In re: E. Bridgewater Public Schools BSEA #03-4323
DECISION
This decision is rendered 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 hearing on this matter was held on June 17 and July 1, 2003, at the Bureau of Special Education Appeals in Malden, Massachusetts. At the request of the parties, the record remained open until July 2, 2003, for receipt of closing arguments.
Persons present for all or part of the proceedings were:
Mother
Stepfather
Susan Love Attorney for Student
Janet Pike-Botelho Speech-Language Pathologist
Tricia Eddy Third grade teacher, East Bridgewater Public Schools
Tim Doherty Guidance Counselor, East Bridgewater Public Schools
Kathryn Levine Pupil Personnel Services Director, East Bridgewater Public Schools
Deborah Anderson Attorney for the East Bridgewater School Committee
Maryellen Pambookian Director, South Shore Collaborative
Renee Hartford Speech/Language Pathologist, Teacher Central School, East Bridgewater Public Schools
Denise Sheppard School Psychologist, East Bridgewater Public Schools
ISSUES
1. Whether the East Bridgewater Public Schools’ (East Bridgewater) 2003 – 2004 IEP calling for the South Shore Collaborative’s Language Enhancement Program (SSCP) located at the Kennedy Elementary School in Randolph, is reasonably calculated to provide Student with an appropriate education in the least restrictive setting; and if not,
2. Whether the Carroll School, a private 766-approved day school in Lincoln, Massachusetts, is reasonably calculated to provide Student with an appropriate education in the least restrictive setting.
PARENTS’ POSITION
Student’s at least average oral expressive and receptive language skills, combined with his severe dyslexia, require that he be placed in an educational program with similar students and small classes, in order that he receive the intensive reading/writing instruction designed for students with dyslexia, while also receiving the full fourth grade curriculum set out in the Massachusetts’ Curriculum Frameworks. Such is needed, in part, because he is fully able to benefit from such curriculum, and secondly, is needed in order that he pass the MCAS exams. The SSCP cannot provide such. The students are not similar in their skill levels and educational needs, and the social studies and science curricula only touch on the Curriculum Frameworks material. In contrast, the Carroll School is designed specifically for children like Student, offers an intensive reading/writing curriculum as well as the curriculum frameworks for social studies and science, and therefore, offers an appropriate educational program in the least restrictive setting.
SCHOOL’S POSITION
The SSCP offers Student an intensive language-based program provided in small group settings, but also offers the potential for mainstreaming in subjects such as social studies and science, as deemed appropriate for Student. The teachers are not only special education certified, but they, as well as the therapists, are Orton-Gillingham certified. Thus, the Orton-Gillingham teaching in reading and writing occurs throughout the day. Student would be grouped with students requiring similar teaching techniques. Accordingly, the SSCP is reasonably calculated to address Student’s dyslexia in the least restrictive setting. In contrast, the Carroll School’s staff members are not all certified, and do not include occupational therapists or speech/language therapists. Further, the Carroll School cannot provide the mainstreamed opportunities. Given Student’s ability for socializing in the mainstreamed setting, and potential ability for some academics in the mainstreamed setting, the Carroll School is too restrictive for Student.
