Grafton Public Schools – BSEA # 11-7489



<br /> Grafton Public Schools – BSEA # 11-7489<br />

COMMONWEALTH OF MASSACHUSETTS

Division of Administrative Law Appeals

Bureau of Special Education Appeals

In Re: Grafton Public Schools

BSEA#: 11-7489

DECISION

This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL c. 71B), the state Administrative Procedure Act (MGL c. 30A) and the regulations promulgated under these statutes.

A Hearing was held on June 22, 2011, June 23, 2011 and June 27, 2011 in Worcester, MA before Ann F. Scannell, Hearing Officer. Those present for all or part of the Hearing were:

Harry’s1 Parents

Kathleen Baris Special Education Administrator, Grafton Public Schools

Kimberely Sabourn Placement Specialist, Grafton Public Schools

Emily Duhamel English Teacher, Grafton Public Schools

Lauren Mulhern Special Education Teacher, Grafton Public Schools

Gina Warner Special Education Teacher, Grafton Public Schools

Patty Pijaca Special Education TEAM Chair, Grafton Public Schools

Mary Maher Special Education Teacher, Grafton Public Schools

Shawn Lijoi Special Education Teacher, Grafton Public Schools

Patti Ciampi Adjustment Counselor, Grafton Public Schools

Sandra Savage Special Education Teacher, Grafton Public Schools

Larry Brown Head of Middle School, Carroll School

Theresa Gregory Director of Education, Carroll School

Melody O’Neil Assistant Director of Admissions, Landmark School

Jason McCormick Psychologist

Regina Williams Tate Attorney, Grafton Public Schools

James Manzi Attorney, Parents

Julia Glazer Attorney, Parents

John Gutkowski Attorney, Parents

Lisa Regensburger Court Reporter

Darlene Coppola Court Reporter

The official record of the Hearing consists of documents submitted by the parents and marked as Exhibits P-1 through P-40, P-43 through P-45, P-47 through P-51 and P-54 through P-115; documents submitted by Grafton Public Schools and marked as Exhibits S-1 through S-56; and approximately three days of oral testimony. Written closing arguments were received on July 27, 2011 and the record closed on that date.

INTRODUCTION

Harry is a 14 year old boy who just completed the 8 th grade at the Carroll School. He attended the Carroll School for 6 th , 7 th and 8 th grade. Prior to attending the Carroll School Harry was a student in the Grafton Public Schools. Harry has been diagnosed with dyslexia.

On April 27, 2011 Harry’s parents filed a request for Hearing with the Bureau of Special Education Appeals (“BSEA”). It is the parents’ position that the March 2011 to March 2012 IEP proposed by the Grafton Public Schools (“Grafton”) does not provide Harry with a free, appropriate public education in the least restrictive environment (“FAPE”). Further, the IEP cannot be modified to provide Harry with a FAPE and the Landmark School (“Landmark”) is an appropriate program.

Grafton filed a response to the parents’ Hearing request on May 18, 2011. It is Grafton’s position that the proposed IEP does provide Harry with a FAPE in the least restrictive environment and Landmark is not an appropriate program for Harry.

This matter was scheduled for Hearing on June 1, 2011. Grafton’s request to postpone the Hearing was granted. It was rescheduled to June 22, 23 and 27, 2011. This matter was subsequently reassigned to Hearing Officer Ann Scannell on June 6, 2011. A conference call was held with the parties on June 15, 2011 and the matter moved forward to Hearing on June 22, 23 and 27, 2011.

