COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Medford Public Schools
BSEA#: 10-6403
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 July 26, 2010 and July 28, 2010 in Malden, MA before Ann F. Scannell, Hearing Officer. Those present for all or part of the Hearing were:
Ryan’s1 Parents
Gretchen Timmel, M.Ed. (via telephone) Educational Consultant
Kathleen Trainor, Psy.D. (via telephone) Psychologist
Kathleen Medaglio Director of Pupil Services, Medford P.S.
Luella Benn Evaluation Team Leader, Medford P.S.
Debra Finn Director of Speech/Language, Medford P.S.
Timothy Blake Principal, Medford P.S.
Amy Hatzigiannis School Adjustment Counselor, Medford P.S.
Theodora Koch Special Education Teacher, Medford P. S.
Elizabeth Robillard Wilson Reading Teacher, Medford P.S.
Nicole Chiesa English Teacher, Medford P.S.
Robert Augustine Advocate, Parents and Student
Alisia St. Florian Attorney, Medford P.S.
Soyoung Yoon Intern, BSEA
Tami Fay Intern, Murphy, Hesse, Toomey & Lehane
Laurie Jordan Court Reporter
Pauline Bailey Court Reporter
The official record of the Hearing consists of documents submitted by the parents and marked as Exhibits P-1 through P-7 and P-9 through P-14; documents submitted by Medford Public Schools and marked as Exhibits S-1 through S-25; and approximately 1 ½ days of oral testimony. Oral closing arguments were heard following the close of the testimony on July 28, 2010 and the record closed on that date.
INTRODUCTION
Ryan is a 13 year old student who will be entering 8 th grade at the Andrews Middle School in the fall of 2010. Ryan was initially diagnosed with a tic disorder when he was in first grade. Ryan was seen and followed by Dr. Krishanmoorthy at Boston Childrens’ Hospital. Dr. Krishanmoorthy subsequently diagnosed Ryan with Tourette’s Syndrome at age 10. Presently, Ryan’s tics are well controlled with the use of medication. Ryan also exhibits distractibility and difficulties sustaining attention due to the Tourette’s Syndrome. (Exhibits P-1, 4, 6, 11, S-3, 7, 9, 11, 12, 13, 14, 15, 16 and 17 and testimony of Ryan’s mother)
Ryan’s mother requested a TEAM evaluation when Ryan was in 3 rd grade because she was concerned about whether Ryan was performing at grade level. The evaluation found that Ryan was an average student and no further action was taken at that time. (Testimony of Ryan’s mother)
When Ryan entered 6 th grade his mother noticed him struggling academically. She was concerned that Ryan was not realizing his full academic potential, particularly in the areas of vocabulary, written expression and reading. He was also exhibiting “meltdowns” at home. Ryan’s mother spoke with Dr. Geller, Ryan’s treating psychiatrist.2 . Dr. Geller referred Ryan to Mimi Castelo, Ph.D. for a neuropsychological evaluation at Massachusetts General Hospital (“MGH”). (Testimony of Ryan’s mother)
On October 21, 2008, Ryan was evaluated by Dr. Castelo. Dr. Castelo’s findings suggested the presence of a language based learning disability. Ryan also manifested attention and executive function weaknesses that were consistent with Tourette’s Syndrome. (Exhibit P-6)
After receiving Dr. Castelo’s report, Ryan’s mother asked Medford to conduct an evaluation for special education services. The evaluation was conducted in January of 2009. As a result of this evaluation, Ryan was found eligible for special education services and an IEP was developed at that time. (Exhibits S-7, 8, 9, 11, 13 and P-3, 4, 5 and testimony of Ryan’s mother)
The initial IEP was dated from February 2, 2009 to February 1, 2010. It was accepted in full by the parents. Ryan was placed in a full inclusion program and received special education support in his English Language Arts class. Ryan also received direct Wilson reading services, speech and language services and assisted study services. (Exhibits S-6 and P-2)
In November, 2009, Ryan’s mother requested an additional speech and language session because Ryan enjoyed working with Ms. Kelly, the speech and language therapist. An amendment to the IEP was proposed adding this additional service. The parents accepted the amendment. (Exhibit P-3 and testimony of Ryan’s mother, Benn and Medaglio)
The TEAM met again on February 12, 2010 to develop an IEP for the coming year. No new IEP was proposed because the parents were waiting to receive a report from Dr. Seligsohn who had evaluated Ryan on January 4, 2010. A further meeting was held on March 19, 2010 to discuss the results of Dr. Seligsohn’s evaluation. A new IEP was proposed for March 19, 2010 to March 18, 2011. (Exhibits P-1, 7 and S-5 and testimony of Benn, Ryan’s mother and Medaglio)
The 2010 to 2011 IEP differed slightly from the prior IEP. This IEP called for inclusion support in math, social studies and science and English Language Arts. The parents rejected the IEP. (Exhibits P-1 and S-5 and testimony of Benn, Medaglio and Ryan’s mother)
On April 7, 2010, the parents filed a due process Hearing Request with the Bureau of Special Education Appeals. After receiving an extension of time, Medford filed a response to the Hearing Request on May 4, 2010. A prehearing conference was held on June 11, 2010. The matter was scheduled for Hearing at that time.