STATEMENT OF THE FACTS
1. Student is a ten-year old boy entering his fourth grade, who, but for his reading, writing, and attentional difficulties, is “like any other boy”. His cognitive skills are within the average range (FSIQ = 98; VIQ=99; PIQ=98), his oral expressive and receptive language skills are average, and he is described as a social, friendly, kind, young boy, loving to engage in conversations, play with friends, etc. (Hartford, Mother, Eddy, Pike-Botelho, Doherty) He has a long standing diagnosis of dyslexia, rendering his reading skills as the beginning second grade level with help, his writing skills equally compromised, although the content is grade level. His math reasoning as well as abstract thinking skills are at grade level, but he needs help with word problems. He has weaknesses in his numerical operations, visual perception, sound-symbol, processing speed, immediate recall, focusing, and short-term memory. On the other hand, he has a good fund of general knowledge, such that he has been an active participant in the mainstreamed social studies and science classes. (S-1, S-8, P-20, Eddy, Hartford) Student is also diagnosed with an attentional deficit with hyperactivity disorder (ADHD), however, his recently begun use of medication (Adderall) has helped this disability. (Mother, Doherty) He can become extremely anxious and frustrated when involved in his academic work, due to his reading and writing deficits, and such has led to his crying at school and at home on a weekly basis, at least. (Mother, Eddy, Doherty)
Whether Student can be successfully mainstreamed for academics is in question. Ms. Hartford, Student’s speech/language therapist, opines that he should start at the collaborative without mainstreamed academics. She opined that, although he was able to handle the mainstreamed classes for his third grade, the fourth grade curriculum is more difficult. Thus, she recommends caution in attempting to integrate Student for mainstreamed social studies or science. (Hartford) Student’s third grade teacher opined that he should learn to read before mainstreaming him because of self-esteem issues. To do otherwise would frustrate him, for he would be treated differently, would have to do more work in a different setting, etc.. (Eddy) However, both parties acknowledge that Student is fully capable of mainstreaming for social reasons – as long as it does not include struggles with academics. If he can handle the academics in such a setting, he would learn how regular education students learn. (Hartford, Eddy)
2. Student has attended East Bridgewater’s Central Elementary School since kindergarten through this current school year’s third grade. In this third grade setting, his IEP called for inclusion special education services in written language 2 x 30 min/week; academic support 5 x 30 min/week; and math 5 x 30 min/week. It called for daily pull-out services in reading 30 min, and weekly occupational therapy and counseling, each for 30 minutes. Finally, it called for consultation from the special education teacher, the speech/language teacher, the occupational therapist, and the guidance counselor, 15 minutes/week each. (S-7)
Student’s March of 2003 progress reports reflect strong listening skills and expressive skills in classroom discussions. Further, they reflect his ability to seek assistance when frustrated, and to discuss such issues during his individual counseling and “club” time. (S-5, P-10) According to all, Student’s progress in reading and writing has been extremely limited. (Hartford, Eddy, Mother) Despite this, Student has worked hard, but has become more and more frustrated with his difficulties. Parents are concerned that if he does not quickly increase these skills, his current level of motivation will dwindle, and he will be turned off to learning. (Mother)
In the spring of Student’s third grade, Student took the MCAS test in reading, achieving a score in the warning level. (P- Exhibit 32)
3. East Bridgewater conducted several evaluations as part of Student’s three-year re-evaluation. In June of 2002, the occupational therapist’s evaluation resulted in recommendations for 1:1 occupational therapy to address his fine motor weaknesses in handwriting. She noted a weakness in his fine motor dexterity skills. Further, she noted a mild weakness in his left eye, which impacts his ability to “track an object into his left visual field.” (S-13) In October of 2002, East Bridgewater’s educational evaluation results indicated that Student was performing in the below average range in basic reading, reading comprehension, spelling, and numerical operations, and in the average range in oral expression, listening comprehension, and math reasoning. (S-10) East Bridgewater’s speech/language evaluation results indicated average oral language functioning, with the exception of below average syntax construction and age appropriate vocabulary. The report included recommendations for preferential seating for optimal attention and maximizing his language strengths, the use of a scribe and a computer for written language production, and the use of graphic organizers. (P-15) In March of 2003, this evaluation report was supplemented with the CELF-3 test. Student was reported to have low average receptive skills, more delayed expressive skills, and low average total language skills. (S-4)
4. In March of 2003, Parent obtained an evaluation from the Children’s Hospital Developmental Medicine Center, in order to address medical intervention for his attentional issues. The interview with Mother reflected Student’s difficulty grasping the phonics-based reading skills through the Wilson program, stating that his teacher said he is “severely dyslexic” and would require special placement. Further, she noted his attentional difficulties, his distraction by his surroundings as well as his fidgetiness. The doctor recommended that Student begin Adderall. (P-14).
