COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Dennis-Yarmouth Regional School District
BSEA # 03-4733
DECISION
This decision is issued pursuant to 20 USC 1400 et seq . (Individuals with Disabilities Education Act), 29 USC 794 (Section 504 of the Rehabilitation Act), MGL chs. 30A (state administrative procedure act) and 71B (state special education law), and the regulations promulgated under said statutes.
A one-day hearing was held on November 24, 2003 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:
Student’s Mother
Kathryn McEwen Educational Therapist
Toni Saunders Advocate for Parent and Student
Peter Bertucci Dennis-Yarmouth Team Chairperson
Linda Santerre Dennis-Yarmouth Speech/Language Pathologist
Suzanne Street Dennis-Yarmouth Teacher
May Marvullo Dennis-Yarmouth Teacher
James McGuinness Dennis-Yarmouth Reading Teacher
Daniel Kennedy Dennis-Yarmouth Administrator of Special Education
William Butler Attorney for Dennis-Yarmouth
The official record of the hearing consists of documents submitted by the Parents and marked as exhibits P-1 through P- 24; documents submitted by the Dennis-Yarmouth Regional School District (Dennis-Yarmouth) and marked as exhibits S-1 through S- 23; and approximately five hours of recorded oral testimony and argument. As agreed by the parties, written closing arguments were due on December 9, 2003, and the record closed on that date.
ISSUES
Is the IEP for 9/15/03 to 9/14/041 proposed for Student by Dennis-Yarmouth reasonably calculated to assure her a free appropriate public education? And, if not, what changes in the IEP and/or other relief should be provided?
STUDENT PROFILE AND PROPOSED IEP
Student is a ten-year-old (date of birth 7/2/93) who attends the 5 th grade at the Wixon Middle School within the Dennis-Yarmouth School District. The parties agree that Student has been diagnosed with a language-based learning disability (specifically, dyslexia) that affects her language arts and math skills. See the written closing arguments of the parties.
In order to address Student’s special education needs, the most recently proposed IEP calls for all language arts to be taught by a special education teacher in a small group in the resource room (each day for 60 minutes), pull-out speech/language therapy by the speech/language therapist in a small group (45 minutes in a six-day cycle) and inclusion speech/language therapy by an aide (twice for 40 minutes each in a six-day cycle). Testimony of Santerre, Bertucci; exhibits S-20, P-1.
FACTS
1. Student’s mother (referred to as “Parent” in this Decision) has had long-standing concerns regarding her daughter’s language arts and math. With the encouragement of her School District (prior to moving to the Dennis-Yarmouth Regional School District), Parent arranged for a comprehensive evaluation of Student on March 10, 2000 by the Developmental Medicine Center at Children’s Hospital in Boston, MA. The evaluation was conducted by a team of clinicians that included Pamela Duncan, M.Ed., who served as the team’s educational specialist and who has 24 years of experience with Children’s Developmental Medicine Center. Testimony of Parent; exhibit P-8.
2. The educational component of the Children’s Hospital evaluation relied on observation, Student’s history and the following tests which were administered: Wide Range Achievement Test-3, Rosner Test of Auditory Awareness, Roswell-Chall Reading Test, Sucher-Allred Reading Test, and Survey of Educational Skills. The evaluation found that Student’s “decoding and sight word vocabulary were markedly below grade expectations. Her auditory awareness was uneven, and her listening skills were found to be a relative strength. Spelling skills were also relatively strong and were within grade expectations.” The educational recommendations for Student were small group or one-to-one special education instruction daily, “[g]iven her significant learning disabilities”. It was also suggested that her Resource Room time be increased to at least one-and-a-half hours per day with particular emphasis on decoding skills, sight word vocabulary, written expression, and math skills. Exhibit P-8.
3. The Children’s Hospital evaluation further recommended education re-evaluation in six months to monitor Student’s progress. What followed over the next three years were six re-evaluations (most were approximately six months apart) by Pamela Duncan at the Children’s Hospital Developmental Medicine Center to continue to measure and monitor Student’s educational progress, and to make recommendations regarding what educational services would be necessary to meet her deficits. Testimony of Parent.
4. Each of the six re-evaluations used a majority of the same tests that were administered during the original March 10, 2000 evaluation, each re-evaluation found significant language deficits and each recommended daily, intensive, small group special education instruction for all basic reading, spelling and writing skills. In addition, the re-evaluations recommended individual (or a group of two) instruction. The re-evaluations also typically warned that if Student is not able to make significant progress in reading over the next six months, a comprehensive, full-time special education program for students having significant language based learning disabilities may be required. Exhibits P-9, P-10, P-11, P-12, P-13, P-14.
5. The first two of the six re-evaluations occurred in the fall and spring of Student’s 2 nd grade (2000-2001 school year). Near the end of the 2 nd grade, Ms. Duncan’s second re-evaluation found that Student “seems to have made steady overall academic progress, but her reading, writing and math skills cluster at a mid- to late first grade level. She has particular difficulty with reading comprehension and phoneme awareness, but she uses visual memory skills to spell at a beginning second grade level.” Exhibit P-13.