On May 4, 2010 a resolution meeting was held. Medford subsequently proposed a new IEP from May 4, 2010 to March 18, 2011. One session per week of direct counseling services and a regular education reading comprehension class twice per week were added to the IEP. Medford also advised the parents that a “lunch bunch” could be added to Ryan’s IEP. The parents rejected the IEP. (Exhibit P-3 and testimony of Ryan’s mother, Benn and Medaglio)
This matter proceeded to Hearing on July 26 and July 28, 2010. It is the parents’ position that the May 4, 2010 to March 18, 2011 IEP does not provide Ryan with a free appropriate public education (“FAPE”) in the least restrictive environment. Furthermore, it is their position that the Landmark School is appropriate.
It is Medford’s position that the May 4, 2010 to March 18, 2011 IEP does provide Ryan with a FAPE and the Landmark School is too restrictive.
ISSUES
The issues to be decided in this matter are the following:
1. Is the IEP dated May 4, 2010 to March 18, 2011 reasonably calculated to provide Ryan with a FAPE in the least restrictive environment?
2. If not, can the IEP be modified to provide Ryan with a FAPE in the least restrictive environment?
3. If not, is the Landmark program appropriate?
FACTS
Ryan is entering the 8 th grade at the Andrews Middle School in Medford. He resides with his parents and older sister in Medford. Ryan loves sports and actively participates in lacrosse, soccer, basketball and skiing. Ryan makes friends easily and cares about his classmates. Ryan also plays the guitar and drums and enjoys acting in plays. (Exhibits S-6 and P-2 and testimony of Ryan’s mother and father)
Ryan has average cognitive abilities. He has strengths in nonverbal reasoning and problem solving, and creative and imaginative thinking. Ryan also exhibits strengths in his ability to relate to others. Ryan’s weaknesses are in the areas of language and executive functions. Ryan exhibits significant language deficits in higher order meta-linguistic skills, phonological processing, syntax and semantics or word knowledge. He also manifests considerable weaknesses in written language expression. (Exhibits P-4, 5, 6 and 7 and S-7, 8, 10, 12 and 13 and testimony of Timmel)
In addition to his academic difficulties, Ryan suffers from Tourette’s Syndrome. The tics caused by the Tourette’s Syndrome are fairly well controlled with medication. Ryan, however, is affected by other behavioral and cognitive symptoms of the Tourette’s Syndrome. These symptoms include poor impulse control, hyperactivity, oppositional behavior and low self-esteem. (Exhibit P-6 and testimony of Trainor)
Ryan is being followed at MGH by Dr. Geller as a result of his Tourette’s Syndrome. Dr. Geller referred Ryan to Dr. Castelo for a neuropsychological evaluation after Ryan’s mother expressed her concerns with Ryan’s impulsivity, his low self-esteem and his academic struggles, particularly in writing, vocabulary and reading. (Exhibit P-6 and testimony of Ryan’s mother)
Ryan underwent a neuropsychological evaluation with Mimi Castelo, Ph.D. at MGH on October 21, 2008. Ryan’s scores on the Wechsler Intelligence Scale for Children (WISC-IV) placed him in the average range for intellectual abilities. Specifically, his nonverbal intellectual abilities were average and he showed weaknesses in verbal problem solving and his vocabulary base. Ryan’s scores on the Wechsler Individual Achievement Test (WIAT-II), the Gray Oral Reading Test (GORT) and the Oral and Written Language Scores (OWLS) revealed deficits in language based academic skills, including phonological processing, phonemic awareness, reading accuracy and written expression. Ryan scored significantly lower than expected based on his intellectual potential. His scores fell in the 2 nd to 5 th grade levels. Ryan also scored at the 5 th grade level in his ability to derive meaning from passages he read. (Exhibit P-6)
Ryan’s reading rate and reading accuracy on the GORT-4 was low average. This score placed Ryan at least one grade below grade level (4.7-5 th grade). On a test of written expression, Ryan scored in the average range. Dr. Castelo reported, however, that Ryan’s responses revealed significant vulnerabilities in formulating meaningful and grammatically correct sentences. (Exhibit P-6)
Ryan’s teachers and parents completed behavior rating scales. On the Child Symptom Inventory (“CSI”), Ryan exhibited symptoms of severe anxiety about his abilities in academic, athletic and school activities. The results on the Behavior Assessment System for Children (“BASC”) revealed that Ryan worries about what his peers will think and often gets nervous on tests. Ryan’s hyperactivity and impulsivity were consistently rated as concerns by his teachers. The teachers reported that Ryan has trouble staying seated, often interrupts when others are speaking and calls out in class. (Exhibit P-6)
Dr. Castelo opined that Ryan’s weaknesses in receptive and expressive language and academic achievement are suggestive of a language based learning disability. Ryan also demonstrated executive function weaknesses and difficulties with attention, inhibition and impulse control indicative of individuals with Tourette’s Syndrome. Dr. Castelo characterized Ryan’s difficulties in this area as a cognitive disorder due to a medical condition. (Exhibit P-6)
