Dulcinea and Groton-Dunstable Regional School District – BSEA # 06-4695
COMMONWEALTH OF MASSACHUSETTS
Bureau of Special Education Appeals
In Re: Dulcinea1 & Groton-Dunstable Regional School District
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 regulations promulgated under those statutes. A hearing was held in the above-entitled matter on June 12 and 19, 2006, at the Massachusetts Bureau of Special Education Appeals in Malden, MA. Present for all or part of the proceeding were:
Anne Lowell Head of Lower School, Carroll School
Lisa Shaw Pediatric Neuropsychologist
Gerri Shubow Audiologist
Susan Grant Educational Evaluator
Joan Endicott Special Education Director, Groton-Dunstable Regional School District
Peter Myerson Principal, Groton-Dunstable Regional School District
Phyllis Hamel Special Education Teacher, Groton-Dunstable Regional School District
Doris Sirois Team Chair, Groton-Dunstable Regional School District
Adam Savage-Adalman School Psychologist, Groton-Dunstable Regional School District
Joyce Bertrand Second Grade Teacher, Groton-Dunstable Regional School District
Jayne Girouard Third Grade Teacher, Groton-Dunstable Regional School District
Elaine Lord Advocate for Parents
David Stewart Attorney/observer
Sean T. Goguen Attorney for Parents
Karen Laufer Attorney for Groton-Dunstable Regional School District
Heidi Bates Court Reporter
Laurie Jordan Court Reporter
Lindsay Byrne Hearing Officer
The official record of the hearing consists of documents: submitted by the Parents marked P-1 through P-63; documents submitted by the School marked S-1 through S-27, S-29 through S-49, S-51 through S-59; and approximately 11 hours of recorded oral testimony and argument. Both parties were represented by attorneys at the hearing. Both submitted written closing arguments on July 28, 2006, and the record closed on that day.
1. Whether the 11/22/05-11/22/06 Individual Education Plan proposed by the Groton-Dunstable Regional School District is reasonably calculated to provide a free, appropriate public education to Dulcinea in the least restrictive setting?
2. If not, does Dulcinea require placement in the Carroll School, a private day, special education school, in order to receive a free, appropriate public education?
Summary of the Evidence
1. Dulcinea is a nine year old girl who attends the Swallow Union School, a
public elementary school in Groton, MA. During Dulcinea’s first grade year, 2003-2004, Dulcinea’s mother became concerned about Dulcinea’s progress in the acquisition of reading skills. (Parent; P-1, 5) Dulcinea then received additional reading support through the regular education program “Reading Recovery”. The Parent’s concerns continued and a child study Team was convened in May of the 1 st grade year. The child study Team referred Dulcinea for a special education evaluation. The Team also developed an Academic Remediation Program which provided intensive phonics instruction 30 minutes per day as a regular education support pending the results of the special education evaluation process. (P-11, P-6, 7, 8, 12, 14) The Parent consented to the proposed special education evaluation on June 22, 2004. (P-14, S-13; S-15)
2. Dulcinea entered the second grade in September 2004, and received extra reading services through the Academic Remediation Plan. Also in September 2004, Groton-Dunstable Regional School District (hereinafter “GDRSD”) conducted psychoeducational and academic achievement evaluations and an educational assessment. (P-24, 25, 26; S-31) The Special Education Team met on October 20, 2004. The team found Dulcinea to have at least high average cognitive potential. Academic achievement testing results placed her skills in the broadly average range with the notable exception of low reading comprehension. Dulcinea’s second grade teacher, Joyce Bertrand, reported that while Dulcinea was making progress in the general curriculum she was not progressing at the same pace as her peers. She demonstrated relatively poor decoding, encoding and attentional skills. (P-26, S-31; P-28, S-18; Betrand) The Team found Dulcinea eligible for special education and developed an IEP providing for: 30 minutes of language arts instruction and support in the regular classroom each day; and eight half-hour sessions of small group or individual reading support outside the classroom each week. The Parents accepted the IEP on October 28, 2004. (P-29, S-3, 4) The IEP was to run from October 2004 to October 2005. It is the last accepted IEP.
