Melanie and Concord Carlisle Regional School District – BSEA #02-3458



<br /> Melanie and Concord-Carlisle Regional School District – BSEA #02-3458<br />

In re: Melanie1 and Concord-Carlisle Regional School District

BSEA # 02-3458

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 before Hearing Officer Sandra Sherwood on November 12 and 18, 2002 at Catuogno’s Reporting Service in Worcester, Massachusetts, and on November 26, 2002, March 3, 4, April 2, 15, 16, and 22, 2003 at the Bureau of Special Education Appeals in Malden, Massachusetts. At the request of the parties, the record remained open until May 23, 2003 for receipt of closing arguments. Thereafter, at the school’s unopposed request for an extension, the record remained open until July 21, 2003.

Persons present for all or part of the hearing were:

Parents of Melanie

Richard Howard Attorney for Parents and Melanie

Rebecca McMahan Teacher, Eagle Hill School

Dorothy Bachtold Academic Advisor, Eagle Hill School

Steven Dykstra Speech/Language Pathologist, Eagle Hill School

Peter McDonald Headmaster, Eagle Hill School (telephonic testimony)

Lois Carra Neuropsychologist, Center for Children with Special Needs

Kent Rude Psychologist

Joanne Delaney Coordinator of Special Education, Concord-Carlisle Regional School District

Mary Gallant Attorney for Concord-Carlisle Regional School District

Hattie Thurman Speech/Language Pathologist, Concord-Carlisle Regional High School

Andrew Sapp Regular Education English Teacher, Concord-Carlisle High School

Amanda Payne Special Education Teacher, Concord-Carlisle High School

Rachell Siff Social Worker, Concord-Carlisle High School

Dick Lee Director of Special Education, Minuteman Vocational Technical School

Miriam Freedman Attorney for Minuteman Vocational Technical School

Sonia Zapolin Former Special Needs Teacher, Minuteman Vocational Technical School

Maureen Archambault Regular Education Teacher, Minuteman Vocational Technical School

Sonya Medeiros Court Reporter

Darlene Coppola Court Reporter

Denise MacKay Court Reporter

Linda Fowler Court Reporter

Maryellen Coughlin Court Reporter

ISSUES

1. Whether Concord-Carlisle Regional School District’s (hereafter, C-C) proposed 2001 – 2002 eleventh grade IEP was reasonably calculated to assure Melanie’s maximum feasible benefit in the least restrictive setting;

2. Whether C-C’s proposed 2002 – 2003 twelfth grade IEP was reasonably calculated to provide Melanie with an appropriate2 educational program in the least restrictive setting;

3. If not, a) whether the Eagle Hill School, a private residential school in Hardwick, Massachusetts, was designed to provide Melanie with an appropriate 2001 – 2003 educational program in the least restrictive setting, and b) whether Parents should be reimbursed for Melanie’s tuition and transportation costs at the Eagle Hill School.

PARENTS’ POSITION

C-C’s IEPs fail to provide the special education setting and expertise necessary to address Melanie’s severe language based disability affecting her learning and social/emotional skills. Melanie requires small classes, a residential, therapeutic setting, and a program taught by teachers highly skilled in working with learning disabled students. She requires a systematic phonics program, reading comprehension help, a multi-sensory curriculum, organizational strategies, and tools for analyzing. She requires the residential setting in order to address her social skills throughout the day. She should be grouped with similarly disabled students. C-C’s mainstreamed setting fails to provide such, for the classes are too large, the regular education staff is not trained to address her language based learning disabilities nor her social/emotional needs, the mainstreamed students are too sophisticated and are inappropriate peers for Melanie, and the special education services, although excellent, are insufficient. Finally, Parents point out that the 2001-2002 services must be reasonably calculated to maximize her educational development in the least restrictive setting. Not until the 2002-2003 school year, did Massachusetts adopt the federal standard ensuring an adequate and appropriate education in the least restrictive setting. The Eagle Hill School has provided Student with the small group setting designed for students similar to Melanie. In such setting, she is provided the direct teaching, the ongoing monitoring of her understanding, the organizational skill development, the reading comprehension support, and the social/emotional skill development throughout the day.

C-C’S POSITION

Student’s learning disabilities are best addressed at C-C’s High School where she can receive the expertise provided by the special education staff, where she can benefit from the mainstreamed classes, and where her social/emotional needs can be addressed in group settings designed to address social skill development. Student has shown her ability to handle mainstreamed classes while at Minuteman. Further, to the extent that she requires more intensive services, they can be provided at C-C’s High School. The Eagle Hill School lacks the special education expertise in addressing Melanie’s language based deficits, fails to address her social/emotional needs, and cannot provide the mainstreamed experiences so helpful for Student. Accordingly, it is neither appropriate nor the least restrictive appropriate setting for Melanie.