Parent also obtained an independent speech/language evaluation in anticipation of the BSEA hearing. The resulting report found Student to have average receptive, expressive, and pragmatic language skills, but noted word retrieval difficulties. She noted that his written language skills are significantly reduced – he tested at the 4 th percentile. She recommended a program that would address reading, written language and word retrieval strategies. (Pike-Botelho, P-31) She recommends a program focusing on decoding, written expression in terms of spelling, organizing his written thoughts, written language, and word retrieval. She does not find a need for work on his oral expression. (Pike-Botelho)
5. The East Bridgewater TEAM developed a July of 2003 – July of 2004 IEP calling for Student’s educational placement at the SSCP, located in the Kennedy Elementary School in Randolph. As agreed to by both parties, Student’s fourth grade placement must provide more intensive special education services than provided in his third grade placement. This IEP called for all academics in the special education setting; speech/language therapy 3 x 30 min/week; occupational therapy 1 x 30 min/week; 1:1 reading instruction 5 x 30 min/week; and counseling 2 x 30 min/week. The IEP also called for occupational therapy consultation 1 x 30 min/month, and daily mainstreaming in one of the specials. It called for occupational therapy to address his fine motor difficulties with writing, as well as his sensory integration difficulties tied in with his ADHD. Finally, the IEP called for summer services to address his reading disability and to compensate for tutoring not provided during the 2002 – 2003 school year. (S-1, S-2) On April 10, 2003, Parents rejected such IEP and appealed it to the BSEA. They expressed concerns regarding the isolation of the collaborative program, the children’s lack of readiness for mainstreaming, and the fact that some students are non-verbal and have below average cognitive abilities. (S-3)
6. The SSCP staff includes two special education certified teachers, a speech/language therapist, and an occupational therapist. All are Orton-Gillingham trained. The staff provides a language rich program, wherein Orton-Gillingham is provided in a 1:1 and small group basis for reading and writing, and is then carried out throughout the day. Assistive technology is also an important part of the program i.e., the Kurzweil Reader facilitates reading fluency and comprehension, and the Co-Writer facilitates writing. (Pambookian)
The program includes no more than eleven second through sixth grade students, although only five are currently enrolled. Of these, three are sixth graders, one is a second grader, and one is a third grader. All have average cognitive skills, although their verbal and performance scores may have a wide split – some with high verbal scores, and some with higher performance scores. All have learning disabilities, and none have emotional problems as their primary diagnosis. All require extra work on reading/writing, (four of the five will receive the Orton-Gillingham program), benefit from assistive technologies, and have needs for speech/language, occupational, and/or physical therapies. One second-grader has a non-verbal disability, and four children have learning disabilities, with two diagnosed with dyslexia. Three of the children have decoding skills at the same level as their comprehension skills; two children have decoding skills higher than their comprehension skills. As a group, their decoding skills are in the first to fifth grade level; the comprehension skills are in the first to fourth grade level. As a group, all need work on organizational skills, need multisensory teaching techniques, need a language rich program, and all require small group learning. Of the five additional children under consideration for this program, at least two have non-verbal disabilities, and one does not.