6. The next three re-evaluations showed that Student was making inconsistent progress in certain areas and no progress in others. In the most recent of these three re-evaluations which occurred at the beginning of Student’s 4 th grade (2002-2003 school year), Ms. Duncan found that:
[Student’s] performance today was notable for her lack of significant progress in sight word vocabulary, decoding, spelling, and written language over the last year and a half. In fact her sight word vocabulary was on a late first grade level in 5/01, whereas today it was found to be on a mid-first grade level. Her reading fluency and comprehension have improved for a first grade passage.
7. The evaluation further reflects on the usefulness of private tutoring, initiated and paid for by Parent, and expresses serious concerns regarding Student’s language arts deficit and the need for intensive, daily, one-to-one assistance (in addition to small group language arts instruction) to remedy long-standing language arts deficits which, in Ms. Duncan’s opinion, had not yet been adequately addressed and which had become of increasing concern:
Severe deficits in phonological awareness, visual processing, and sequential organization continue to hinder [Student’s] progress in reading, spelling, and writing skills. Given her poor rate of progress, it will be important for [Student] to receive immediate, intensive special education services. . . . Her current private tutor is highly qualified to work with severely dyslexic children, and[Student] is beginning to show some gains in decoding using the Orton-Gillingham method. However, once per week one-to-one tutoring is inadequate. As noted in previous reports, [Student’s] severe learning disability needs to be treated with daily one-to-one therapy by a certified specialist. It is recommended that [Student’s] program be consolidated so that she is tutored consistently by her current private tutor.
8. Ms. Duncan again recommended that Student’s progress in reading should be closely monitored over the next four months and if she does not make “steady gains”, Student should be moved to an alternative classroom placement for students having severe language-based learning disabilities/dyslexia in order to meet her language arts needs. Exhibit P-11.
9. Student’s IEP Team met in January 2003 and proposed no individual assistance for Student in language arts. The IEP essentially called for a continuation of the kinds of services that had been offered to Student in the past, with an increase in use of the resource room for language arts (so that all of Student’s language arts would be in a small group classroom taught by special education staff), and a decrease of speech/language pull-out services (45 minutes in a six-day cycle). Exhibits S-1, P-2, P-3.
10. Not receiving the kinds of services recommended by Ms. Duncan of Children’s Hospital, Parent sought independently to obtain additional help for her daughter. During the fall of the 4 th grade (2002-2003 school year), Parent received a telephone message from her daughter’s regular education classroom teacher (Karen Carnes), recommending that Student see her after school on a regular basis to receive extra help. When Parent returned the call, she learned that Ms. Carnes had left the phone message with the wrong parent. Nevertheless, Parent persuaded Ms. Carnes to see Student after school. This began in December 2002 on Friday afternoons from 2:40 to 3:30 PM, working with the Wilson Reading program, and was extended to Thursday and Friday afternoons starting in February 2003 and continuing into June 2003. Testimony of Parent.
11. Ms Carnes provided further assistance to Parent by suggesting that Dennis-Yarmouth had a reading teacher who might be able to work with Student. Ms. Carnes contacted the reading teacher (James McGuinness) who agreed to see Student, together with another child whom Dr. McGuinness was already seeing, for a half hour most mornings before school. From February through the end of the school year, Dr. McGuinness worked with Student usually for three or four mornings each week. Testimony of Parent.
12. Dr. McGuinness, who received a doctorate degree in reading education in 1988, was employed last school year by Dennis-Yarmouth as a full-time reading teacher and this school year as a half-time reading teacher and as a half-time language arts coordinator for the School District. He has also been on the core faculty of the Leslie University Graduate School of Education since 1999. Testimony of McGuinness; exhibit S-11.
13. The services of Ms. Carnes and Dr. McGuinness were never reflected within Student’s IEPs, apparently because their assistance was being provided through regular education – Ms. Carnes as a regular education classroom teacher and Dr. McGuinness as a regular education reading teacher. Exhibits S-1, S-20, P-1, P-2.
14. During the fall of 4 th grade, Parent also engaged a private reading tutor (Kathryn McEwen) to work with Student for an hour each week beginning in October 2002. The tutoring was increased in the fall of 2003 to two hours each week. Ms. McEwen has a masters degree in education, has been a reading therapist since 1977, and has specialized experience working with persons who have dyslexia. Ms. McEwen provided Student with structured tutorial assistance primarily to address phonics through the Orton Gillingham program. Testimony of McEwen; exhibit P-22.
15. Dr. McGuinness and Student’s 4 th grade language arts special education teacher (Mary Marvullo) each performed developmental reading assessments of Student. These reading assessments are not standardized, are informal and involve subjective judgements of the tester, as compared to the standardized, formal testing performed by Ms Duncan. However, the developmental reading assessments can provide useful information to teachers regarding areas of student need and approximate measures of progress. Testimony of McEwen, Marvullo, McGuinness.
16. The developmental reading assessment performed by Dr. McGuinness when he first began meeting with Student in the 4 th grade indicated that she was reading at approximately the mid-1 st grade level. Near the end of 4 th grade, Dr. McGuinness’s reading assessment of Student indicated that she was reading at the 3.5 to 3.8 grade level. Dr. McGuinness explained that his developmental reading assessments of Student tested her reading comprehension and ability to identify words. Dr. McGuinness testified from memory regarding his testing; no assessment documents were submitted into evidence. Testimony of Dr. McGuinness.
