to Danielle. I find however that Sharon is not responsible for reimbursing Parents for speech/language therapy during the fall of 2000 because Parents did not accept the IEP that designated those services. My analysis follows:

I. Compensatory services

The Parties do not dispute that Sharon’s June 12, 2000 IEP offered Danielle one forty minute pull-out and two forty minute in class speech/language therapy sessions; see (J6). The Parties however also do not dispute that on July 7, 2000 Parents postponed a decision on this IEP pending the completion of an independent evaluation and that services were provided once Parents in December 2000 accepted those services; see (J6, J5). Parents believed that they would still receive the services because they indicated at the TEAM meeting that Danielle should have speech therapy. However Parents did not accept those services on the IEP despite appropriate notice of their rights and access to their educational advocate. Nor did Parents at that time inform Sharon that they had obtained private speech therapy for Danielle and were seeking reimbursement. As such, Parents’ request for reimbursement is denied.48

II. The Middle School Program

After extensive review of the record I find that the Sharon’s current program for Danielle has many positive aspects. Danielle’s writing has improved as a result of support from Ms. Lanzel. She is also benefiting from the pull out support that Ms. Reeves (the SLP) provides to address retrieval and recall deficits. Although shy, she has now made many friends, is comfortable at the Middle School and participates extensively in the Sharon community. She enjoys, and is doing relatively well, in her nonacademic classes. WISC III scores done by Parents’ independent evaluator indicate growth and her ability to read orally, showed some improvement; compare J15, J24 Gray Oral scores. Although improvement is still needed, Danielle is also making some gains in asking for help when she needs it.

Parents’ claim that Dr. Kemper’s, Ms. Shubow’s and Ms. Bonanno’s testing and both Dr. Kemper’s and Ms. Lord’s observations show that Sharon’s program is inappropriate. Ms. Bonanno’s testing showed gains. Ms. Shubow indicated that while it is more difficult to implement the modifications that Danielle requires in a larger setting it could be done. In addition, she did not view Danielle’s program. Dr. Kemper’s conclusions were problematic because they were based in part on testing that should have been correlated with teacher reports and work samples (TORC-3), testing that should not be used to make specific recommendations regarding individual programming (TOWL-3) and testing that may not be appropriate for a child with CAP-D. His conclusions were also based in part upon a misconception of the services Danielle was receiving in school. In addition, Dr. Kemper deemed Sharon’s program inappropriate prior to viewing it and his comparison of testing was done using grade equivalents which he admitted were misleading and were also done at a time where regression may have occurred over the summer, indicating a need for a summer program but not a need for an out of district placement. Ms. Lord does not have the expertise to determine if a program is language-based. However, Dr. Kemper and Ms. Lord’s observations did correlate with Danielle’s former SLP’s (Ms. Davis) written observation that Danielle tended to avoid class participation because she had difficulty putting her ideas into words and her 7 th grade English and Social Studies teachers observation of inconsistent class participation.

However, despite these shortcomings IN Parents’ case, the IEP on its face is inappropriate because it does not address Danielle’s difficulty comprehending mathematical word problems that Sharon agrees would be beneficial for Danielle. Danielle is now beginning to use the computer and Inspiration software (recommended by Sharon in June 2000) to assist in writing but is not encouraged to consistently use the technology that Sharon and Ms. Shubow (the audiologist) recommends for her to use at school and at home. The IEP also does not include the Fast Forward and LindaMood Bell programs Ms. Shubow recommends to address auditory processing deficits and consultation is not included on the IEP.

Also, Sharon’s own testing shows that Danielle decodes inefficiently on materials at or above a 5 th grade level and continues to have deficits in reading comprehension (J15). Woodcock Reading Mastery testing done in May 2002 (5 th grade) show significant percentile drops in all subtests done a year and a half earlier (November 2001), dropping from the 41 st to the 14 th percentile in basic skills, from the 28 th to the 11 th percentile in reading comprehension and from the 34 th to the 12 th percentile in total reading skills ( see Finding 26). Although Sharon’s testing done in March 2003 show that her basic skills increased from the 14 th to the 30 th percentile, this percentage is still significantly below her 41 st percentile rank in November 2001. In addition, Sharon’s testing of Danielle’s written expression, using identical tests (WIAT written expression subtest), show a drop from the 61 st percentile in November 1999 to the 47 th percentile in March 2003. Danielle’s school work show that she is able, with teacher assistance, to focus in class, and has been able to make use of Ms. Lanzel’s assistance in previewing and reviewing class material. However, Landmark’s admission testing shows percentile drops when compared to Sharon’s testing indicating a failure to generalize the information she learned or substantial regression requiring an extended year program; compare J10, J24.