ISSUES

The issues to be decided in this matter are:

1. Whether the March 15, 2011 to March 14, 2012 IEP was reasonably calculated to provide Harry with a free, appropriate public education in the least restrictive environment;

2. If not, can the IEP be modified to meet this standard;

3. If not, is the Landmark School an appropriate program.

FACTS

Harry is a 14 year old boy who lives with his parents and siblings in Grafton. His parents requested an initial evaluation for special education services during the fall of Harry’s 1st grade year due to concerns with reading and anxiety. Overall, Harry scored in the average range on cognitive testing but in the low average range in reading and writing. The TEAM recommended that Harry receive remedial reading services with the regular education teacher. At the end of 1 st grade, Grafton reevaluated Harry to determine whether the remedial reading services were appropriate. The evaluation revealed that Harry’s reading and writing skills had improved significantly. (Exhibit P-36 and testimony of Harry’s mother)

During 2 nd grade, Harry’s parents became more concerned about Harry’s limited progress and requested another evaluation from Grafton. The evaluation was conducted in April of 2005. The results revealed Harry’s weaknesses in reading and writing but Grafton concluded that he did not present with significant learning concerns. Nonetheless, Grafton did suggest that Harry be retained in 2 nd grade. Harry’s parents objected to retention and Harry moved into the 3 rd grade. (Exhibit P-36 and testimony of Harry’s mother)

In May of 2005, Marilyn Engelman, Ph.D. conducted an educational evaluation. The results revealed significant weaknesses in language based areas. Harry was determined to have a reading disorder and a written language disorder. Dr. Engelman made several recommendations including Wilson or Orton Gillingham reading instruction, the use of language based teaching strategies across all subject areas, MCAS accommodations and a writing program such as Framing Your Thoughts. (Exhibit P-10 and testimony of Harry’s mother)

In third grade Harry began receiving small group language arts instruction and Wilson reading instruction pursuant to an IEP. He also received Orton Gillingham reading instruction with a private tutor two days a week throughout 3 rd and 4 th grade. (Exhibit P-10 and testimony of Harry’s mother)

Harry’s three year reevaluation was scheduled to occur in the spring of 2008 but the TEAM agreed to conduct the reevaluation early in the spring of 2007. The academic assessment revealed that Harry’s academic skills and fluency with academic tasks fell in the low average range. His reading fluency was in the low average range and his math skills fell in the average range. The results of a speech and language assessment placed Harry’s receptive and expressive language skills in the average range. Harry scored much lower than expected in the reading and written language achievement tests but as expected on the math subtests. A comparison of Harry’s 2003, 2005 and 2007 scores revealed that Harry remained in the low average range in reading and his scores in written language dropped from the low average range to the borderline range. At this time, Harry was receiving Wilson reading instruction 5 times per week and pullout instruction in written language. (Exhibits S-3, 4, 5, 6 and 7)

In the summer of 2007, Harry’s parents completed an application to the Carroll School for admission to the 5 th grade. Harry was accepted, but was placed on their wait list, and Harry remained in the Grafton Public Schools for his 5 th grade year. Harry continued to receive Wilson reading instruction and pullout instruction for written language pursuant to an IEP. (Testimony of Harry’s mother)

During Harry’s 5 th grade year, his parents became increasingly concerned with Harry’s slow rate of progress and his increasing frustration and dislike of school. They sought out the assistance of Jason McCormick, Psy.D. In July of 2008, Dr. McCormick conducted a neuropsychological evaluation of Harry. (Exhibits P-3 and S-28 and testimony of Harry’s mother and McCormick)

Dr. McCormick’s results were consistent with prior testing. Harry presented with solid reasoning skills. He demonstrated more advanced visual than verbal cognitive abilities and low average scores in processing and working memory. Harry showed much greater proficiency in his math skills than his literacy skills. His reading, writing and spelling skills were significantly below age and grade expectations. Harry’s decoding skills fell in the 1 st to 2 nd grade range. Dr. McCormick reported that Harry had made no progress in his reading rate and accuracy and very minimal progress in his writing, spelling and reading skills. Dr. McCormick diagnosed Harry with specific learning disabilities in reading (dyslexia), writing and oral language. (Exhibits P-3 and S-28 and testimony of McCormick)