17. The developmental reading assessment performed by Ms. Marvullo during the beginning of 4 th grade indicated that Student was reading at the beginning of the 2 nd grade level. Her assessment of Student in January 2003 indicated Student was reading at the end of second grade level, and her assessment in May 2003 indicated Student was reading at the end of third grade level. Ms. Marvullo testified that her developmental reading assessments of Student tested for comprehension and decoding skills. Similarly, Ms. Marvullo’s testimony, the teacher progress reports and grades all indicated progress regarding language arts for the 4 th grade. Testimony of Marvullo; exhibits S-3, S-4, S-5, S-6, S-7, S-8, S-9, P-15.
18. Student’s speech/language pathologist (Linda Santerre) at Dennis-Yarmouth tested Student in October 2002 and again in May 2003. The results of the Lindamood Auditory Conceptualization Test showed an improvement from a score of 49 (grade 1) to a score of 79 (grade 3) and the results of the Rosner Test of Auditory Analysis Skills showed an improvement of 4/13 correct (30% accuracy) to 9/13 (69% accuracy). Ms. Santerre testified that these tests indicated significant improvement in Student’s phonemic awareness skills. Testimony of Santerre; exhibit S-16.
19. Ms. Duncan’s evaluation of September 8, 2002 found that Student’s reading and writing skills were generally at the 1 st grade level. Exhibit P-11.
20. Dennis-Yarmouth requested that Parent arrange for another re-evaluation by Ms. Duncan at Children’s Hospital. Parent then did arrange for Ms. Duncan to perform a follow-up educational evaluation of Student on June 13, 2003, at Parent’s expense. Ms. Duncan found that Student had made progress in language arts during the 4 th grade. In the words of Ms. Duncan’s written report, Student had made “significant progress” in her sight word vocabulary and oral reading (both of which tested at the beginning to mid-second grade level) and reading comprehension (which tested at the third grade level). The evaluation also found that Student’s written expression had improved with respect to productivity, sentence structure and mechanics, and that spelling skills had improved by one year since Ms. Duncan’s previous evaluation on September 8, 2002. Exhibit P-14.
21. Ms. Duncan’s June 13, 2003 evaluation further noted that Student’s reading efficiency and phonemic awareness had shown little improvement since the most recent testing, with phonemic awareness skills still clustering at the beginning 1 st grade level. Exhibit P-14
22. Ms. Duncan’s evaluation concluded that, given Student’s “ongoing severe learning disabilities with phonological awareness and visual processing deficits”, it is recommended that she receive intensive tutoring over the summer and during the academic year that she receive all of her language arts instruction in a small group, special education setting, and that she continue to receive daily one-to-one or two-to-one tutoring for a half hour before school, in addition to the private tutoring once per week in phonics. The evaluator noted that the weakest areas to be addressed are phonics, reading fluency, phonological awareness and spelling. Ms. Duncan recommended a “structured, multi-sensory approach to phonics and phonological awareness” (for example, Orton Gillingham, Lindamood-Bell) as most beneficial. She also recommended that Student’s textbooks should be tape recorded for her. Exhibit P-14
23. Student’s Team met in September 2003 to prepare a new IEP for the 5 th grade. The Team apparently considered Ms. Duncan’s most recent re-evaluation as well as other indications of Student’s special education needs and her progress during 4 th grade. The Team did not adopt Parent’s (and Ms. Duncan’s) recommendations regarding a continuation of the kinds of individual (or with one other student) assistance that was provided during 4 th grade through Ms. Carnes, Dr. McGuinness and Ms. McEwen, but instead proposed an IEP which, with some modifications, continued the special education services described within the 4 th grade IEP — all language arts to be taught by a special education teacher in a small group in the resource room (each day for 60 minutes), pull-out speech/language therapy by the speech/language therapist in a small group (45 minutes in a six-day cycle) and inclusion speech/language therapy by an aide (twice for 40 minutes each in a six-day cycle). Testimony of Santerre, Bertucci; exhibits S-20, P-1.
24. This IEP (which is the one most recently proposed by Dennis-Yarmouth) also includes various accommodations for Student. One such accommodation is “[o]ral reading of grade level material, when appropriate”. The Team chairperson (Peter Bertucci) testified that this accommodation is intended to provide Student with oral reading of texts where Student is not able to read the text herself (for example, a social studies book which is written for comprehension at the 5 th grade level). He explained that this accommodation is available at the request of Parent so long as Student is not able to read the assigned text herself. He also noted that all of the texts are on audio tape and that Student and Parent can have access to these tapes as well. Testimony of Bertucci.
25. Student’s 5 th grade language arts special education teacher for the 2003-2004 school year (Suzanne Street) testified that she received her masters degree in special education in 1994, is certified to teach elementary grades 1 to 6 and special needs, and is in her 8 th year of employment as a special education teacher in the Dennis-Yarmouth School District. She explained that last year, she taught Student math for one hour daily, and this year teaches Student language arts and math, for one hour daily for each subject, in the resource room with four other children. She explained that for reading and writing instruction for Student, she utilizes a Scott Foresman anthology series (a reading anthology that was carried over from Student’s 4 th grade) and Project Read, which is a structured, multi-sensory, phonics-based reading program.