Dr. Castelo recommended that Ryan receive support in reading, speech and language development, written expression and emotional functioning. Specifically, Dr. Castelo recommended specific reading instruction in a small group or individualized at least twice per week on a year round basis. She recommended speech and language services to work on Ryan’s syntactic and higher level language deficits. Finally, Dr. Castelo recommended that Ryan receive special education support services within the general education classroom. (Exhibit P-6)
Following Dr. Castelo’s evaluation, Ryan’s parents requested an evaluation from Medford Public Schools. On December 17, 2008, Medford conducted a special education evaluation. Ms. Laurie Wasserman administered the Woodcock-Johnson Tests of Achievement (WJ). (Exhibit S-9)
Ryan scored in the average range in Broad Math, Math Calculation Skills and Written Expression. In Broad Reading, Ryan scored in the low average to average range. Ms. Wasserman reported that Ryan’s overall broad reading ability is limited and reading tasks above the grade 5.6 level will be quite difficult for Ryan.3 Ms. Wasserman also found that Ryan would be challenged to complete written language tasks above the grade 6.1 level and basic reading tasks above the 4.6 grade level.4 (Exhibit S-9)
Ms. Wasserman recommended a small group setting for tests, modified spelling tests, word banks and study guides for tests, and written guidelines for all projects and long term writing assignments. She also recommended that Ryan receive written expression services in a small group. (Exhibit S-9)
Ryan underwent a speech and language evaluation with Medford Public Schools in January 2009. Ms. Leigh Hadley administered the Picture Peabody Vocabulary Test 4A (PPVT-4A), the Expressive Vocabulary Test 2A (EVT-2A), the Clinical Evaluation of Language Fundamentals-4 (CELF-4) and the Comprehensive Test of Phonological Processing (CTOPP). (Exhibits P-4 and S-7)
This evaluation revealed that Ryan’s receptive language skills fell between the moderately low and high average range. Ryan’s ability to follow 1-4 step, verbally presented directions was in the high average range, while his ability to group words categorically and comprehend single word vocabulary fell in the low average range. Ryan also exhibited some relative difficulty recalling the main idea in a paragraph, recalling details and making inferences. (Exhibits P-4 and S-7)
Ryan’s expressive language skills were within the extremely low to average range. He had low average ability to recall verbally presented sentences. Ryan also exhibited extremely low ability to describe word relationships and formulate grammatically correct sentences. Ryan’s narrative sample revealed difficulty giving a clear introduction of the characters using referential pronouns. It also revealed Ryan’s difficulty with word retrieval. (Exhibits P-4 and S-7)
On January 20, 2009, Ryan underwent a Wilson Assessment of Decoding and Encoding with Medford’s Wilson reading teacher, Elizabeth Robillard. Ms. Robillard’s testing found that, although Ryan was able to read 90% of real words, he was only able to read 20% of nonsense words. This finding implied that Ryan had developed a significant sight vocabulary but had difficulty when sounding out unfamiliar words. Ryan also did not recognize some of the consonant sounds, short vowel sounds, r-controlled vowel sounds and most double vowels. Ms. Robillard recommended that Ryan begin the Wilson Reading program. (Exhibit S-8)
Following the evaluation by Medford, an IEP was proposed for Ryan. The proposed IEP dated February 2, 2009 to February 1, 2010, called for Ryan to be educated in a full inclusion program. Due to Ryan’s weaknesses in reading, spelling and written expression, however, the IEP provided specialized instruction and small group instruction for reading and assisted study skills. It also provided accommodations including previewing lessons, chunking material, word banks, study guides and modified spelling lists and tests. (Exhibits S-6 and P-2)
The IEP contained goals for speech and language, reading, academic progress and written expression. Ryan received one 45 minute direct speech and language session per week, three 45 minute direct Wilson Reading sessions per week, one 60 minute session of direct reading services per month and two 45 minute direct assisted study sessions per week.5 This IEP also provided special education support for Ryan during his general education English Language Arts class. Extended school year services were also provided. Ryan would receive 12 hours of tutoring in reading during the month of July. Ryan’s parents accepted the IEP and placement. (Exhibits S-6 and P-2 and 3)