In addition, the current program is also inappropriate because Ms. Reeves (the SLP) only attends one social studies and two of Danielle’s English classes despite testimony that Danielle needs frequent checking to ensure that she remains on task. Ms. Reeves works on recall and retrieval but does not address breaking down language to make it accessible for Danielle because Ms. Lanzel covers those issues. Ms. Lanzel works with the teachers to modify class material. However, Ms. Lanzel is not in her classes, instead sending a paraprofessional to cover English. No evidence was offered regarding Ms. Lanzel’s work with the paraprofessional to break down the language to ensure Danielle’s comprehension or monitoring of the paraprofessional to ensure compliance with the IEP. Further the science website, although excellent, has content that has not been made language-based and as such is not fully accessible for Danielle. In addition, although the LANGUAGE! program provides the small group phonics based instruction recommended by Ms. Shubow and Dr. Kemper, it is only provided twice a week instead of the daily instruction recommended by the program.

Landmark is a language-based program with a good reputation and like Sharon has charming and personable staff. That alone however is not enough to make a program appropriate. Landmark is sixty miles away from Sharon and requires at least an hour and fifteen minute drive north on Route 128 on a good day. Most days are not good days. Landmark’s school day begins at 7:45 a.m. This would require Danielle to be ready for the bus at a very early hour. Danielle has trouble going to bed and trouble getting ready in the morning. In addition Danielle does not want to go to Landmark and although she could perhaps sleep on the bus, lacks the motivation to be ready when the bus comes.

Danielle also does not want to go to Landmark because that would require her to leave cheerleading, swimming and basketball in Sharon and her friends there, friends that have taken a long time to make due to her shyness. Parents maintain that Danielle could still participate in all her activities if she went to Landmark. This Hearing Officer disagrees. Landmark’s residential program could be an option. However the residential middle school program is very small and although if living there, Danielle could participate in Landmark’s cheerleading and basketball the evidence does not show that Danielle would be motivated to attend. In addition, less restrictive and closer collaborative and day programs have not been explored.

Testing by both Landmark and Dr. Kemper show substantial regression over the summer. As such, Sharon will locate or create a language-based summer program that will include Fast Forward and/or LiPs instruction. Sharon will also locate or create a language based program that provides the agreed upon special education support with math word problems during the school year, consultation from Danielle’s special education providers and daily phonics based instruction in reading and writing.

In addition, Sharon will immediately send a referral packet to the South Shore Collaborative’s Intermediate LD program in Randolph, MA, and any other language-based day programs in the Southeastern Massachusetts, Rhode Island or the MetroWest area that service cognitively average to above average middle school students with dyslexia and CAP-D. It will also pursuant to Special Education Hearing Rule 9 B12 fund an independent evaluator approved by the Hearing Officer, will contact that independent evaluator by January 16, 2004, and send the evaluator any records requested.49 It will also arrange on observation of its program and the South Shore Collaborative program in January 2004. The evaluator will speak to Danielle about all options, including Landmark.50 The evaluator will also view Sharon’s current program and the South Shore Collaborative program and provide a report to the Hearing Officer and the Parties.51 The Hearing will be reconvened after receipt of the report to consider the independent evaluator’s recommendations.

ORDER

Parents’ request for compensatory speech/language services for the period of September-December 2000 is DENIED. Sharon will locate or create an appropriate language-based program for Danielle pursuant to the decision within.

By the Hearing Officer,

Joan D. Beron

Date: January 12, 2004


1

Danielle is a pseudonym used for confidentiality and classification purposes.


2

Exhibit 103A and portions of Exhibit 114A were admitted over Parents’ objection; see Record.


3

The Hearing Officer received written closing arguments from both Parties on December 7, 2003. On December 11, 2003 the Hearing Officer scheduled a conference call with Counsel. It occurred on December 15, 2003. On that day the Hearing Officer reopened the record to receive additional 7 th grade information as well as information regarding substantially separate Larning diabilities (LD) programs in Southeastern Massachusetts and Rhode Island as well as additional information from Lnadmark and program options for modifications to Sharon’s program. Additional conference calls occurred on December 29, 2003 and January 9, 2004. The record closed on that day.


4

Brother also has reading and writing difficulties; see e.g. (J41, Lord).


5

These accommodations include : frequent teacher check in to ensure comprehension; clear and consistent expectations; breaking down of assignments into small, manageable parts; a reduction of work/homework when needed; utilization of organizational tools such as assignment notebooks; multisensory presentation of material; pairing of written and verbal directions (including homework); preview and review of concepts and preplanning strategies; use of computer for writing assignments; provision of study guides, modifications in tests if needed, integration of spelling and word attack skills into the reading curriculum; instruction in independent reading strategies (using context, checking for meaning, vocabulary preview, making connections, questioning) and oral presentation of books on tape when possible (J1).