Dr. McCormick recommended that Harry be placed in a language based classroom for the entire school day, that utilized language based teaching techniques including slow presentation of information, preview and review of information, multimodal instruction with visual supports and graphic organizers. He recommended a small class limited to 8-10 students, with similar cognitive and academic profiles. He also recommended intensive (at least one hour per day) reading and spelling instruction such as Orton-Gillingham or Lindamood Bell for phonemic skills, Great Leaps or Read Naturally for reading fluency and Visualizing and Verbalizing for reading comprehension. Finally, Dr. McCormick recommended specialized writing instruction 3 times per week in a one to one or small group format and a language based approach to math. (Exhibits P-3 and S-28 and testimony of McCormick)

Harry was unilaterally placed by his parents at the Carroll School in September of 2008 for 6 th grade. Harry remained at the Carroll School for grades 7 and 8. (Exhibits P-3 and S-28 and testimony of McCormick)

Harry was reevaluated by Dr. McCormick in October of 2009 when Harry was a 7 th grade student at the Carroll School. Harry’s reading rate, accuracy, comprehension and fluency scores remained significantly below average. The results, however, showed that Harry had made approximately two year’s growth in these areas in less than 1 ½ years. On tests of academic fluency, Harry’s scores were similar to the 2008 testing conducted by Dr. McCormick. Harry’s writing sample demonstrated more elaboration, more sophisticated word choice, and longer and more complex sentences. Dr. McCormick reported that despite these improved scores, Harry continued to present with reading skills in the 2 nd to 4 th grade range and spelling scores in the borderline range. Dr. McCormick recommended that Harry remain in a language based program as outlined in his 2008 report. (Exhibits P-4 and S-30 and testimony of McCormick)

Harry’s parents rejected the IEP proposed by Grafton for 8 th grade and Harry remained at the Carroll School. A reading assessment conducted by Carroll staff in January of 2011 (middle of 8 th grade), revealed that Harry‘s overall reading performance fell at a 5 th grade level or in the low average range. The evaluator reported that Harry’s reading weaknesses continued to be in the areas of letter identification, decoding, vocabulary deficiencies and comprehension. (Exhibit S-16)

Dr. McCormick reevaluated Harry in December 2010/January of 2011 when Harry was in the 8 th grade at the Carroll School. Dr. McCormick administered many of the same tests that he had administered during the prior two evaluations. Harry continued to display weaknesses in processing speed, working memory skills and reading and writing. He also exhibited some difficulties with oral language including reduced rapid naming, word retrievel and rote verbal learning skills. (Exhibit P-5 and testimony of McCormick)

As part of Dr. McCormick’s reevaluation, Harry’s language arts teacher at the Carroll School completed a teacher’s report. She noted that Harry was performing at grade level in math and history but below grade level in English and science. (Exhibit P-5)

Harry’s test scores also revealed that Harry’s reading rate remained consistent with prior testing but he was significantly more accurate, more fluent and his comprehension was significantly stronger with oral reading passages. On the Gray Silent Reading Test, however, his performance was lower than previous testing. Dr. McCormick questioned whether Harry was fatigued because this test was administered at the end of the testing session. The scores also revealed that Harry’s scores on the math subtests of the Weschler Individual Achievement Test had fallen into the low average range. Harry scored in the below average range on the sentence composition subtest. His essay was notable for poor spelling, inconsistent capitalization and poor sentence structure making it difficult to understand what Harry was trying to say. Overall, most of Harry’s basic academic skills fell in the low average to borderline ranges, placing him in the 4 th and 5 th grade range for most skills. (Exhibit P-5 and testimony of McCormick)

Dr. McCormick recommended continued placement in a language based program across all core academic subjects. The language based program should employ language based teaching techniques including slow presentation of information, preview and review of information, small class size (no more than 8-10 students) and multimodal instruction including the use of visual supports and graphic organizers. Harry should also receive remediation in word finding and rote verbal learning throughout his day, monitored by a speech/language therapist. He should be taught with an appropriate group of peers with similar cognitive and academic profiles. (Exhibit P-5 and testimony of McCormick)