By June 2009, Ms. Hadley, Medford’s speech and language therapist, reported that Ryan had been making progress towards his goal. She noted that Ryan was able to use visualization to recall the main idea and key details of a verbally presented article. He was then able to include 80% of the details of the article when summarizing the article using his pictures. Ryan also exhibited the ability to independently give multiple meanings for given words in three out of five opportunities. Ryan was also able to formulate grammatically correct sentences with 80% accuracy when given models. Ms. Hadley found that Ryan’s progress indicated to her that he would be able to achieve the goal by the end of the IEP period. (Exhibit S-24)
As of June 2009, Ryan’s Wilson reading instructor, Ms. Robillard, reported that Ryan had mastered the first four objectives on his IEP, including his ability to learn the sound/symbol relationship for all consonant sounds, short vowels, welded sounds and digraphs; the ability to read and spell short vowel words with up to four sounds with 80% accuracy; the ability to read and spell short vowel words with up to six sounds with 80% accuracy; and, the ability to understand a closed syllable and a closed syllable exception syllable with 85% accuracy. Ms. Robillard further reported that Ryan had completed Step 3.1 of the Wilson Reading program. (Exhibit S-24)
Ms. Wasserman, Ryan’s grade 6 special education teacher, reported that Ryan had made incredible progress. Ryan utilized his class time wisely, he would ask for and accept teacher assistance, he completed his agenda with verbal and visual assistance and was able to prepare for tests as well as lengthy written assignments. Ms. Wasserman anticipated that Ryan would meet his goals and objectives by the end of the IEP period. (Exhibit S-24)
By November of 2009, Ms. Kelly reported that Ryan’s ability to formulate grammatically correct sentences given visual examples had increased to 90%. He was also able to formulate grammatically correct sentences in two out of five opportunities without the use of models. His accuracy increased to 90% given visual cues. Again, Ms. Kelly anticipated that Ryan would achieve his speech and language goals by the end of the IEP period. (Exhibit S-23)
Ms. Robillard also reported more progress in her November 2009 progress report. At that time, Ryan was able to read and spell closed syllable words with 3-5 syllables with 80% accuracy. Ryan was also able to read and spell closed syllable words with the suffixes “ ing” and “ ed” . (Exhibit S-23)
Ryan was reevaluated at MGH on January 4, 2010 by Kay Seligsohn, a pediatric neuropsychologist. Ryan’s parents were aware that Ryan’s IEP was about to expire and they had concerns about whether Ryan was making academic progress. They were also concerned because Ryan was losing interest in school. (Exhibit P-7 and testimony of Ryan’s mother and father)
Dr. Seligsohn administered some of the same tests that Dr. Castelo had administered to Ryan in October 2008. Some of Ryan’s test scores decreased while other test scores increased. Ryan showed an improvement in his ability to formulate sentences. He was also better able to listen to brief paragraphs and answer questions about them. Dr. Seligsohn reported that Ryan’s results in some areas were consistent with the results of his 2008 evaluation. Ryan also showed some solid areas of growth and consolidation of skills. (Exhibit P-7)
Whereas Ryan had made some progress, Dr. Seligsohn reported that Ryan was not progressing at the expected rate. She found that across all subjects, Ryan had made less than one year’s progress to one year’s progress in a period of fifteen months. Dr. Seligsohn stated that the subtest score on the GORT revealed a “significant” drop in Ryan’s comprehension skills6 . Dr. Seligsohn found that Ryan had made minimal gains in his decoding, reading rate and accuracy. She concluded that Ryan had put so much effort into decoding that he was comprehending less of what he read when compared to the 2008 testing. (Exhibit P-7)
Dr. Seligsohn also reported that although Ryan had made progress in written language, she did not find that he had progressed at an expected rate. Overall, Dr. Seligsohn concluded that Ryan does not have the skills needed to function in the regular education classroom, even with supports. She recommended that Ryan be placed in a substantially separate language based classroom within the context of a highly specialized educational environment. (Exhibit P-7)
On January 5, 2010, Ryan’s Wilson Reading teacher, Ms. Robillard, conducted a follow-up WADE assessment. The assessment revealed that Ryan was making progress both in the sounds assessment and in the reading assessment. Ryan’s ability to read nonsense words increased from 20% correct in January 2009 to 72% correct in January 2010. (Exhibit S-8 and testimony of Ms. Robillard)
The progress reports from Medford staff in February 2010 reflect that Ryan continued to progress. Ms. Kelly reported that Ryan had achieved all of his speech and language goals. She did note, however, that Ryan still required specific instruction to independently use the word “unless” in a grammatically correct sentence. (Exhibits S-10 and 23)