STATEMENT OF THE FACTS

1. Melanie is a seventeen-year old eleventh grader with at least average cognitive skills3 and a diagnosis of dyslexia, language based learning disabilities, and attentional deficits. Melanie’s reading skills are in debate: her decoding skills are significantly compromised – test results cluster around the 5 th grade level. However, the parties disagree as to her comprehension skills and therefore, the appropriate reading level for her materials.4 In general, Parents assert that 5-6 th grade materials are appropriate, whereas C-C asserts that with support, she can handle grade level materials. Her writing and spelling skills are also significantly compromised. Her relative strengths lie in her math skills. (P-92, P-69, P-50, S-1, S-37) Her expressive and receptive language disabilities affect not only her academic performance but also her social skills. Finally, she is further diagnosed with anxiety and social/emotional deficits, having difficulty initiating and sustaining social interactions and interpreting social cues. (Rude) Although both parties recognize her social/emotional deficits, they differ as to the source of those difficulties. Parents assert that her problems are language based in nature and are intensified by her difficulties learning in an allegedly inappropriate setting. (Father) C-C acknowledges that her language disabilities affect her social pragmatics, but that her emotional problems are a result of having too high expectations and an inability to understand and accept her disabilities. (Zapolin) She is a curious, hard-working, motivated student. (P-70) She is easily distracted by unimportant details, has difficulty with transitions and change, and presents as an inflexible thinker. (P-107) She has many outside interests and hobbies, including karate, swimming, rock climbing, bicycling, skiing, and canoeing. She has participated on several sports teams and has attended summer camps. She is also interested in computers, web design, science fiction, and animals. (P-71)

2. Melanie attended the Carroll School, a private school for special needs learning disabled students, for her fourth through seventh grade years, the Concord Public Middle School for her eighth grade year, the Minuteman Vocational Technical School (Minuteman) for her ninth and tenth grade years, and the Eagle Hill School (Eagle Hill), a private residential school for students with learning disabilities, for her repeated tenth grade year and her eleventh grade year.

3. At Concord’s Middle School, Melanie received special education support in all academic areas as well as remedial work in reading and writing. (P-91) However, according to Parents, Melanie’s Concord Middle School 1998 – 1999 eighth grade experience was extremely difficult for academic as well as social reasons. Based on these difficulties, Parents and Melanie decided that she could not be successful at C-C’s high school, and therefore enrolled her at Minuteman. They thought it would be less demanding academically and would offer vocational classes that would provide more “hands-on” learning. (Father)

4. Minuteman offers a program that alternates academic and vocational weeks. The academic classes are leveled, with level one being the highest and level 4 being the lowest. Melanie’s 1999 – 2000 Minuteman ninth grade academic program included a level 1 repeat of her eighth grade algebra class, level 2 history and remedial writing classes, a level 3 science class, level 4 special education accelerated reading and resource room classes, and weekly speech/language therapy. (Father, S-26, P-5, P-88)

Her final grades were:

Literature/Writing 9 B+

History B-

Algebra A

Science A

Accel. Reading A

Resource Room A

Fresh Seminar A

Information Proc A-
(P-88)

According to Minuteman staff, Melanie had an extremely successful ninth grade experience, both academically and socially. On her report card, the teachers described her as a hard working, dependable, fine model for other students. Her grades were almost all A’s. She made excellent progress in her reading class. (S-2) Socially, she had a small group of friends, and a particularly good friend in her resource room. (Zapolin)

According to Parents, she did well academically, and had a few friends, however, she did not bring them to her home, and did not telephone them. In their opinion, a) her academic success was due to the lower level work as well as the amount of special education and remedial work, and b) her social success was in part because all the students were new. (Father)

5. Melanie’s 2000-2001 Minuteman tenth-grade academic program was more challenging than the ninth grade program – she no longer needed the special education level 4 reading class but continued the level 4 resource room class and the level 2 literature/writing and history classes, she changed from the level 3 to the level 2 science class, and she added a level 2 Spanish class. Although Melanie’s IEP called for speech/language therapy weekly, Melanie insisted on attending additional resource room classes rather than the speech/language therapy, in order to keep up with her academic work, particularly in biology and history. The textbooks in these classes were difficult for her. (Zapolin, Father, P-66, P-4, S-26). Melanie also attended after-school for homework help twice per week. Finally, Parents provided tutoring (by a Carroll School teacher) at home two times per week, with the exception of swim season when scheduling prohibited it. Her classes had 15 – 18 students in geometry; 10 –12 in Spanish; 15 in English, and 22-25 in science and history. (Zapolin, Archambault)

Melanie’s major source of academic support occurred in the resource room, however Ms. Zapolin talked with her teachers on a regular basis. The teachers provided her with extra support but provided modifications only with occasional untimed testing.