6

Ms. Shubow is an ASHA certified audiologist specializing in CAP disorders. Her qualifications and testing results are not in dispute; see J115B.


7

A BEAM test is a nuerophysiological test designed to address reading difficulty (J35).


8

Proper notice was sent (J77).


9

At that time Carroll was testing the product.


10

Sharon did not receive the nueropsychological evaluation until April 10, 2001 (J72).


11

On September 14, 2001 the BSEA sent Parents information about options for mediation or a hearing (J68). Parents did not request a mediation or hearing.


12

The December 17, 2001 TEAM was rescheduled until January 23, 2002 to accommodate the Advocate’s schedule (J69).


13

Ms. Lord has a Bachelors in Social Work with some masters level classes in social work. She has been an advocate since 1985 and routinely observes programs. She does not have any training in dyslexia, language based learning disabilities or CAP-D disorders (Lord, see J115J).


14

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, compare J24, J35). 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. (J115C).


15

For example Dr. Kemper cites to a school WIAT test that was given in November 1999, stating that Danielle’s achievement test scores were “below grade level in Basic Reading, Spelling, Reading Comprehension, and Listening Comprehension.” (J24). The actual test report states that Danielle is somewhat below grade level in those areas (J38). He also states that Danielle’s math scores were “slightly below grade level”, when the actual report states they are “just about at grade level.; compare (J24, J38), see School Brief at 4.


16

Sharon used the Written portion of the Oral and Written Language Scale (OWLS) to assess written language skills. Dr. Kemper used the oral portion of the OWLS but did not use the written portion; therefore standard scores can not be compared see (J29, J35).


17

Notice was timely.


18

On June 18, 2002 Sharon’s TEAM chair sent Parents a description of the program. The description read: “The Alternative Learning Program…, previously titled the Language Based Program, provides services for students with special needs who are having difficulty succeeding in the regular education setting with typical accommodations and modifications. These students receive more academic support, and receive more modified services than other students receiving special education at Sharon Middle School. The program is designed as an inclusion program. Students in the program are able to succeed while spending the majority of their time in the regular education setting. The placement is inappropriate for any child who needs a self contained academic model in order to achieve academic success.

The program is designed for students who have …learning issues, emotional issues, or a combination of the two. Many of the students have language based learning disabilities and receive supports that cater to this specific need…The goals for the program are to provide academic success for students and reintegrate them into the regular education classroom environment with as little support as necessary to succeed” (J54).


19

Notice was timely and scheduled to accommodate the Advocate; see (J51, J52, Lord). Parent’s Rights forms continued to be sent.


20

Sharon did not ask to conduct a speech/language evaluation; see (J53).


21

These scores are all still lower than her Woodcock Reading Mastery scores of November 2000; compare (J15, J30).


22

The description of the language-based program reads in part: “The program is designed for students who have either learning issues, emotional issues, or a combination of the two. Many of the students in the program have language based disabilities and receive supports that cater to this specific need. Others who have emotional issues benefit from small group instruction and a supportive academic environment. The goals for the program are to provide academic success for students and reintegrate them into the regular education environment with as little support as possible as necessary to succeed” (J54).


23

Sharon requires an additional math class in addition to the regular math class for 6 th graders.


24

The Parties stipulated that Landmark is a language-based program. The Parties disagree about whether Landmark is appropriate for Danielle and/or whether it is practical for Danielle to attend Landmark because Prides Crossing (a section of Beverly) is approximately sixty miles away from Sharon.


25

Ms. Ambrose’s name when teaching Danielle in 6 th grade was Ms. Fulton (Ambrose).


26

Ms. Bonanno was not asked to administer achievement testing (Bonanno).


27

This evaluation was conducted in the summer.


28

For example when the Hearing Officer asked Ms. Bonanno to give an example of an instruction she replied “ I asked her or instructed her to — if she could have three wishes at this point in her life, what would her three wishes be, and I would like her to write them out for me and describe what they would be”.


29

This subtest does not appear to have been given in 1999; see (J37).


30

On or about December 17, 2003 Danielle was admitted to Landmark (stipulation, see J10B).


31

Landmark also has a 5 day residential program for the middle school containing six boys and two girls. There is also one girl who stays for three evenings a week so that she can sttend JV girls basketball practices and play in games. All the residents leave for at 3:00 p.m. on Friday and return Sunday evening at 6:00 p.m. for study hall (J10B). Parent’s did not present the residential program as an option but did supply information about the program at the Hearing Officer’s request (J10B).