Further, Dr. McCormick recommended specialized reading instruction in a small group setting or one on one for at least one hour a day, specialized writing instruction in a small group setting and a language based approach to math. Additional recommendations included additional time for tests, a foreign language waiver and assistance with note taking. (Exhibit P-5 and testimony of McCormick)

On February 10, 2011, Grafton conducted an educational achievement evaluation. The special educator administered the same subtests from the Weschler Individual Achievement Tests that she had administered to Harry approximately 9 months earlier. She reported that most of Harry’s scores remained about the same. His pseudo-word decoding score decreased slightly and his essay composition scored increased due to an increase in the number of words Harry wrote from the earlier test. (Exhibit S-17 and testimony of Warner)

On March 15, 2011, a TEAM meeting was held to develop an IEP for Harry.2 An IEP was proposed with effective dates of March 15, 2011 to March 14, 2012. This IEP proposed placement in Grafton High School’s co-taught program. All of Harry’s core subjects, including social studies, English language arts, science and math would be provided in the co-taught classroom with a regular education teacher and a special education teacher. Harry would also receive specialized reading instruction in a pull out small group, small group reading and writing instruction and additional instruction in an academic support class taught by a special educator. Accommodations included preferential seating, small group instruction, repetition, review and reteaching of material, hands on activities, use of graphic organizers, modification of work, extra time to complete assignments, use of word processing tools, organizational support and a foreign language waiver. The IEP further provided summer tutoring in English language arts and math, twice a week for 75 minutes. (Exhibits P-1 and S-20 and testimony of Baris and Pijaca)

On April 6, 2011, Dr. McCormick observed the proposed co-taught program at Grafton High School.3 Dr. McCormick reported that the co-taught classrooms are taught by a regular education teacher and a special education teacher who has specific expertise in the subject area being taught. The students have at least average cognitive skills and the class sizes range from 10 to 20 students. Approximately, 10-15% of the students are served by an IEP and have mild to moderate learning disabilities. The literacy skills of the students range from grade level to 2-3 years below grade level with a few students at the 5 th grade level. (Exhibit P-7 and testimony of McCormick and Pijaca)

Dr. McCormick cited several concerns about the proposed co-taught program for Harry:

1) Harry’s reading and writing skills fall below the other students; 2) the classroom observed did not incorporate or reinforce literacy skills instruction; 3) Grafton does not offer a specialized, multisensory approach to written expression and 4) the pace of the classroom would be difficult for Harry. Although Dr. McCormick was complimentary of the dedication and skill of the Grafton teachers, he opined that the proposed co-taught model was not sufficient to meet the totality of Harry’s needs. On April 24, 2011, Harry’s parents rejected the proposed IEP and placement. (Exhibit P-7 and testimony of McCormick)

Approximately one month later, Dr. McCormick observed the program at Landmark. The reading skills of the 9 th grade students at Landmark range from the 2 nd grade to 6 th grade level and their cognitive functioning is in the average to above average range. Specialized reading and writing techniques are taught daily with one to one tutorials, all classes are taught using language based teaching principles and the class sizes range from 5-7 students. After his observation, Dr. McCormick opined that Landmark would meet Harry’s learning needs because of the small class sizes, frequent repetition and review of materials, daily reading and writing instruction using systematic and multi-modal approaches, in the context of a peer group with a similar cognitive and academic profile to Harry. (Exhibit P-7 and testimony of McCormick)

At about the same time, May of 2011, Grafton staff also observed the program at Landmark. They reported factually about their observations of the students and teachers in each of the classes they observed. In comparing Landmark and the co-taught program at Grafton, Grafton concluded that the co-taught program could effectively serve Harry due to the numerous supports and accommodations available and an appropriate peer group. The students grouped with Harry would have learning styles and skills acquisition similar to his. (Exhibit S-36)