Although none of the current students is ready for mainstreamed academics, and only two are mainstreamed for gym and health, if and when Student is ready for such, it can be provided, for the SSCP is housed in the Randolph Public School’s Kennedy School. Further, the Kurtzweil technology would help Student to keep up with the reading in a mainstreamed class. No evidence was provided regarding the nature of such classes or the coordination between the programs. However, an aide may accompany the student if appropriate. (Pambookian)
The SSCP’s two teachers and therapists are all Orton-Gillingham certified, making it easy to carry over the reading instruction throughout the curriculum. The senior teacher is certified in special education, and has taught more than seven years; the second teacher is also certified in special education and has worked two years. The speech/language therapist (working for 2 ½ days / week) has her CCC. Finally, the mental health counselor works 4 days / week; she currently runs an integrated lunch group. (Pambookian)
The program tries to follow the Curriculum Frameworks, however, the emphasis is more on the reading and writing, for without this, they cannot pass the MCAS. In fact, last year, six of the seven children in the middle school passed the language arts part of the MCAS tests. (Pambookian)
Dr. Pambookian opines that Student is appropriate for the program, for he needs a small, language rich program, and he has the potential of benefiting from mainstreaming. (Pambookian)
7. East Bridgewater’s speech/language therapist observed the program and concluded that it was indeed a language-rich program, with posters, etc. of language on the walls, its multi-sensory approach, its constant carry-over of Orton-Gillingham teachings into the content areas. She also concluded that Student would benefit from the occupational therapy, given his fine motor and sensory-integration deficits. Finally, she opined that the program could provide Student a sufficiently intensive reading program. That is, although the ½ hour / day was insufficient in the 3 rd grade inclusion program, such ½ hour / day is sufficient in the small group collaborative setting, for the reading instruction would be carried into the content area classes. In summary, Ms. Hartford testified that the collaborative program is appropriate because of its mainstreaming opportunities – even if just for non-academic settings – , the counseling group includes regular education students; the students, although diverse, are similar to Student in many of their learning needs; and OT is provided. (Hartford) On the other hand, Student’s third grade teacher also observed the program and concluded that it was not appropriate for Student. She expressed concerns regarding Student’s need for a full social studies and science curriculum in line with the Curriculum Frameworks, for the SSCP places second – sixth graders in one class, and she questioned how one could teach the curriculum to such a diverse group. Further, she questioned the appropriateness of placing Student with second graders, for this would affect his self-esteem. She also questioned placing Student with children having social deficits. She did acknowledge the appropriateness of the small group learning, offering significant teacher/aide support, and the appropriateness of the teachers’ certifications. Further, she acknowledged that the program’s being in a regular education setting, made it like a “regular school”. She acknowledged that with an aide, with assistive technology, and with coordination with the special education staff, the mainstreamed social studies and science could potentially be appropriate for Student. However, she cautioned that it should be provided in a way that Student misses none of his class work, that Student not be resistant to an aide, and that the regular education teacher be capable of ensuring his success. Finally, she acknowledged the appropriateness of having a speech/language therapist and an occupational therapist on staff. (Eddy) Parent’s independently hired speech/language pathologist also questioned the appropriateness of SSCP. She questioned the appropriateness of grouping Students with second graders, for the level of conversation would be too low for Student. (Pike-Botelho)
The parties dispute whether the proposed peers provide an appropriate learning environment for Student. According to Ms. Hartford, a setting with diverse needs is fine; i.e., students having non-verbal learning disabilities, as well as students with verbal learning disabilities, will require work in reading phonics as well as comprehension – even if they differ as to their predominant weakness. Further, she opines that as long as the majority of students do not have non-verbal learning disabilities, the grouping is appropriate. That is, others may have difficulties with social interactions, may have inflexible styles, but they as well as Student have problems with automaticity in writing and recall. Further, she sees Student as willingly helping his peers who are struggling, and in fact feels good about himself when this happens. If the groupings are as small as 2-3 students (rather than the goal of 5-6 students), this would be appropriate for Student. (Hartford) Mr. Doherty, Student’s counselor, also noted that Student is good with students having emotional needs different from his, although it would not make sense placing him in such a grouping if it meant that Student would be missing out on educational opportunities more appropriate for Student. (Doherty) Ms. Eddy opines that the proposed peers are inappropriate because of the wide age span – placing Student with second graders would be harmful for Student’s self-esteem, and placing him with such dissimilar social skills would also not be good for him. (Eddy)