26. As Ms. Marvullo and Dr. McGuinness did in Student’s 4 th grade, Ms. Street used a developmental reading assessment on October 3, 2003 and again on November 7, 2003 to determine Student’s general level of reading comprehension and accuracy. On the October assessment, Student received a comprehension score of 21, placing her at the end of 3 rd grade, and received a reading accuracy score of 89%. On the November assessment, Student scored somewhat lower on comprehension (a score of 20) which continued to place her at the end of 3 rd grade, and somewhat higher on accuracy (94%). Student’s report card indicates that her language arts grades for the first term are generally in the “very good” category, and Student performed well on a test measuring site word recognition in context. Testimony of Street; exhibits S-18, S-21, S-22, S-23.
27. When asked to discuss her informal observations of what progress Student has made during her 5 th grade year to date, Ms. Street explained that her primary concern has been Student’s reading fluency and phonics (addressed through Project Read). Ms. Street testified that she has seen a “little” improvement regarding fluency, which is an area of difficulty for Student. Ms. Street further stated that she cannot tell what progress Student has made regarding phonics, that a significant amount of time this year has been spent reviewing phonics rules which Student has not yet adequately learned, that Student does not have sufficient knowledge to decode all words, and that in general Student appears to have forgotten phonics rules previously taught and/or needs further instruction on phonics rules. When asked specifically about Student’s progress this year, she responded that Student is giving her best effort, is highly motivated and is working to her potential. Testimony of Street.
28. Student’s private tutor (Ms. McEwen) who has been seeing Student once per week for an hour since October 2002 and more recently twice per week for an hour each time, has been working principally on Student’s phonics skills. Ms. McEwen also conducted her own assessment of Student in October 2003 (and had done some testing in October 2002) and reviewed Ms. Duncan’s evaluation of June 13, 2003. In Ms. McEwen’s opinion, Student is only approximately three-quarters of the way through a mastery of the phonics rules needed for a child reading at the level of the end of 3 rd grade. She further explained that currently Student cannot read anything comfortably beyond the 3 rd grade level and noted that Student would need books on tape to keep up with academics where the text is written above the 3 rd grade level. Ms. McEwen also testified that she agrees with Ms. Duncan’s June 13, 2003 re-evaluation in its entirety. Testimony of McEwen; exhibit P-23.
DISCUSSION
Introduction
Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act2 and the state special education statute.3 As such, she is entitled to a free appropriate public education (hereafter, FAPE).4 Neither her eligibility status nor her entitlement to FAPE is in dispute.
FAPE requires that the individualized education program (IEP) be tailored to address a student’s unique needs in a way reasonably calculated to enable the student to make meaningful and effective educational progress in the least restrictive environment.5 The principal issue presented is whether the programming and specialized services embodied in the School District’s most recently proposed IEP6 are consistent with this legal standard , and if not what changes in the IEP should be made and/or other relief provided.
Parent, through her advocate, takes the position that this IEP is inappropriate because it does not provide for (1) individual tutoring utilizing the Orton Gillingham or Wilson reading program, (2) a rule-based phonics reading program, (3) accommodations of books on tape, (4) computer technology including software for written expression.
Dennis-Yarmouth, through its attorney, takes the position that Student made significant progress in 4 th grade and continues to make adequate progress in 5 th grade. In light of this progress, Dennis-Yarmouth argues that it is not required to make the requested changes in services or to instruct Student using Parent’s preferred reading methodology.
I now consider each of Parent’s four concerns regarding Dennis-Yarmouth’s proposed IEP, and Dennis-Yarmouth’s response.
Individual Tutoring Utilizing Orton Gillingham or Wilson Reading Program
There are essentially two aspects of Parent’s position – (1) Student is entitled to additional, individual assistance regarding language arts, and (2) the individual assistance should use the Orton Gillingham or Wilson reading program. I will address each part separately.
1. Student’s progress in language arts .
Evaluations of Student which have been placed into evidence show little, if any, progress in language arts during 2 nd and 3 rd grades. By the end of 3 rd grade, her phonemic awareness skills continued to be at the kindergarten level, her spelling skills continued to be at the 1 st grade level, she continued to have difficulty with written expression with weak sentence structure and grammar. A May 10, 2002 evaluation (near the end of Student’s 3 rd grade) concluded that although Student had made progress in comprehension, “all language arts skills cluster on a late first grade level”. Exhibit P-10. An evaluation at the beginning of 4 th grade on September 8, 2002 further explained that Student’s test performance was “notable for her lack of significant progress in sight word vocabulary, decoding, spelling and written language over the last year and a half.” Exhibit P-11.
In 4 th grade (2002-2003 school year), Student began receiving additional instruction regarding language arts. The instruction took the form of (1) private tutoring (Ms. McEwen) using the Orton Gillingham program to address phonics for one hour each week during the 4 th grade, (2) after school instruction one afternoon and then two afternoons per week from Student’s regular education classroom teacher (Ms. Carnes) from 2:40 to 3:50 PM, and (3) before school instruction three or four times per week from a regular education reading teacher (Dr. McGuinness) for a half hour each session. (Facts, paragraphs # 10-14.)