DISCUSSION

It is not disputed that Harry is an individual with a disability falling within the purview of the federal Individuals with Disabilities Act (“IDEA”), 20 USC 1400 et seq. and the Massachusetts special education statute, MGL c. 71B. The IDEA was enacted “to ensure that all children with disabilities have available to them a free appropriate public education [FAPE] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment and independent living.”4 FAPE must be provided in the least restrictive environment. Least restrictive environment means that, “to the maximum extent appropriate, children with disabilities are educated with children who are not disabled, and special classes, separate schooling or other removal of children with disabilities from the regular education environment occurs only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.”5

Harry’s right to a FAPE is assured through the development and implementation of an individualized education program (“IEP”).6 An IEP must be custom-tailored to address a student’s “unique” educational needs in a way reasonably calculated to enable him to receive educational benefits.7 A student is not entitled to the maximum educational benefit possible.8 Similarly, the educational services need not be, “the only appropriate choice, or the choice of certain selected experts, or the child’s parents’ first choice, or even the best choice.”9 The IDEA further requires that special education and related services be designed to result in progress that is “effective.”10 Further, a student’s level of progress must be judged with respect to the educational potential of the child.11

Massachusetts special education regulations provide that specially designed instruction and related services described within the IEP must be sufficient to “enable the student to progress effectively in the content areas of the general curriculum.”12 Massachusetts also requires that the special education services be designed to develop a student’s educational potential.13

There is no dispute as to Harry’s eligibility. The only dispute in this matter is whether the most recent IEP proposed by Grafton offers Harry a FAPE in the least restrictive environment. The parents, as the party seeking relief in the instant case, have the burden of persuasion.14 It is their burden to show that the IEP proposed by Grafton will not allow Harry to make effective progress; that is, that the IEP was not reasonably calculated to provide Harry with a FAPE in the least restrictive environment. Further, the parents must show that the proposed IEP cannot be modified to meet that standard. After a careful review of the testimony and the documentary evidence, I find that the parents have met their burden.

As with eligibility, there is also no dispute as to Harry’s needs. Both Grafton evaluators and the parents’ evaluators agree that Harry has significant needs in reading and written expression. His struggles with decoding and fluency impact his comprehension, vocabulary and writing. He also exhibits difficulties with rote memory and a slow processing speed, which impact his ability to make progress. More recently, Harry has demonstrated difficulties in math, particularly word problems. Harry has strong cognitive reasoning abilities, visual processing and visual memory skills and fairly strong executive function skills. While a student at Grafton Elementary School Harry received Wilson reading instruction and pullout writing instruction pursuant to an IEP. By the end of 5 th grade, however, Harry was reading at the 1 st grade level and exhibiting considerable frustration and anxiety at home.

From 6 th grade through 8 th grade, Harry attended the Carroll School, a private school for children with language based learning disabilities with at least average cognitive abilities. At Carroll, Harry received daily one on one instruction in the Orton Gillingham reading program to address his deficits in decoding and encoding. He also received daily explicit instruction in writing.15 All classes utilized the POWER program for writing-plan, organize, write, edit and rewrite as well as visual maps for brainstorming, followed by a graphic organizer or outline. Harry’s remaining classes were math, history, science and a special.

There was persusive testimony that Harry made progress while at Carroll. Theresa Gregory, the Head of Education for the Carroll School testified about Harry’s progress in reading and writing and the emotional gains he made in self confidence and independence. She further testified that Harry would continue to require consistent repetition, review and spiraling to make further gains. The individual reports from Harry’s teachers at the Carroll School also documented Harry’s academic and emotional progress.