Parents do not dispute the quality of the SSCP – the teachers are certified, the small group lessons are multi-sensory with significant teacher/aide support. Further, the assistive technology can be useful. (Eddy)
8. Student has been accepted at the Carroll School, a private, Chapter 766 approved day school in Lincoln, Massachusetts. (P-28) Such school is designed for students of average to superior intelligence, who also have language-based learning disabilities, and who do not have primary emotional problems. The Carroll School’s Lower School services children ages 7 – 10, its Middle School serves children ages 10 – 13, and its Upper School services children ages 13 – 15. The teachers are all certified or in the process of becoming certified by the State of Massachusetts to teacher children with learning disabilities. The teachers are also trained in the Orton-Gillingham methods of instruction. More than 75% of the teachers hold master degrees. The school emphasizes instruction in reading and writing, carrying over such learning into the content areas. Thus, it emphasizes the need for the teachers to provide consistency in their teaching techniques as well as constant communication between the staff regarding a student’s progress, concerns, etc. The school also provides its instruction, using multisensory approaches. The students are provided direct instruction in classes of approximately six to eight students, who have been grouped according to their learning styles and abilities. Student would receive daily tutorial as well as classes in math, science, history, language arts, and literature. The Carroll School also provides an arts program including dance, drama, and music, studio arts and crafts, and woodworking. Finally, it offers counseling in 1:1 as well as small groups. (Parent’s Exhibit #29, Pike-Botelho) The children are selected with dyslexia as the diagnosis, as opposed to a non-verbal learning disability. The social studies class provides reading material at the child’s reading level, but the full text is then read to the children. Further, the subject of the text is addressed across the curriculum. For instance, Treasure Island was read, and would then be addressed in the geography class, the math class, reading, and language arts. Speech/language is available if needed. (Pike-Botelho) The curriculum is tied to the Massachusetts Department of Education’s Curriculum Frameworks. (Mother)
FINDINGS AND CONCLUSIONS
I find that the Carroll School, not the SSCP, offers an educational program appropriate for Student’s needs, in the least restrictive setting. My reasoning follows.
I. Student clearly requires an intensive reading/writing program that offers the Orton-Gillingham training not only in the 1:1 setting, but carried out throughout the day in language arts, social studies, science, math, etc. The TEAM appropriately decided this was needed, given his slow progress in his third grade, and therefore recommended against mainstreamed academic experiences. (S-1) This decision is fully supported by the evidence. First, a mainstreamed setting cannot provide such intensity in developing reading skills, for the teachers are not trained in Orton-Gillingham, and the curriculum is not designed to incorporate reading texts at Student’s reading level. Yet, only with such carryover throughout the day, will Student receive the intensity called for by the TEAM. Accordingly, the use of assistive technology such as the Kurzweil Reader may be attractive, but if used too frequently, it would undermine Student’s need for intensive experiences reading at his reading level. (Pike-Botelho) Mainstreaming is also inappropriate at this time, for without the reading skills, Student is experiencing too much frustration. Although a few witnesses entertained the possibility of inclusion, the opinions were too tenuous to support a conclusion that academic mainstreaming would be appropriate, at least for this upcoming fourth grade year. Witnesses were concerned, not only that his reading/writing program would lack the carry-over into the mainstreamed setting, but also that Student would experience too much frustration in the mainstreamed. (Hartford, Eddy, Pike-Botelho) It may be that use of assistive technology may relieve some of this anxiety, however, it would also diminish the intensity of experiences reading at his level. Given the lack of reading success in his third grade inclusion program, – despite the pull-out reading services – East Bridgewater was not persuasive that a repetition of any mainstreamed setting is appropriate.