According to Dr. McGuinness’s reading development assessments, Student gained two years growth during 4 th grade regarding reading comprehension and ability to correctly identify words. Similarly, Ms. Marvullo’s reading development assessments showed nearly two years growth in comprehension and decoding. Ms. Santerre’s testing also showed significant improvements in phonemic awareness over the same period. Ms. Duncan, in her June 13, 2003 evaluation, similarly found “significant progress” in her sight word vocabulary, oral reading and reading comprehension. She also found that spelling skills had improved by one year since her last evaluation. Thus, the evaluators were in agreement that Student’s reading comprehension had jumped to the 3 rd grade level by the time she reached the end of her 4 th grade. (Facts, paragraphs # 15-21.)
The assessments of Student do not indicate that this progress is continuing during the current academic year (5 th grade). The reading development assessments in October and November 2003 by the Dennis-Yarmouth language arts teacher (Ms. Street) continue to place Student’s comprehension within the 3 rd grade level, with no significant advancement from her reading development assessment scores near the end of her 4 th grade year. (Facts, paragraph # 26.)
Similarly, Student’s private tutor (Ms. McEwen) testified that Student currently is not able to read comfortably anything beyond the 3 rd grade level. (Facts, paragraph # 28.)
In Ms. Street’s testimony (Student’s 5 th grade language arts teacher), she at times made a general reference to Student’s making progress. However, when asked directly by the Dennis-Yarmouth attorney to describe her informal observations of Student’s progress during the 5 th grade, Ms. Street answered only that since the beginning of the school year Student has “put forth her best effort”, that she is “highly motivated”, that she is “very hard working” and that she is “working to her potential on a regular basis”. Then, when asked follow-up questions by the Hearing Officer, Ms. Street testified that she has observed that Student continues to struggle with fluency and phonics (the two principal areas of concern for Ms. Street regarding Student’s language arts), with Student making little progress regarding fluency and no demonstrated progress regarding phonics. I found Ms. Street to be an intelligent witness who answered questions carefully and deliberately.7 (Facts, paragraph # 27.)
I conclude that when Student, in 4 th grade, received the kind of individual assistance currently being sought by Parent, Student made meaningful and effective progress in language arts. Without this individual assistance, there is no evidence of progress in language arts.
2. Evaluations by Pamela Duncan .
Pamela Duncan’s evaluations recommend the kind of individual language arts assistance that Parent seeks and that Dennis-Yarmouth has declined to include within the currently-proposed IEP.
Ms. Duncan, in her six re-evaluations of Student over a three year period, consistently emphasized the importance of Student’s receiving individual, daily assistance regarding reading skills. For example, in the November 6, 2000 and May 18, 2001 evaluations, Ms. Duncan explained the importance of Student’s receiving “[d]aily instruction with phonemic awareness” in addition to her small group special education instruction in language arts. Exhibits P-12, P-13. Again, in the next three re-evaluations on November 16, 2001, May 10, 2002 and September 8, 2002, Ms. Duncan described Student’s need for daily instruction in phonological awareness, phonics skills, reading fluency and written expression. Exhibits P-9, P-10, P-11.
Although all seven evaluation reports (the initial evaluation and the six re-evaluations) of Ms. Duncan have been entered into evidence, Ms. Duncan did not testify at the Hearing.8 When this occurs, there is no opportunity to cross-examine the author of the evaluations or for the author to provide a more complete or more clear explanation for her evaluation, recommendations and conclusions. As a result, written evaluations without benefit of testimony are normally accorded significantly less weight. Similarly, in the present dispute, Ms. Duncan’s written evaluations are accorded less weight than were she to testify in person. Nevertheless, for the following reasons, I find that the written evaluation reports themselves provide credible and reliable support for the conclusion that individual assistance in language arts is needed in order for Student to make meaningful and effective progress.
As has been explained above (Facts, paragraphs # 2-8, 19-22), Ms. Duncan completed seven evaluations of Student, most of which were approximately six months apart, from March 10, 2000 to the most recent re-evaluation on June 13, 2003. Most of the tests administered by Ms. Duncan during her initial evaluation were administered during each subsequent evaluation, providing a consistency of testing and an opportunity to gauge progress over time. As a result, Ms. Duncan has had an opportunity to evaluate Student with some frequency over a significant period of time, during which Student was both receiving individual instruction (4 th grade) and not receiving individual assistance (1 st , 2 nd and 3 rd grades). No other professional person has had this opportunity, and no other evaluations of Student are as comprehensive or as sophisticated as those performed by Ms. Duncan.
Dennis-Yarmouth has not sought to establish that Ms. Duncan is in any way unqualified to perform her evaluations or that her tests are invalid. In fact, Dennis-Yarmouth actually requested that Parent obtain the June 13, 2003 evaluation from Ms. Duncan (at Parent’s expense) near the end of the 4 th grade year, presumably expecting that Ms. Duncan would find that Student had made significant progress since her previous evaluation of Student in September 2002. Testimony of Parent.