Parents’ expert, Dr. McCormick, evaluated Harry before he became a student at Carroll and twice during the three years that Harry was enrolled at Carroll. Dr. McCormick testified that Harry had made progress while at the Carroll School. His gains in reading comprehension, fluency, accuracy, rate and word reading efficiency were statistically significant. When Harry was initially evaluated by Dr. McCormick at the end of 5 th grade while still a student at South Grafton Elementary School, Dr. McCormick testified that Harry’s reading and writing skills fell between the 1 st and 3 rd grade ranges. By the middle of 8 th grade, Dr. McCormick testified that Harry’s reading accuracy, fluency and comprehension when reading oral passages had greatly improved. His non-word reading and word reading speed had increased to the fourth grade level. Kimberely Sabourin, the placement specialist from Grafton observed Harry at the Carroll School and also testified that Harry was making progress.

I found Dr. McCormick to be a credible and persuasive witness. He evaluated Harry on three different occasions and also observed the programs at the Carroll School, Grafton Middle School and High School and the Landmark School. Dr. McCormick credibly testified that Harry has significant learning disabilities in reading and writing and to a lesser extent in math. He emphasized that Harry presents with “triple deficit” dyslexia, a particularly severe constellation of deficits characterized by tracking difficulties, dysfluent reading and phonemic analytic skills. Harry also has a slow processing speed and working memory weaknesses. Despite these significant challenges, Harry made progress in the intensive, well-integrated, language based program at the Carroll School and started to close the gap, most notably in reading. Dr. McCormick further testified that Harry’s working memory scores had improved, likely owing to a significant decrease in anxiety and school related stress due to placement at the Carroll School.16 Dr. McCormick opined that Harry would regress academically and emotionally if he did not remain in an intensive, language based program that reinforced reading, writing and language instruction in every class throughout the entire day. Dr. McCormick credibly testified that Harry would require a program similar to Carroll to maintain and augment gains.

Grafton is and has been aware of Harry’s severe deficits in reading and written language. There is broad agreement that Harry has significant weaknesses in reading and written expression when compared with his general cognitive abilities. Prior to leaving Grafton Public Schools, Harry was in an inclusion classroom with pullout services. When this model was used, the evidence showed that Harry fell further behind his peers and was reading approximately 5 years below his grade level. Grafton is now proposing a similar model, a co-taught classroom with pullout services in reading, writing and academic support.

There was little substantive testimony from the Grafton staff as to how the co-taught program would adequately address Harry’s current needs. There was general testimony from Patty Pijaca, the High School Department Head and TEAM Chair, that the co-taught classroom would contain a regular education teacher and a special education teacher who had expertise in the particular content area, and that the general education teacher would do the majority of the teaching while the special educator would assist those students who were having difficulty. The size of the co-taught classroom would range from 10-20 students but there was no testimony as to how the class size would be determined. Although it was clear from the record that Harry needs consistent previewing and reviewing of materials, Ms. Pijaca testified that sometimes material is previewed and reviewed and sometimes it is not. Ms. Pijaca also testified that sometimes the content is modified and sometimes it is not. She believed that Harry would receive direct reading instruction from a Wilson reading specialist but was not certain because the reading specialist had not yet been hired. Ms. Pijaca was not certain whether Harry would miss his elective classes or a portion of his academic support class in order to receive his pullout reading instruction or his developmental reading class. Harry would not receive daily specialized reading instruction or daily small group reading and writing instruction because the classes only meet five out of seven days.

Ms. Sandra Savage, a special education teacher from Grafton High School, also testified about the co-taught program. Last year, Ms. Savage co-taught two 9 th grade English classes and three academic support classes. Her testimony was similar to Ms. Pijaca’s. As the special educator in the co-taught classroom, Ms. Savage testified that she would modify the curriculum by providing students with scaffolded notes, interjecting in class and, on occasion, teaching the class. She further testified that she would implement any accommodations on PLEP A of a student’s IEP but that she could not recall using any visuals. Ms. Savage testified that there were no visuals posted in the room. She did not use hands on activities. She did not consistently preview materials but would review materials during the academic support class. Ms. Savage reported she did use graphic organizers but not all co-taught teachers did. She stated she used two or three different writing formats or programs. She did not use Kurzweil in the classroom.