Additional progress reports from April 2010 and June 2010 continued to show that Ryan was making progress toward his goals. In April, Ms. Kelly reported that Ryan continued to improve his sentence structures and the complexity of his sentences. Ryan was now independently using the word “unless” in grammatically correct sentences in four out of five opportunities. By June 2010 Ms. Robillard reported that Ryan had completed Step 5.5 of the Wilson Reading program. After beginning the program in February of 2009 at Step 2 Ryan was now ready to start Step 6. (Exhibits S-20 and 21 and testimony of Robillard)
An annual review TEAM meeting was held on February 12, 2010. At the parents’ request, a new IEP was not proposed as a result of the meeting because the parents were waiting for the results of Dr. Seligsohn’s neuropsychological evaluation of Ryan. A second TEAM meeting was held on March 19, 2010. Dr. Seligsohn’s report was discussed at that time. (Exhibits S-4 and 5 and testimony of Timmel, Benn, Medaglio and Ryan’s mother)
An IEP was proposed from March 19, 2010 to March 18, 2011. Instead of offering special education support in his ELA class only, this IEP proposed that Ryan receive special education support in math, science and social studies and English Language Arts classes. The parents rejected the IEP and placement. (Exhibits S-2 and 5 and testimony of Medaglio, Benn and Ryan’s mother)
A resolution meeting was held on May 4, 2010 after the parents had filed a Hearing Request. Following the resolution meeting a new IEP was proposed from May 4, 2010 to March 18, 2011. Medford offered to add a regular education reading comprehension class twice per week, direct counseling once per week and participation in a social skills “lunch bunch” program. These services were in addition to the increased inclusion supports proposed in the March 2010 to March 2011 IEP. The parents also rejected the May 2010 to March 2011 IEP. (Exhibits S-2 and 3 and testimony of Medaglio, Benn and Ryan’s mother)
DISCUSSION
Ryan is an individual with a disability falling within the purview of the Individuals with Disabilities Education Act (IDEA), 20 USC 1400 et seq. and the state 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.”7 FAPE must be provided in the least restrictive environment. The phrase “least restrictive environment” means that, to the maximum extent appropriate for the particular student, the educational services are to be provided with other students who do not have a disability.8
FAPE does not require a school district to provide special education and related services that will maximize a student’s educational potential.9 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.”10
A student’s right to FAPE is assured through the development and implementation of the individualized education program (“IEP”).11 Each IEP must be “custom tailored to address the handicapped child’s unique needs in a way reasonably calculated to enable the child to receive educational benefits.”12 The appropriateness of the IEP is judged as of the time when it is proposed – that is, whether the IEP was “objectively reasonable at the time it was promulgated.”13
An IEP must be developed which is “reasonably calculated to enable the child to receive educational benefits.”14 The IDEA further requires that special education and related services be designed to result in progress that is “effective”.15
Massachusetts special education regulations similarly 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.”16
Massachusetts also requires that the special education services be designed to develop a student’s educational potential.17 A child’s progress must be measured in terms of the child’s educational potential.18
Ryan is eligible for special education services due to his language based learning disability and Tourette’s Syndrome. There is no dispute as to Ryan’s eligibility. The only dispute in this matter is whether the most recent IEP proposed by Medford offers Ryan FAPE. The parents, as the party seeking relief in the instant case, have the burden of persuasion.19 It is their burden to show that the IEP proposed by Medford will not allow Ryan to make effective progress; that is, that the IEP was not reasonably calculated to provide Ryan with a FAPE in the least restrictive environment. After a careful review of the testimony and the documentary evidence, I find that the parents have not met their burden.
The testimony presented by the parents characterizes Ryan as a student who is significantly struggling at school both academically and emotionally. Ryan’s mother testified that Ryan began having more difficulty in 6 th grade with reading, spelling and writing. It was her testimony that Ryan desperately wants to read the books that his friends are reading but he is unable to do so even though he tries very hard. Ryan’s father testified that although Ryan loves sports, he won’t even sit and read the Sports Illustrated magazine. Ryan’s father further testified that he believes that Ryan won’t read, even sports magazines, because he is unable to do so. Both of Ryan’s parents further testified that over this past year they have noticed that Ryan is losing his desire to learn. They expressed their concern that Ryan seems to be “giving up.”