3. In October 2004 Lisa Shaw, of Coffman Neuropsychological Associates, conducted a neuropsychological evaluation of Dulcinea at the Parents’ request. Her results were consistent with the GDRSD Team. She found Dulcinea’s reading to be slow paced and characterized by reversal errors and poor comprehension. She reported that Dulcinea scored about one year below her then current grade level on standardized reading testing. Ms. Shaw found Dulcinea to have an “emerging dyslexic disorder,” and recommended individualized instruction in reading, spelling and writing. She noted that Dulcinea appeared to be responding positively to school based interventions. (P-34; Shaw)
4. The Parent testified that Dulcinea made little or no progress in reading skills over the course of the 2004-2005 school year. The Parent did homework and test preparation with Dulcinea up to four hours each night so that she could participate “appropriately” in the mainstream class. She testified that Dulcinea was anxious and sad about school because it was too hard. The Parent did not observe the second grade mainstream class or specialized services. She did not request additional or different services for Dulcinea at any time during the 2004-2005 school year.
5. Phyllis Hamel is the certified special education teacher who evaluated Dulcinea, and provided the daily specialized reading services to her under both the Academic Remediation Plan and the 2004-2005 Individualized Education Plan. (S-56) Ms. Hamel taught Dulcinea using a modified Wilson program, a structured, sequential, phonetically based reading system, five periods per week, and the Reading Milestones program, a controlled vocabulary literature program linked to the Wilson program, three times a week. She also used a specialized computer program, Lexia, and the Spire reading series which focuses on vocabulary, fluency, phonemic awareness and comprehension as supplements. Ms. Hamel testified that Dulcinea made slow, but steady, progress in the acquisition of reading skills over the course of the 2 nd grade. Initially Dulcinea resisted learning or using special reading strategies, but once she became comfortable and incorporated them into her reading approach she began making more rapid progress. Dulcinea began 2 nd grade, reading at a first grade level in the Reading Milestones Program. She progressed to a 2 nd grade level by the end of the school year. According to Ms. Hamel, Dulcinea made sufficient progress over the course of the 2 nd year toward mastery of the goals set out in her 2004-2005 IEP. (S-32, 33, 34, 35; P-37; S-49)
6. Joyce Bertrand, Dulcinea’s second grade classroom teacher, described her as kind, cooperative, social, hard working, persistent and eager to learn. After initially resisting help, Dulcinea learned helpful reading strategies and was able to apply them in the general classroom. Thereafter Dulcinea fully participated in all aspects of the second grade classroom and curriculum. Ms. Bertrand testified that, based on the writing prompts, the Diagnostic Reading Assessments (“DRA”) and the portfolio reviews she conducted with Dulcinea throughout the second grade, she believes Dulcinea made “significant” overall educational progress in the second grade. She did not recommend any additional or different services for Dulcinea’s third grade year. (Bertrand; See also P-60; P-37)
7. In June 2005, GDRSD offered to provide two hours per week of specialized reading instruction to Dulcinea over the summer. The Parent declined the School’s proposal and arranged instead for tutoring 4 hours per week. (S-8, 9, 29; P-36; Parent)
8. Throughout the 2005-2006 school year, Dulcinea’s 3 rd grade year, Dulcinea followed the IEP developed in October 2004. The Team reconvened on November 22, 2005, to develop a new IEP for the third grade year. The Team found that Dulcinea had achieved the goals and objectives set out in the 2004-2005 IEP and proposed new goals in reading, language arts and academics. (S-19, S-30 P-35) The Team developed a new IEP calling for 4 fifty minute periods of academic assistance in the regular classroom and 4 sixty minute periods of special education instruction in reading and language arts. The Team also developed specific testing accommodations for use during the administration of the MCAS. (P-41, S-2, S-12, S-40) On January 4, 2006, the Parents postponed a decision on the proposed IEP while they sought further neuropsychological testing. The School requested permission to implement the increased services and the testing accommodations pending the evaluation results. (S-16, S-14, P-44) The Parents declined to grant permission at any time during the remainder of the third grade year. The Parents rejected the proposed IEP on March 30, 2006. (P-53, S-1) At no time during the 2005-2006 did the Parents request GDRSD to provide additional or different special education services to Dulcinea. (Parent; Hamel)