During the Hearing, only two persons testified that they had reviewed Ms. Duncan’s most recent re-evaluation (June 13, 2003) and offered an opinion on it. The June 13 th re-evaluation is the most relevant and important for purposes of this dispute because its recommendations are most recent and reflect the gains that Student made during 4 th grade. Parent’s private tutor (Ms. McEwen) testified that she had reviewed the evaluation and agreed with it. Dennis-Yarmouth’s speech/language pathologist (Ms. Santerre) testified that she had reviewed the evaluation, she could not account for differences in her own testing and Ms. Duncan’s testing and conclusions relative to phonemic awareness (she opined that Ms. Duncan may have confused phonemic awareness with phonics), but she otherwise did not disagree with the evaluation. Testimony of McEwen, Santerre.
The reliability of Ms. Duncan’s evaluations may also be considered in light of the progress Student has made over the past four years. As explained above in part B1 of this Decision, when Ms. Duncan’s recommended educational services were provided to Student (4 th grade), she made meaningful and effective progress regarding language arts; but when the small group instruction has been provided without the individual assistance (3 rd and 5 th grades), there is no substantial evidence in the record that meaningful and effective progress was made.
For these reasons, I find that Ms. Duncan’s six re-evaluations (and, in particular, the June 13, 2003 re-evaluation which occurred at the end of 4 th grade) provide credible and reliable evidence in support of Student’s need for daily individual assistance in order to make meaningful and effective progress in language arts.
I now consider what evidence Dennis-Yarmouth has provided in rebuttal to Ms. Duncan’s recommendations.
3. Opinion of James McGuinness .
During the evidentiary Hearing, Dennis-Yarmouth’s reading teacher (James McGuinness) testified that he believed that because Student had attained reading comprehension at the 3.5 grade level, it was not necessary to provide further individual assistance to Student. Dr. McGuinness opined that once a child reaches this level of reading comprehension, then almost all additional improvement is obtained through the practice of reading itself. Dr. McGuinness therefore recommended a continuation of Student’s small group language arts instruction (currently provided within Student’s IEP), with oral reading (and tracking by Parent) for 20 minutes each night at home. Testimony of Dr. McGuinness. For reasons explained below, I do not find this opinion persuasive.
Dr. McGuinness’s opinion is that no further individual assistance is warranted or needed once a child reaches a reading comprehension of 3.5 grade level. In order for this opinion to be persuasive, I must find that he has sufficient expertise to draw this conclusion with respect to Student’s special education services. I do not doubt Dr. McGuinness’s expertise regarding reading. His resume alone indicates an impressive array of academic and professional experience in this area.9
Yet, it is also relevant to note that Dennis-Yarmouth considered the assistance provided by Dr. McGuinness to be regular education. Apparently, Dr. McGuinness is not part of the special education services provided by Dennis-Yarmouth, and Dennis-Yarmouth saw no need to describe his services (while they were being provided) within Student’s IEPs for the 4 th grade, nor did Dennis-Yarmouth consult with Dr. McGuinness regarding the special education services to be offered in the IEP for 5 th grade.
Dr. McGuinness’s expertise regarding reading is further confirmed by his resume which is a comprehensive four-page description of his academic and professional experience in education, including a listing of sixteen university courses taught and twenty-seven presentations and workshops. Exhibit S-11. I can find nothing within this resume which indicates that Dr. McGuinness has any particular experience or expertise regarding special education in general or the needs of children with Student’s disabilities in particular.
Dr. McGuinness did not provide any basis, through his testimony, from which one might conclude that he has expertise or experience relevant to Student’s special education needs. I am therefore not persuaded that Dr. McGuinness has the requisite expertise to make a recommendation regarding what special education services should be provided Student.
I have a further concern with Dr. McGuinness’s assessment that Student no longer needs individual reading assistance. Dr. McGuinness applied a general rule to Student – that is, once a child reaches a certain level of reading comprehension (3.5 grade level) no further individual assistance is warranted or needed because almost all further improvement is the result of reading itself. In order for Dr. McGuinness’s opinion to be persuasive, I must find that he has taken into consideration Student’s unique needs and determined what special education services are required in order to meet those needs so that Student is likely to make progress.10
The special education evaluations and the testimony by those special educators who have worked with Student indicate that her language arts needs are complex. Student’s reading comprehension is her strength but only one indicator among many of her language arts profile. Testimony of Marvullo, Street, Santerre, McEwen; exhibits S-16, P-14. Dr. McGuinness’s testimony provides no basis from which I may conclude that he understood and took into consideration Student’s unique array of special education strengths and deficits regarding language arts, and that in light of this profile, was able to conclude that his general rule would in fact apply to Student. I therefore cannot determine whether Dr. McGuinness considered Student’s particular special education needs, or merely applied a general rule based on his testing of Student’s reading comprehension.
Finally, I suggest that if Dr. McGuinness’s opinion were correct (that because of Student’s current reading comprehension level, she will make meaningful gains as a result of doing more reading rather than through individual assistance), one would expect to see at least some continuation of progress being made in the 5 th grade as a result of the services provided by Dennis-Yarmouth. However, as explained in part B1 of the Decision, there is no basis for concluding that Student has been making progress in language arts so far during the 5 th grade.