Medford staff, on the other hand, characterized Ryan as a hard worker who is progressing nicely with the special education supports in place. Ms. Robillard, Ryan’s reading teacher, testified that Ryan has made progress since she began teaching him in February 2009. She testified that Ryan is engaged in class and always knows what is going on. Whereas Ryan’s mother testified that he does not like to be “pulled out” of class to receive services, Ms. Robillard credibly testified that her class is not a pull-out but is built into Ryan’s schedule just like any other class.
Ms. Robillard further testified that Ryan began the specialized reading program at level 2 and had completed level 5 at the end of June 2010. She noted that his progress mastering the levels was typical of the other students she teaches. Ms. Robillard, however, was quite surprised at the progress Ryan showed on the Wilson Assessment of Decoding and Encoding (WADE). Ms. Robillard administered the WADE in January 2009, just prior to Ryan entering the Wilson Reading program and then re-administered the WADE one year later in January 2010.
Ms. Robillard was most impressed with Ryan’s ability to read nonsense words. The testing revealed a 52% increase in his ability to read nonsense words over this one year period. Ryan’s score increased from 20% to 72%, which Ms. Robillard characterized as an “incredible amount of progress”.
Ms. Robillard also tested Ryan’s word attack and letter-word identification skills. On testing in December 2008 Ryan scored at the 3.1 grade level in word attack and the 4.0 grade level in letter-word identification. These scores significantly increased when Ryan was retested in January 2010, approximately one year later. Ryan’s grade equivalent on the word attack subtest increased to the 6.9 grade level, almost a four grade level increase. His score on the letter-word identification test similarly increased. On that retest, Ryan scored at the 5.3 grade level, more than a one grade level increase.
Other Medford staff working with Ryan also testified that he was making progress and was able to access the curriculum with his special education supports. Ms. Finn, the supervisor of speech and language services, testified on behalf of Ms. Kelly, Ryan’s speech and language provider.20 She testified that Ms. Kelly was working with Ryan to increase his vocabulary, improve his grammar and syntax and augment his language comprehension. They also were working on his writing skills, including his ability to use multiple meaning words and idioms.
Ms. Finn testified that Ms. Kelly reported to her that Ryan had made considerable progress. This progress was further reflected in the testing completed by Dr. Seligsohn in January of 2010.21 Ms. Finn testified that on the formulated sentences subtest of the CELF-IV Ryan received a score placing him in the 50 th percentile, as compared to the 2008 testing completed by Dr. Castelo when he received a score placing him in the 2 nd percentile. Ms. Finn testified that according to the authors of the CELF-IV, the formulated sentences subtest is the most indicative of a language disorder. Ms. Finn noted that Ryan scored in the 50 th percentile in the understanding paragraphs subtest and in the 75 th percentile in the following directions subtest. Finally, Ms. Finn testified that Ryan scored within normal limits both times he was given the OWLS test which tells her that Ryan can perform within normal limits in writing skills. Overall, Ms. Finn testified that Ryan was clearly making progress because of the speech and language services Ms. Kelly was providing to him.
Ryan’s English Language Arts teacher, Ms. Chiesa, also testified that Ryan was making progress in her class. Ms. Chiesa testified that the class is co-taught with Ms. Koch, a special education teacher, or Ms. Koch’s aide. Ms. Koch would walk throughout the class and provide guidance and assistance to those students who were receiving special education services pursuant to an IEP. Ms. Chiesa testified that Ryan was an active participant in her class. He would raise his hand to answer questions and volunteer to read out loud. Over the course of the academic year, Ryan became more consistent with completing his homework assignments. During the final quarter of school, Ms. Chiesa testified that Ryan only missed one homework assignment.
Based on the scores that Ryan received on tests and quizzes, Ms. Chiesa testified that she was able to determine that Ryan was in fact comprehending the material he read. Her tests and quizzes included both open response questions and multiple choice questions so Ryan’s grades would be reflective of his true ability level, not inflated. Ms. Chiesa testified that Ryan received grades of C to B-. Finally, Ms. Chiesa testified that from the start of the school year to the end of the school year, she noticed improvement in Ryan’s writing abilities. Ms. Chiesa testified that she saw improvement in Ryan’s organization, his ability to develop topic sentences and his use of detail in his written work.