9. Dulcinea’s third grade classroom teacher, Jane Girouard, described Dulcinea as sociable, friendly, artistic and pleasing. (S-56) She stated that Dulcinea was a good self-advocate, and volunteered to make oral presentations and art projects for the whole class. Ms. Girouard testified that over the course of the 3 rd grade year Dulcinea made progress commensurate with her peers and potential, consistent with her disability. She achieved grades of A in all regular education subjects without accommodations. In the beginning of the school year Dulcinea’s writing was slow and labored and she used accommodations such as scribing to complete assignments. By year’s end Dulcinea earned an A on an independent assignment with no accommodations. On a writing prompt administered on May 11, 2006, Dulcinea achieved at least proficient on all benchmarks indicating that she was doing what was expected of exiting third grade students. (S-43; S-47) Dulcinea advanced through the year from a 2 nd grade spelling list with accommodations to a regular 3 rd grade spelling list without accommodations. (P-45; P-63) While Ms. Girouard acknowledged that Dulcinea still had difficulty reading accurately and independently at grade level at the end of the third grade, she claimed Dulcinea was “close”. Ms. Girouard recommended continued special education assistance for the fourth grade: an aide in the classroom to provide reading and language support for social studies and science, and continued direct instruction in reading outside the classroom. (Giroud; S-39; S-41; S-42; S-43, S-44, S-45, S-59; See also testimony of Hamel)
10. Ms. Hamel continued to work directly with Dulcinea throughout the 2005-2006 school year, following the October 2004 to October 2005 IEP. For the next IEP Ms. Hamel recommended accommodations for presentation and production of instruction and testing as necessary for Dulcinea to achieve to her potential. She also recommended an increase in direct reading instructional time using the Wilson program from the 2004-2005 IEP time of ½ hour daily to the one hour daily proposed on the 2005-2006 IEP so that the full, unmodified, Wilson program could be delivered.3 Ms. Hamel testified that despite the fact she could not increase the reading service time to Dulcinea or modify the goals and objectives of the IEP to reflect Dulcinea’s mastery of them, Dulcinea continued to make slow, but steady, progress in all areas of reading. (S-36; S-35; P-54; S-16; S-14) Ms. Hamel pointed to the results of the Diagnostic Reading Assessment, an untimed test, which shows Dulcinea’s progress over time: in September 2005 Dulcinea received a DRA score of 16; in October 2005 Dulcinea received a DRA score of 18; in February Dulcinea received a DRA score of 20; in April 2006 Dulcinea received a DRA score of 30. Students reading at grade level at the end of 2 nd grade typically achieve a DRA score in the 24-28 range. Students reading at grade level at the end of 3 rd grade typically achieve a DRA score in the 34-38 range. According to Ms. Hamel though Dulcinea was still reading below her grade level she was showing “effective” progress. By the end of the 2005-2006 school year Dulcinea was reading library books at the mid-third grade level independently. She had acquired sufficient skills and strategies to remediate her disability and to participate without modifications in the content of the general classroom curriculum. (Hamel; S-30 S-39, S-59)
11. The Parents applied for admission to the Carroll School on October 5, 2005. Dulcinea was admitted to the Carroll School on March 1, 2006. The Parents signed an enrollment agreement on March 21, 2006. (S-57; P-59) The mother testified that she intended to place Dulcinea at the Carroll School during the summer, 2006, and for the 2006-2007 academic year regardless of any special education program developed for Dulcinea during 2005-2006 or 2006-2007 because she believed Dulcinea could learn “better” at the Carroll School (Parent)