Equally clear, is that, but for the reading/writing, Student is capable of handling the fourth grade curriculum in the content areas. His oral expressive and receptive language skills fall in the average range. (Hartford, Pike-Botelho) He is interested in the content areas, he fully participates in classroom discussions, and is successful in such subjects. (Eddy) Absent a reason to limit his curriculum, the standard fourth grade curriculum is appropriate for Student. Such becomes even more true given the Massachusetts Curriculum Frameworks, and the corresponding MCAS testing. (Eddy, Pike-Botelho)
The SSCP, albeit a well-run, language-enhanced program, cannot provide Student with a program that, on the one hand, offers this intensive reading curriculum, and on the other hand, offers him the full content-based curriculum set out in the Curriculum Frameworks. If mainstreaming were appropriate, one might argue that SSCP could provide the full content-based curriculum. However, mainstreaming is not appropriate. Yet, the small group special education setting fails to provide the level and depth of content-based learning appropriate for Student. First, the students in the program are not capable of such, for their language processing skills do not allow for that. (Pambookian) This difference in language processing skills was observed by Ms. Pike-Botelho and by Mother (Pike-Botelho, Mother) Second, given the wide age span of the children – 2 nd to 6 th graders – the record supports a finding that the full curriculum (for each grade) can not be provided, unless Student were taught in isolation. Dr. Pambookian confirmed this in telling Mother that the MCAS strands are “touched on”, and telling Ms. Pike-Botelho that the students are “exposed” to the curriculum. (Mother, Pike-Botelho) Mother’s concern about the depth of the curriculum is legitimate in that Dr. Pambookian informed her that the students could not “process all the information” provided in the regular education setting. The fact is, but for the reading, Student can. (Eddy)
Although SSCP is not appropriate for Student, such finding is not based on Parents’ assertions regarding its ability to address Student’s reading/writing needs and Student’s socialization needs. That is, Parents were unpersuasive in asserting that SSCP’s reading/writing program lacked sufficient intensity. The staff is Orton-Gillingham trained, and at least several of the students are diagnosed with dyslexia. Further, Dr. Pambookian was persuasive that the teacher/student ratio is sufficiently small that the Orton-Gillingham training would be carried over throughout the curriculum. It may be that the Carroll School offers more classes / day in reading and language arts, but it would seem that SSCP could offer this intensity of programming, if so ordered. Parents were equally unpersuasive in asserting that SSCP offered an inappropriate social setting. That is, the record supports the view that Student can handle a diverse student body, and in fact, benefits from helping others. (Doherty) Certainly, it would need to be designed in a way that Student had access to the mainstream for all non-academics, and was ensured a way of feeling part of such mainstreamed groups. But assuming this could be done, then Student’s social needs could be addressed at the SSCP.
II. Contrary to SSCP’s inability to address Student’s dual needs in reading/writing as well as the content areas, the Carroll School’s curriculum provides for such, and is therefore appropriate for Student. Given the large student body, the Carroll School is able to group students according to their abilities, thus teaching language arts as well as content area subjects at each student’s reading/writing/content area level. (Pike-Botelho) East Bridgewater raises several concerns, but none support a conclusion that Carroll School’s program is inappropriate for Student. As to the concern that the staff are not certified: the evidence is inconclusive, however, 75% of the staff have master level degrees, all are Orton-Gillingham trained, and all have certification, or are in the process of becoming Massachusetts State certified. (P-29) Given this, East Bridgewater is unpersuasive that any lack of certification renders the program inappropriate for Student. East Bridgewater is unpersuasive in its concern regarding the lack of speech/language and occupational therapists. First, a speech/language therapist is available if needed. (Pike-Botelho) Second, there is no reason why the occupational therapy cannot be provided by East Bridgewater, either at the Carroll School, or at East Bridgewater. Finally, East Bridgewater is unpersuasive in its concern regarding the lack of mainstreaming opportunities. It would be preferable that Student be mainstreamed with the regular education population, if he could, at the same time, receive the academic program appropriate for him. Given the fact that SSCP cannot provide this, Parent is persuasive that the Carroll School provides the least restrictive appropriate setting for Student.
ORDER
East Bridgewater shall immediately develop a 2003 – 2004 IEP calling for Student’s placement at the Carroll School.
By the Hearing Officer,
______________________________
Sandra W. Sherwood
Date: July 14, 2003