Ms. Koch, Ryan’s special education teacher, also testified that Ryan was making progress. She testified that Ryan was able to decode most words when he was reading out loud in class. She further testified that Ryan consistently raised his hand to volunteer to read out loud and act out the readings. Ms. Koch co-taught Ryan in English Language Arts class and served as Ryan’s main teacher for his assisted study support class. This class met two times per week. Ms. Koch testified that Ryan was able to use the writing strategies from the support class to complete his writing assignments in his regular education classes. Ms. Koch further testified that Ryan’s ability to use these strategies increased throughout the year. According to Ms Koch, his writing ability also improved.
Based on Ryan’s performance on the written assignments he was given about the material he read, Ms. Koch also found that Ryan was able to comprehend the material he reads. Ms. Koch testified, however, that Ryan was not always able to comprehend everything that he read. Furthermore, based upon her work with Ryan, Ms. Koch testified that Ryan’s reading comprehension skills were probably at a 6 th grade level.
As discussed above, the parents have the burden to show that the proposed IEP would not provide Ryan with a FAPE. The parents argue that the follow-up neuropsychological testing conducted by Dr. Seligsohn shows that Ryan has not made progress and that his test scores have decreased. The parents also rely on the testimony of Gretchen Timmel and Dr. Trainor to support their position. I find that the evidence and testimony the parents rely on shows that Ryan has difficulty with reading, spelling and writing, and is perhaps having some difficulty emotionally. Nonetheless, for the reasons outlined below, the evidence is not convincing that Medford’s proposed IEP fails to offer a FAPE to Ryan.
In comparing the scores Ryan received on the tests conducted by Dr. Castelo and Dr. Seligsohn, it is apparent that Ryan’s scores decreased in some areas and increased in others, and Parents focused on the decrease in GORT scores. While testimony from Dr. Seligsohn might have provided support for her conclusion that Ryan was not making effective progress, she did not testify at the Hearing.
To the contrary, Ms. Finn, Medford’s speech and language supervisor, testified that the GORT test is one in which the student reads out loud instead of silently. Ms. Finn testified that the prevailing view is that a student who has word finding difficulties should not be given the GORT test because the GORT is given orally. The studies show that word finding difficulties come to the forefront when one is trying to read out loud. Therefore, a student such as Ryan, should be administered a test that allows the student to read silently. Ms. Finn testified that studies have shown that when students with word finding difficulties read silently, their comprehension and their reading rate is much greater. Without any testimony from Dr. Seligsohn, Ms. Finn’s testimony is uncontradicted.
I also did not have the benefit of Dr. Castelo’s testimony to further explain the results of Ryan’s testing in October of 2008. Furthermore, neither Dr. Castelo nor Dr. Seligsohn included any information in their reports from any of Ryan’s teachers or staff at Medford. The testimony and exhibits reveal that Medford staff did complete some questionnaires at Dr. Seligsohn’s request. Dr. Seligsohn, however, did not incorporate any of this information in her report. Moreover, she could not be questioned about any information she gathered and/or why she did not incorporate it into her report because she did not testify.
Gretchen Timmel did testify on behalf of the parents. Ms. Timmel is an educational consultant and liaison for the Psychology Assessment Center at MGH. She works with Drs. Castelo and Seligsohn as part of a team. Ms. Timmel became involved with Ryan and his family in February of 2009. Ms. Timmel met with Ryan and his parents following the evaluation by Dr. Seligsohn. Ms. Timmel did not conduct any testing of Ryan. She did, however, review Dr. Castelo and Dr. Seligsohn’s reports. Ms. Timmel did not speak with any of the Medford staff and she did not observe Ryan at school. She did participate, via telephone, in the two TEAM meetings that were held in February and March, 2010.
Ms. Timmel testified that she agreed with Dr. Seligsohn’s findings and recommendations and further testified that the Landmark School would be an appropriate placement for Ryan. Although Ms. Timmel has significant experience as an educational consultant, for the reasons set forth below, her conclusion that Medford’s proposed IEP is not appropriate for Ryan and that the Landmark School is an appropriate placement for Ryan, is not supported by the evidence
Ms. Timmel described Medford’s IEP for Ryan as a pull-out model. None of the Medford staff characterized his IEP in this way. Ms. Timmel testified that she never observed Ryan in his program at Medford. Furthermore, Ms. Timmel testified that she was aware that Medford had a language based classroom which at one point may have been appropriate for Ryan. Her testimony in this regard was vague. Her testimony was also vague as to why Medford’s proposed IEP was not appropriate. She seemed to focus more on Ryan’s Tourette’s Syndrome and Ryan’s behaviors as a result of his Tourette’s Syndrome and conclude that Medford could not service Ryan mainly because of his Tourette’s Syndrome.22 The testimony from the Medford staff, however, was that Ryan did not exhibit behavior problems that interfered with his ability to access the curriculum. Ms. Timmel’s conclusions that Medford could not service Ryan and that the Landmark School was an appropriate placement were not supported by the evidence.