12. Susan Grant, a special education teacher, conducted an educational evaluation of Dulcinea in January 2006. They met one time for about 2 ½ hours. Ms. Grant testified she also received Dulcinea’s progress reports, report cards and IEPs, though she was unable to identify which IEP Dulcinea was following at the time of the evaluation. On standardized testing (WIAT-II) Ms. Grant found that Dulcinea’s reading/writing skills fell in the low-average range for her grade, while her math and listening comprehension skills ranged from grade level appropriate to higher. Dulcinea demonstrated good persistence and attention during testing. She also demonstrated knowledge and application of strategies derived from targeted reading instruction. Ms. Grant testified that Dulcinea had made progress in the acquisition of reading skills, and that the type and level of reading instruction and support, including the proposed goals and objectives developed by GDRSD, are appropriate for her. Nevertheless, Ms. Grant recommended that Dulcinea be placed in a separate school which provides modified curriculum, instruction and expectations for small groups of language/reading disabled students. Ms. Grant testified that Dulcinea would make more rapid progress in that type of setting (P-46; Grant)
13. Lisa Shaw re-evaluated Dulcinea in February and March 2006. (See ¶ 3 compare P-34 and P-56) Dr. Shaw found that Dulcinea had made progress across the board. Cognitive function scores on the WISC showed no decreases in any individual score, though discrepancies widened as Dulcinea’s scores increased more in some areas than in others. In academic achievement testing Dulcinea demonstrated at least one year’s growth in the interval between Dr. Shaw’s evaluation sessions, (compare WRAT scores P-34 and P-56) demonstrating age level performance in math, listening comprehension and word knowledge. Dulcinea continued to demonstrate difficulty with tasks involving phonological processing and production. Reading and writing scores, while improved, continued to lag below grade level. Dr. Shaw concluded that Dulcinea exhibits a “pattern of language difficulty and academic dysfunction which is consistent with a dyslexic disorder”. (P-56) To address Dulcinea’s educational needs Dr. Shaw recommended:
a) placement in a small, self-contained “fully integrated” language based class with age and educational peers;
b) a rich, therapeutic language environment and accommodations in all academic content areas;
c) explicit instruction in reading and written language by special education teachers using a direct, structured, phonics based program.
(P-56) Dr. Shaw testified that she never observed Dulcinea in the classroom setting, never spoke to any of her teachers, and did not review Dulcinea’s academic progress reports or her IEPs. Dr. Shaw further stated that she was not aware of Dulcinea’s current level of academic functioning and did not know what special education services Dulcinea was receiving through GDRSD. (Shaw)
14. The Parents arranged two audiology evaluations due to their ongoing concerns about Dulcinea’s hearing, listening and phonological processing skills. In May 2005, the audiologist and speech-language pathologist at Children’s Hospital found Dulcinea’s hearing, language and phonological processing skills to be within normal limits. Due to significantly impaired reading skills, however, the Children’s Hospital team recommended that Dulcinea receive Wilson reading program instruction five times per week, and additional direct reading support three times per week. (P-35) This recommendation was adopted by the Team at its next meeting on November 22, 2005 and incorporated into the proposed 2005-2006 IEP. (S-2; S-12; S-40; P-41)
15. Gerri Shubow, an independent audiologist, who evaluated Dulcinea in May, 2006, found that Dulcinea had some difficulty on figure/ground testing resulting in missing or mishearing phonemes when presented with competing noise. She made several recommendations for instructional modifications for Dulcinea, including: preferential seating, reductions in classroom ambient noise, written homework assignments; and teacher attention to Dulcinea’s learning style, attention and potential fatigue. (P-57; Shubow) Ms. Shubow had not visited Dulcinea’s classroom and did not know which, if any, recommended modifications were already in place for Dulcinea. (Shubow) The Team has not met to consider Ms. Shubow’s report. (But see: S-23)
16. The Carroll School is a private, Ch. 766, approved school that provides specialized language and literacy instruction based on the Orton-Gillingham method in self-contained classrooms to small groups of students of similar age and with similar cognitive and academic skill levels and styles. Dulcinea was accepted by Carroll as she has the appropriate learning profile and would be placed in the top or 2 nd to top group of 6 small groups scheduled to follow the 4 th grade Carroll curriculum in 2006-2007. (Lowell; P-61)
Findings and Conclusions