32

Interstate Route 95 and Route 128 merge for a great portion of the route.


33

It took Father approximately one hour to travel from Sharon to Landmark going 65-70 miles per hour at mid-day (2:30) in April 2003 (Father).


34

Fast Forward is a 6-8 week 100 minute per day computer program that slows down and pulls apart auditory information so that those with reading comprehension and auditory processing difficulties can process the information more efficiently. The information is then slowly and systematically (through a protocol) speeded up to a normal rate (Kemper).


35

LiPS (Linda Mood Bell Phoneme Sequencing Program) is an intensive continuous five-day a week (60-80 hour and mostly individualized) phonemic awareness program where children learn labels that are associated with the particular phonemes and vowels to hear and feel differences in sounds which helps with decoding.


36

Project Read is a reading comprehension program; Story Form (breaks down a story into its beginning, middle and end, character setting, action/reaction and analysis); Project Form (teaches expository reading in social studies, math and science) and Framing Your Thoughts (a structured syntactic writing program that teaches how to string words into a noun and verb phrases and expansions) (Kemper).


37

School work samples show that Danielle was able to correctly use vocabulary such as democracy, olgarchy, monarchy and hypothesis, variable and analysis. On a 7 th grade science test with a grade of “80” , Danielle correctly answered questions dealing with “taxonomy,” “animalia”, “carnivora”, “binomial nomenclature”, “heterotroph”, and “multicellular”. She also answered the two written questions on the examination correctly and her answers, while not complex, show progress in the areas of sentence structure and spelling, as well as a grasp of the subject matter; see (J103A), (School Brief at 14).


38

Ms. Shubow noted that developmentally children have a right ear advantage, because auditory stimuli goes into the left hemisphere of the brain where language is processed where as what goes into the left ear goes into the right hemisphere and has to cross over the developing mid brain (corpus collosum). This gap closes at age 12-14 when the corpus collusum mylinizes. (Shubow)


39

Ms. Terrell (the science teacher) also has a web page with the class notes and relevant links (Terrell).


40

Ms. Lanzel is a certified master’s level special education teacher (J115G). Much of her teaching was in Israel. Ms. Lanzel has an accent but has articulate speech and is understood by Danielle despite her CAP-D (Lanzel).


41

Ms. Pearlstein has been trained in Wilson (Pearlstein).


42

The eighteen strands are: speaking/listening, phonology, phonemic awareness, orthology, phonics, word recognition, spelling, syllabication, text reading, vocabulary, comprehension, morphology, semantics, figurative language, grammar/usage, mechanics, syntax and composition.


43

Dr. Turk also consults to the Walpole Public Schools and a number of private school programs part time and has a small private practice in Sharon (Turk).


44

The Parties dispute whether Dr. Turk is an employee or an independent contractor. Parents maintain that as an independent contractor Dr. Turk’s observation and discussions with Danielle was equivalent to an evaluation of Danielle that was done without consent; see Parent’s motion to exclude. Dr. Turk however, maintains an office in the Sharon schools (Turk, see also (Father). She is supervised by the special education director and observing programs is part of her duties for Sharon (Turk). Sharon maintains that speaking to the student to determine if the program is appropriate is not equivalent to clinical interviews in an evaluation requiring consent. Dr. Turk’s discussions with Danielle were stricken from Exhibit J114A but were allowed into testimony to determine if those discussions were evaluative in nature. Those discussions are stricken on other grounds because the information relevant to this decision is cumulative of other evidence presented elsewhere in the record. The general observations are admissible; see In Re Steven A (Sherwood), 2 LRP 9679.


45

Danielle has received A’s and B’s on all of her science quizzes (Terrell, see J103A).


46

For example, Ms. Turk observed that Danielle had missed part of a direction but was able to, with support from the SLP, to correct her mistake and ask for confirmation from the teacher to see if she did it right (Turk).


47

Randolph and Canton are neighboring communities to Sharon. Sharon feels that its program is appropriate but is willing to explore other programs.


48

The Parties do not dispute that Father requested an evaluation for Danielle on September 1, 1998 and that Sharon did not conduct an evaluation until it received Parents’ private evaluation from Children’s Hospital one year later. Sharon also did not conduct the speech/language evaluation it recommended in December 1999 until May 2000. Although that claim is time-barred this failure to receive services may have an impact on Danielle’s current educational needs.


49

A list of potential evaluators will be provided under separate cover.


50

The Parties will contact Landmark to determine if the opening can remain for a brief period of time (i.e. one week).


51

Information regarding the independent evaluator will be provided under separate cover. The independent evaluator’s report may be oral. Both Parties may contact the evaluator.


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