Dr. Trainor who sees Ryan and his family for therapy also testified on behalf of Ryan and his parents. I found Dr. Trainor to be professional and credible in her testimony about her therapy with Ryan. Her testimony, however, merely showed that Ryan reported to her that he is frustrated at times with school and that he has difficulties with reading and writing. Her testimony did not show that Ryan was not making progress at school or that the IEP proposed by Medford would not provide Ryan with a FAPE.
No one disputes that Ryan is having difficulty in the aforementioned areas. The law is clear, however, that an IEP must be developed that will allow a student to receive some educational benefit, not an IEP that maximizes a student’s potential. The IEP proposed by Medford from May 4, 2010 to March 18, 2011 provides for more services than the last accepted IEP. The evidence presented shows that Ryan was making progress with the services provided in the last accepted IEP. Certainly then, the most recently proposed IEP (May 4, 2010 to March 18, 2011) reflecting additional services is reasonably calculated to enable Ryan to receive educational benefits in the least restrictive environment.
The parents have not met their burden of persuasion. I find that the May 4, 2010 to March 18, 2011 IEP proposed by Medford is reasonably calculated to provide Ryan with a FAPE in the least restrictive environment. I would, however, urge Medford to conduct a thorough reading and written language evaluation by a reading and written language specialist since no such evaluation has been conducted and it would likely contribute valuable information with respect to on-going programming for Ryan.
ORDER
The May 4, 2010 to March 18, 2011 IEP is reasonably calculated to provide Ryan with a FAPE in the least restrictive environment.
So Ordered by the Hearing Officer,
_____________________________
Ann F. Scannell
Dated: August 23, 2010
1
Ryan is a pseudonym used for confidentiality and classification purposes in publicly available documents.
2
Dr. Geller specializes in Tourette’s Syndrome and has been seeing Ryan consistently since Ryan was diagnosed with Tourette’s Syndrome.
3
Broad reading includes reading decoding, reading speed and the ability to comprehend connected discourse while reading.
4
Basic reading skills includes sight vocabulary, phonics and structural analysis skills.
5
The IEP was amended in November 2009 to add an additional speech and language session per week.
6
Ryan’s scaled score decreased from a 7 to a 6. There was no testimony to establish that this was a statistically significant drop.
7
20 USC 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A).
8
20 USC 1400(d)(1)(A); 20 USC 1412(a)(1)(A); 20 USC 1412(a)(5)(A); MGL c. 71B, sections 2, 3; 34 CFR 300.114(a)(2)(i); 603 CMR 28.06(2)(C)
9
Bd. Of Educ. of the Hendrick Hudson Central Sch. Dist. v.Rowley , 458 U.S. 176, 197, n.21 (1982) (“Whatever Congress meant by an “appropriate” education, it is clear that it did not mean a potential-maximizing education.”).
10
G.D. v. Westmoreland Sch. Dist., 930 F.2d 942, 948 (1 st Cir. 1991).
11
20 USC 1414(d)(1)(A)(i)(I)-(III); Honig v. Doe , 484 U.S. 305, 311-12 (1998)
12
Lenn v. Portland Sch. Comm. , 998 F.2d 1083, 1086 (1 st Cir. 1993)
13
Roland v. Concord Sch. Comm , 910 F.2d. 983, 992 (1 st Cir. 1990)
14
Rowley , 458 U.S. at 207,
15
20 USC 1400(d)(4)
16
602 CMR 28.05(4)(b) (“the TEAM shall carefully consider the general curriculum, the learning standards of the Massachusetts Curriculum Frameworks, the curriculum of the district, and shall include specially designed instruction or related services in the IEP designed to enable the student to progress effectively in the content areas of the general curriculum.”)
17
MGL c. 71B, s. 1; 603 CMR 28.01(3)
18
Lessard v. Wilton-Lyndeborough Cooperative School Dist. ., 518 F.3d 18, 29 (1 st Cir. 2008)
19
Schaffer v. Weast , 546 U.S. 49, 62 (2005)
20
Ms. Kelly was not present at the Hearing due to vacation.
21
At the time of Dr.Seligsohn’s testing, Ryan had been receiving speech and language services with Ms. Kelly for approximately one year.
22
Dr. Geller, who treats Ryan for his Tourette’s Syndrome did not testify at the Hearing, nor did he provide any report that would explain how the Tourette’s Syndrome effects Ryan in the classroom.