There is no dispute that Dulcinea is a student entitled to receive a free, appropriate public education pursuant to 20 USC § 1401 et seq . and M. G. L. 71B. Furthermore the parties are in substantial agreement about the nature and extent of Dulcinea’s disability.4 The issue presented here is whether the 2005-2006 IEP developed by GDRSD ensures the uniquely tailored educational services and setting that will provide a free appropriate public education to Dulcinea. After careful consideration of all the evidence presented in this matter, and the arguments of counsel for both parties, it is my determination that it does. My reasoning follows:
To provide a free, appropriate public education an IEP must be tailored to address a student’s unique learning needs in a way reasonably calculated to enable the student to make meaningful educational progress in the least restrictive setting. In Re: Arlington Public Schools , 8 MSER 195 (2002) Here the 2005-2006 IEP developed by GDRSD has done that. Dulcinea’s special education needs arise out of her documented reading disability. (Hamel, Shaw; P-34, P-56) To address the reading disability directly, the school provided individualized, direct reading instruction using a structured, sequential, phonetically based reading program: Wilson, as recommended by all evaluators and service providers. (P-34; P-56; Hamel, Shaw) To ensure that Dulcinea has access to the general curriculum the School provided reading/language support in the regular classroom and presentation and production accommodations for the regular education demands. (S-4; Bertrand; Girouard) The preponderance of the evidence shows that with these services in place Dulcinea made meaningful educational progress both in mastering the IEP goals set out for her in the 2004-2005 IEP (Hamel), and in acquiring the skills necessary to participate effectively in the regular education setting. (Bertrand, Girouard, Shaw, Grant) It is highly significant that Dulcinea continued to make steady improvement in academic skills during the 2005-2006 school year following an IEP that had expired and that offered fewer, less intensive services than had been recommended by her special education team. Dulcinea’s progress in the specific areas of reading skills that are compromised by her disability are documented by her special education teacher. (See ¶ 5, 11) Dulcinea’s progress in written language is evident from her ability to produce grade level written work without accommodations or assistance. (Girouard) The testing and observations of outside evaluators selected by the Parents confirm the steady improvement in Dulcinea’s reading skills. (Grant; P-46; Shaw; P-34; P-56) The progress reports, report cards, work samples, informal assessments and observations of GDRSD staff are “demonstrable” evidence of improvement in Dulcinea’s overall academic skills during the 2004-2005 and the 2005-2006 school years. The Parent acknowledged that Dulcinea had made “some” progress between the 2 nd and 3 rd grades, but insisted it was insufficient to allow Dulcinea to participate meaningfully in the mainstream. (Parent) The Parent’s view is not corroborated by any evidence in this record. I find, therefore, that the special education delivered to Dulcinea pursuant to the 2004-2005 accepted IEP was appropriately tailored to meet Dulcinea’s identified special education needs, and to permit her to make meaningful educational progress in the least restrictive setting.
Further I find that the preponderance of the credible evidence in the record supports the conclusion that the 2005-2006 IEP proposed by GDRSD contains the type and level of special education services and support recommended for Dulcinea by both school based teachers and assessors and parent selected evaluators. (Bertrand, Hamel, Shaw; P-34; P-35) All recommended services were incorporated into the IEP. The Parents did not request anything more or different. I do not credit Ms. Grant’s recommendations as they are not supported by her own testing observations and objective measurements, and are inconsistent both with the recommendations set out in her written report, and with the bulk of her testimony at the hearing.
I note that Dulcinea made grade-to-grade progress in 2005-2006 despite receiving a lower level of specific special education service than was proposed by GDRSD. It is not clear why the Parents refused the additional direct reading instruction recommended by the GDRSD Team and requested by the Student. It is also unclear why the Parents refused to permit testing accommodations for Dulcinea. Whatever the reason, the fact that Dulcinea made steady academic and reading progress while receiving fewer hours of special education and fewer accommodations in the regular curriculum than GDRSD had originally proposed points to her resilience and her ability to benefit from continued integration in the mainstream. It certainly does not support removal from the mainstream to a segregated special education placement.