Overall, the testimony from the Grafton staff regarding the potential success of the co-taught model for Harry was unpersuasive. The testimony did not describe a consistent and cohesive method for addressing Harry’s complex needs. It was not clear from the testimony that the proposed program would provide the repetition, preview and review of materials and consistent, structured teaching that will allow Harry to make effective progress. I have reservations about the effectiveness of a co-taught model for a student like Harry who is reading as much as four grade levels below his peers. Grafton’s own reading specialist, Ms. Shawn Lijoi, conducted a reading assessment on Harry as recently as January of 2011 and found his reading ability to be 3-4 grade levels behind. As a student now entering high school, Ms. Lijoi testified that he still needs remediation in decoding, letter identification, fluency work, vocabulary building, work with suffixes, prefixes and root words and work with writing.

Special Education teacher, Mary Maher, who co-piloted the Grafton co-taught program and has co-taught in the program for the past two years, testified that she has not taught any student during those two years with Harry’s profile. Kathleen Baris, the Special Education Administrator from Grafton, testified that research supports inclusion, including co-teaching for students with “mild to moderate” disabilities. The evidence introduced at this Hearing, however, described Harry’s reading and writing disabilities as likely severe, and therefore, not in the “mild to moderate range”.17 Considering the severity of Harry’s learning disability, the lack of progress Harry previously made in a pullout model of teaching, and the lack of persuasive testimony that Harry would make effective progress in the co-taught program proposed by Grafton, I find that the parents have met their burden that the IEP proposed by Grafton is not reasonably calculated to provide Harry with a FAPE in the least restrictive environment.

I turn now to the question of whether Landmark is an appropriate program for Harry. Landmark is a Chapter 766 approved school. Landmark serves students of at least average cognitive abilities, who do not have behavioral issues but have learning disabilities in reading and written language. Melody O’Neil, the Assistant Admissions Director at Landmark, testified that there are approximately 6-8 students in each class. Each student participates in a daily one to one language arts tutorial, classes in math, science, social studies and language arts and an elective class. Students also participate in a class for their unique needs such as reading fluency, study skills or oral expression. Ms. O’Neil further testified that Landmark utilizes a multi-sensory teaching approach with significant emphasis on the use of visuals. There is also great emphasis on previewing information, vocabulary building, reviewing, repetition, spiraling and rephrasing of key concepts and information. Ms. O’Neil’s testimony was persuasive that Harry’s needs would be addressed in a consistent, cohesive, intensive and well-integrated fashion which would allow him to continue to make effective progress.18

Grafton admitted that Landmark was a DESE approved school but argued that Landmark was not appropriate because it does not have content specialists in all areas, does not use assistive technology, does not provide opportunities for engagement in the home community and does not offer support for emotional and social needs. They also argue that Landmark is not the least restrictive environment. I find that the programmatic concerns raised by Grafton do not render Landmark an inappropriate program. I do agree, however, with Grafton’s argument that Landmark is not the least restrictive environment for Harry.

Although, the Landmark day program would be an appropriate program for Harry, it does not meet the legal standard of the least restrictive environment. There has been no testimony that Harry requires a residential placement for educational purposes. In fact, the parents have acknowledged that the residential component is not for educational reasons but rather owing to the distance between Harry’s home and the Landmark School. I take administrative notice of the distance, and that travel time would be far in excess of the one hour each way travel requirement pursuant to 603 CMR 28.06(8)(a).19

Having found that the IEP proposed by Grafton is not reasonably calculated to provide Harry with a FAPE in the least restrictive environment nor can the IEP be modified to provide Harry with a FAPE (since placement in the co-taught program is not appropriate), and having further found that Harry does not a require a residential placement for educational reasons, I order Grafton to locate an intensive, cohesive, multi-sensory, well-integrated language based program for Harry, with small class size and appropriate peers, that utilizes language based teaching in all classes throughout the day, and provides specialized one to one or small group reading and writing several times per week.