For these reasons, I find Dr. McGuinness’s opinion (that Student does need further individual assistance regarding reading) to be unpersuasive.11
Dennis-Yarmouth put into the record no additional opinion evidence opposing the need for a continuation of individual services to Student during 5 th grade.
4. Dispute regarding methodologies .
For the reasons explained above, there is persuasive, unrebutted evidence that additional individualized reading instruction (in order to supplement the language arts class currently being provided by Dennis-Yarmouth) is necessary in order to provide Student with FAPE. Parent has further requested that the individual reading assistance utilize the Orton-Gillingham or Wilson reading program.
As Dennis-Yarmouth correctly points out, case law generally allows the School District discretion to determine the appropriate methodology of the education services so long as the student is able to make meaningful and effective progress.12 Parent has provided no evidence from which I may conclude that Dennis-Yarmouth will likely utilize a methodology that will result in a denial of Student’s right to FAPE.
Under these circumstances, I have no basis for ordering Dennis-Yarmouth to implement Parent’s preferred methodology.13
5. Conclusion and relief .
I conclude that in order for Dennis-Yarmouth’s most recently proposed IEP to be tailored to address Student’s unique needs in a way reasonably calculated to enable her to make meaningful and effective educational progress, the IEP must provide Student with additional individual language arts educational services. The additional language arts services should be consistent with Ms. Duncan’s June 13, 2003 re-evaluation regarding tutoring assistance (recommendation # 3 of exhibit P-14) and reflect both the daily half hour individual assistance and the hour per week of private tutoring that occurred during 4 th grade. I further conclude that Parent should not have had to pay for the individual tutoring services which Dennis-Yarmouth failed to provide during the course of the current IEP and that an additional educational assessment by Ms. Duncan is necessary to ensure appropriate services continue to be provided.
Accordingly, the following relief is ordered:
· Dennis-Yarmouth shall provide individual, language arts assistance to Student as follows: (1) the total amount of individual assistance for language arts must be at least three and a half hours per week, (2) the assistance must be provided by someone qualified to address the areas of weakness identified by Ms. Duncan in recommendation # 3 of her June 13, 2003 evaluation (phonics, reading fluency, phonological awareness and spelling), and (3) the assistance must be designed to complement the other special education services being provided by Dennis-Yarmouth. Dennis-Yarmouth shall engage and pay Ms. McEwen to provide this assistance from the date of its receipt of this Decision until such time as Dennis-Yarmouth provides this assistance to Student through a qualified person of its choosing.14
· Dennis-Yarmouth shall reimburse Parent for all out-of-pocket expenses which Parent has incurred in payment of Ms. McEwen from September 15, 2003 (which is the beginning date of the current IEP) through the date of Dennis-Yarmouth’s receipt of this Decision.
· Dennis-Yarmouth shall engage and pay for Ms. Duncan to perform a re-evaluation of Student at or near the end of the current 5 th grade year.
Remaining Issues in Dispute
1. Rule-based, phonics reading program .
Student’s current special education teacher (Suzanne Street) testified that Student currently is being taught reading skills through Project Read which is a multi-sensory, phonics-based reading program. This program, according to Ms. Street, is structured with individual lessons which follow sequentially. Ms. Street is an experienced and well-educated teacher whose testimony was both credible and reliable. (See Facts, paragraph # 25.) Parent has provided no evidence to rebut this testimony or otherwise to establish the need for a different reading program for Student.
For this reason, I find that the Dennis-Yarmouth IEP, as implemented in Student’s 5 th grade, adequately addresses Parent’s concern regarding use of a rule-based, phonics reading program.
2. Books on tape .
Parent has provided evidence indicating the need for books on tape. Testimony of McEwen; exhibit P-14. Student’s currently proposed IEP includes the provision of oral reading of grade level material. The testimony of the Team chairperson (Peter Bertucci) clarified that this accommodation may be utilized at the request of Parent when Student is not able to read the assigned texts. He further noted that this accommodation may include books on tape, and that the books on tape are currently available for Student’s textbooks. (See Facts, paragraph # 24.)
For these reasons, I find that the IEP, as understood by Dennis-Yarmouth, gives Parent the right to books on tape when Student is not able to read an assigned text book.
3. Computer technology .
Parent has taken the position that the IEP should provide for computer technology, including software for written expression. There was no substantial evidence presented on this issue. For this reason, I decline to find that Dennis-Yarmouth’s IEP is deficient for this reason.
For this reason, I do not order any relief regarding this issue.
ORDER
Dennis-Yarmouth’s most recently proposed IEP is not reasonably calculated to provide Student with a free appropriate public education because it does not include additional individual assistance regarding language arts. Dennis-Yarmouth shall provide relief, as described in part B5 of this Decision, and amend its IEP accordingly.
Dennis-Yarmouth shall provide Student with books on tape for those textbooks which she is unable to read and understand adequately.
By the Hearing Officer,
William Crane
Dated: December 19, 2003
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL
Effect of the Decision
20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must seek such stay from the court having jurisdiction over the party’s appeal.
Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).
Compliance
A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appeals contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).
Rights of Appeal
Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).
Under Massachusetts General Laws, Chapter 30A, Section 14(1), appeal of a final Bureau decision to state superior court must be filed within thirty (30) days of receipt of the decision.