Massachusetts special education regulations provide:
The school district shall ensure that, to the maximum extent appropriate, students with disabilities are educated with students who do not have disabilities, and that special classes, separate schooling, or other removal of students with special needs from the general education program occurs only if the nature or severity of the disability is such that education in general education classes with the use of supplementary aids and services cannot be achieved satisfactorily.
603 CMR 28.06 (2)(c).
All the credible evidence in this record demonstrates that Dulcinea is making “satisfactory” educational progress in the general education program with the direct reading instruction and the in-class language support that she receives under the 2004-2005 IEP. She has mastered her specialized reading goals and objectives and continues to acquire grade level reading skills. She participates in the regular curriculum and receives unmodified grades and assessments indicating mastery of grade level content. There is no credible evidence in this record that Dulcinea’s reading disability is so unusual, pervasive, or severe, that she cannot continue to make meaningful educational progress with similar services. The proposed 2005-2006 IEP offers Dulcinea continued special education interventions of a type and frequency similar to those with which she had demonstrated success throughout the 2004-2005 and 2005-2006 school years, but adjusted for her age appropriate development of attentional skills and the increased demands of the higher grade regular classroom.
In reaching these conclusions I rely particularly on the testimony of Phyllis Hamel who has had the most consistent, long term contact with Dulcinea in an educational context and whom I found to be candid, sympathetic and professional. I also rely heavily on the testimony of Ms. Girouard who has the most recent experience of Dulcinea in the mainstream setting and who explained her view of Dulcinea’s academic competence with precision and enthusiasm, and with support from the running portfolio of Dulcinea’s accomplishments in the classroom. On the other hand I give the educational placement and service recommendation of Dr. Shaw little weight due to her lack of current knowledge of Dulcinea’s school functioning and special education plan.
Therefore I find that the 2005-2006 IEP developed by GDRSD was based on all the information the Team had at that time concerning Dulcinea’s educational functioning and progress, provides for appropriate specialized instruction to remediate Dulcinea’s documented reading disability and offers mainstream supports and accommodations to ensure that she is able to participate in and benefit from the general education curriculum. As the Parents have not carried their burden of persuading me that the 2005-2006 IEP proposed by GDRSD does not ensure Dulcinea a free, appropriate public education, I do not consider the appropriateness of the Parents’ proposed placement at the Carroll School. There is no credible evidence in this record of any procedural improprieties attributable to GDRSD which might warrant an alternate or supplemental analysis.
The 2005-2006 Individualized Education Plan proposed by Groton-Dunstable Regional School District is reasonably calculated to provide Dulcinea with a free, appropriate public education in the least restrictive setting.
Lindsay Byrne, Hearing Officer Date:
Dulcinea is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in publicly available documents.
Other issues raised in the Parent hearing request are either barred by the applicable statute of limitations, withdrawn, or unsupported by any credible evidence at the hearing.
The “modified” Wilson program in use pursuant to the 2004-2005 IEP was modified in time only. Wilson instruction ideally takes place for 1 hour daily. (Hamel)
Although the Parents argued at the hearing that Dulcinea had an auditory processing disability which compounded her reading disability I am not persuaded that this disability, if it exists, has any significance to the outcome of this matter. There is no credible formal diagnosis of any such disability in this record. (P-57; P-40, S-19; P-35, S-20) There are no functional observations by service providers working with Dulcinea that would support such a finding. (Hamel, Girouard, Bertrand) There are no service or accommodation recommendations relevant to such a diagnosis that are not already being implemented in Dulcinea’s existing classroom, previously proposed in the 2005-2006 IEP rejected by the Parents, or peculiar in any way to the educational program available at the Carroll School. (Lowell; Girouard; Shubow; P-41, S-2; S-4) Finally the evaluation by Ms. Shubow that the Parents rely upon to demonstrate the existence of an auditory processing disorder was conducted in May 2006, six months after the Team meeting held to develop the rejected 2005-2006 IEP and in preparation for this June 2006 hearing. The GDRSD Team did not reconvene to consider the results of that evaluation.