In the event Grafton is unable to locate a program that meets the above-stated requirements prior to the start of the 2011-2012 school year, and having found that Landmark is an appropriate day program, Grafton would be responsible for Harry’s placement at Landmark (and attendant residential costs as without residential placement Harry cannot access the program).

ORDER

Grafton Public Schools must locate an intensive, cohesive, multi-sensory, well-integrated language based program for Harry, with small class size and appropriate peers, that utilizes language based teaching in all classes throughout the day, and provides specialized one to one or small group reading and writing several times per week. I would strongly encourage the District to work closely with the parents to identify such a program.

In the event Grafton is unable to locate a program that meets the above-stated requirements prior to the start of the 2011-2012 school year, and having found that Landmark is an appropriate day program, Grafton would be responsible for Harry’s placement at Landmark (and attendant residential costs as without residential placement Harry cannot access the program).

So Ordered by the Hearing Officer,

____________________________

Ann F. Scannell

Dated: August 18, 2011


1

Harry is a pseudonym used for confidentiality and classification purposes in publicly available documents.


2

Harry’s parents advised the TEAM that Harry had been accepted at the Landmark School for 9 th grade.


3

Dr. McCormick also observed a language based classroom but the TEAM proposed the co-taught model for Harry because the cognitive profile of the students in the language based classroom was well below Harry’s cognitive profile.


4

20 USC 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A); Mr. I ex. Rel. L.I. v. Maine School Admin. Dist. No . 55 , 480 F.3d 1 (1 st Cir. 2007)


5

20 USC 1412(a)(5). See also 20 USC 1400(d)(1)(A); 20 USC 1412(a)(1)(A); MGL c. 71B; 34 CFR 300.114(a)(2)(i); 603 CMR 28.06(2)(c)


6

20 USC 1414(d)(1)(A)(i)(I)-(III); Honig v. Doe , 484 U.S. 305 (1988); Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley , 458 U.S. 176 (1982)


7

Lenn v. Portland Sch. Comm. , 998 F.2d 1083 (1 st Cir. 1993)


8

Rowley , 458 U.S. at 197


9

G.D. v. Westmoreland Sch. Dist. , 930 F.2d 942 (1 st Cir. 1991)


10

20 USC 1400(d)(4); North Reading School Committee v. Bureau of Special Education Appeals , 480 F. Supp.2d 479 (D.Mass. 2007)(the educational program must be reasonably calculated to provide effective results and demonstrable improvement in the various educational and personal skills identified as “special needs”)


11

Lessard v. Wilton Lyndeborough Cooperative School District. , 518 F.3d 18 (1 st Cir. 2008)


12

603 CMR 28.05(4)(b)


13

MGL c. 71B; 603 CMR 28.01(3)


14

Schaffer v. Weast , 546 U.S. 49, 62 (2005)


15

All students at Carroll participate in a daily language skills support class which is called a focus area. Harry’s focus area was divided into writing structure and Visualizing and Verbalizing.


16

Harry’s mother and father persuasively testified about the positive changes in Harry’s outlook to school and his reduced stress and anxiety after his enrollment at the Carroll School.


17

Dr. McCormick testified that a program model that uses pullout instruction could be effective for students with mild learning disabilities. He further testified that Harry has a significant language based learning disability.


18

Dr. McCormick testified about his observation of the Landmark program and his familiarity with the Landmark program as he has evaluated other students enrolled in the program over time. He was persuasive that Landmark would be an appropriate program for Harry.


19

603 CMR 28.06(8)(a) provides in relevant part, “The District shall not permit any eligible student to be transported in a manner that requires the student to remain in the vehicle for more than one hour each way except with the approval of the TEAM.”


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