The federal courts have ruled that the time period for filing a judicial appeal of a Bureau decision in federal district court is also thirty (30) days of receipt of the decision, as provided in the Massachusetts Administrative Procedures Act, M.G.L. c.30A . Amann v. Town of Stow , 991 F.2d 929 (1 st Cir. 1993); Gertel v. School Committee of Brookline , 783 F. Supp. 701 (D. Mass. 1992).
Therefore, an appeal of a Bureau decision to state superior court or to federal district court must be filed within thirty (30) days of receipt of the Bureau decision by the appealing party.
Confidentiality
In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
Record of the Hearing
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.
1
Exhibits S-20, P-1 .
2
20 USC 1400 et seq .
3
MGL c. 71B.
4
MGL c. 71B, ss. 1 (definition of FAPE), 2, 3.
5
For a more complete explanation of this standard and the legal authorities upon which it is based, see In re: Arlington , 37 IDELR 119, 8 MSER 187, 193-195 (SEA MA 2002). See also 603 CMR 28.05(4)(b) (Student’s IEP must be “ designed to enable the student to progress effectively in the content areas of the general curriculum”); 603 CMR 28.02(18) (defining the phrase “ progress effectively in the general education program”).
6
Exhibits S-20, P-1.
7
The only evidence of progress in language arts in 5 th grade appears to be Student’s report card, which generally indicates grades of “very good” during the first term, and a written progress report regarding a speech/language goal in the IEP. Exhibits S-18, S-19. Ms. Street testified that Student’s grades this year accurately reflect Student’s performance but are based on a modified curriculum. I take these grades to mean that Student has met certain, unstated expectations of the teacher. Without more, there is no basis upon which I may determine, with any degree of certainty, what progress, if any, these grades reflect. Compare where a special education student is being educated in the regular education curriculum. Board of Educ. v. Rowley , 458 U.S. 176, 102 S.Ct. 3034 (1982) (“when the [student] is being educated in the regular classrooms of a public school system, the achievement of passing marks and advancement from grade to grade will be one important factor in determining educational benefit”). The speech/language progress report states several general conclusions that Student is making progress. This does not provide sufficient basis from which I may determine what progress Student was making in 5 th grade.
8
In two conversations with the Hearing Officer (one prior to the Hearing and one at the Hearing), Parent’s advocate reported that Ms. Duncan had refused a request to testify at any time under any conditions (including by telephone). Dennis-Yarmouth’s attorney stated that the written reports would speak for themselves and that he would not argue that her testing was invalid. Parent’s advocate and Dennis-Yarmouth’s attorney each made the decision not to have Ms. Duncan subpoenaed to testify.
9
I also note that Dr. McGuinness’s assistance to Student was highly valued by Parent and presumably made a significant contribution to Student’s progress during her 4 th grade. In addition, it is commendable that Dr. McGuinness provided the additional services to Student during 4 th grade not because he was required or asked to do this by Dennis-Yarmouth but simply because he enjoys helping children to learn to read and because he was able to work with Student while he was helping another child. Testimony of Parent, McGuinness.
10
State and federal special education laws mandate that services be appropriate to address the “unique” needs of the particular child. E.g., 20 USC 1400(d)(1)(A) (purpose of the federal law is to ensure that children with disabilities have FAPE that “emphasizes special education and related services designed to meet their unique needs . . . .”); 20 USC 1401(25)(“special education” defined to mean “specially designed instruction . . . to meet the unique needs of a child with a disability . . .”); Honig v. DOE , 484 U.S. 305, 311 (1988) (FAPE must be tailored “to each child’s unique needs”); 34 CFR 300.26 (“the term special education means specially designed instruction . . . to meet the unique needs of a child with disability . . .); 34 CFR 300.300(3)(ii) (“services and placement needed by each child with a disability to receive FAPE must be based on the child’s unique needs and not on the child’s disability”); 603 CMR 28.02 (21) (“ special education shall mean specially designed instruction to meet the unique needs of the eligible student . . .”).
11
I also note that Dr. McGuinness was not a part of the IEP Team meeting in September 2003 when the decision was reached by Dennis-Yarmouth not to provide a continuation of the individual assistance to Student, nor was he consulted regarding the decisions made at that meeting. In its written closing argument in the present dispute, Dennis-Yarmouth does not reference or rely upon Dr. McGuinness’s opinion that additional individual reading services are not necessary for Student.
12
E.g., E.S. v. Independent School District, No. 196 , 135 F.3d 566 (8 th Cir. 1998) (“As long as a student is benefiting from her education, it is up to the educators to determine the appropriate methodology.”).
13
For a useful discussion of the distinction between methodology and appropriateness of services, see T.H. v. Board of Education of Palatine , 55 F. Supp.2d 830 (N.D.Ill. 1999) (“But even if we grant that the district has a viable methodology in place, the heart of this dispute is whether the district has adequately tailored its methodology for T., chosen the right setting for T.’s training, or allocated sufficient resources to allow T. to benefit from that methodology.”).
14
On the basis of her testimony and resume, I find Ms. McEwen (Parent’s private tutor) to be highly qualified to address Student’s reading needs.