As with all students, her academic grades were based on tests as well as extra credits given for “being first to present”, extra projects, etc. Further, they are based on grades sometimes obtained in reteaching materials and retaking tests that she failed. Or, she would retake the test in the resource room where she was more comfortable. Separate grades were given for effort and participation. (Archambault, Zapolin)

Her final grades were:

Information Process A-

Information Pro Rel B

English C+

Literature and Writing B+

History C

Geometry B

Biology C+

Spanish C+

Resource Room A

Her conduct grades were A’s in all classes with the exception of Biology – C, and Geometry – B. (P-66)

At the end of her tenth grade year, Melanie took the language arts and math MCAS exams with no accommodations (offered but declined). She passed the exams with scores in the “Needs Improvement” range. (P-73)

Melanie received in-school counseling as needed (approximately 2 times per week for 15 – 30 minute sessions), attended a weekly social skills group with five girls, and a social lunch with Ms. Zapolin and several other girls. (Zapolin) She attended one or two school dances, hosted a summer party, and went to movies a few times. She did not join any clubs or intramural sports teams. She participated in karate outside of school, and skied with her family. (Father)

6. In Parents’ opinion, Melanie’s tenth grade experience at Minuteman was a disaster socially and academically; she expressed significant anger and outrage, at times crying daily. She would become distraught with homework difficulties, she cried daily. She would cry, slam doors, etc. at home, in response to her homework difficulties. (Father) On the other hand, in May of her tenth grade year, Parents provided a more mixed view on Melanie’s Eagle Hill application. They stated that her high school experience “so far, has fluctuated between successes and struggles. … Melanie loves everything about computers, … she is always ready to attend school during shop week …shop is an area of success for Melanie. … Academics, however, are a different story. … the rotating schedule of academics and shop is too inconsistent for Melanie. … the biology and history textbooks are too difficult for her to read. … the learning style/teaching style compatibility between her and the teacher is especially important, along with the teacher’s ability to control the class. …With all these factors at play it is easier to understand why Melanie is extremely successful in some classes and barely passes other classes.” (P-71). At one point, she was failing biology, however, Father recognized that the teacher had very high expectations, and all of the students received low grades. Father believed that Melanie’s Spanish grades deteriorated midyear due to the change in teachers. (Father) By the spring of this year, Melanie told her parents that she wanted to go to a private school that could provide the smaller classes and more appropriate teaching styles. (Father) She was not requesting a residential school. (Father) It should be noted that Melanie eagerly went back to visit her peers and staff members after being at Eagle-Hill for two years. (Father)

7. The Minuteman staff agreed with Parents in part, and differed in part, as to Melanie’s 10 th grade performance. Such was testified to at length by Ms. Archambault (Melanie’s mainstreamed literature/writing teacher), and Ms. Zapolin (Melanie’s special needs teacher). Ms. Archambault was Melanie’s only mainstreamed teacher to testify, however, it should be noted that her class is one of the smaller classes, including approximately fifteen students; she was not able to say whether her teaching style was similar to others, and possessed limited information regarding Melanie’s performance in other classes. In her class, she testified that Melanie began her year with anxiety; she required a fair amount of confidence building. However, once she gained her confidence, she performed well in the class. She was focused, organized, curious, desiring to master the material, and was an active participant in class discussions. She frequently was the first to volunteer, she was able to understand and respond to her peer’s comments in discussions. She was able to advocate for her self, seeking help if needed. She worked on five paragraph essays, and read short texts written at the seventh to ninth and tenth grade level. She acknowledged that Melanie had more difficulty with the tenth grade readings and was unaware of the help provided at home in reading “The Shawsheen Redemption”. Ms. Archambault acknowledged that Melanie would not fare well in an honors level course, for that would include lengthy readings. Further, she stressed that it was important that Melanie feel confident and capable. She felt that her class of fifteen or so students was an appropriate size for Melanie. On cross-examination, she was asked whether Melanie would function well in a class with 22 – 25 students, some being more academically able and quicker, having better analytical skills, abstract thinking skills, etc. After a lengthy pause, she stated “I prefer seeing her in a situation where she is on top of the material and confident about herself and her skills and … I would rather she grow and learn as much as possible in the kind of setting she’s been in than throw her more angst.” However, on redirect, she stated that if the class was diverse, including students who were lower as well as higher functioning, she opined that this would be a good setting for her and that she would benefit from the rich content and discussion. (Archambault, April 15, page 105-107)

Ms. Zapolin was in regular communication with Melanie’s mainstreamed teachers and testified that Melanie’s experiences were extremely successful. She opined that only her anxiety interfered with her performance, and when she calmed Melanie down and helped her walk through the work, she was able to handle the material. Her Information Process teacher commented that she needed to improve her concentration. Her biology teacher reported that she was in danger of failing, however, this was not significant, for most of the students were similarly in danger, and secondly, Melanie achieved a final grade of C+. (S-2, Zapolin) She noted that Melanie was successful in her Spanish class until there was a change of teachers, at which point Melanie had difficulty – she surmised that Melanie performs better with the more nurturing, supportive teachers, and this new teacher did not provide this. (Zapolin)

8. The parties disagreed as to whether Melanie’s problems were predominantly social/emotional or whether they were academically based. Parents believed that her emotional problems were a result of her academic struggles in an inadequate educational setting. They repeatedly requested organizational supports, more pre-teaching, etc. (S-4, Father) Minuteman staff however, disagreed. Mr. Lee, Minute Man’s Special Education Administrator, responded to Parents’ concern, stating that she had excellent study skills, but “is prone to a degree of myopia when it comes to coordinating her academic responsibilities. Our biggest concern remains not in the organizational, but rather in the emotional realm.” He stated that her pressure to succeed has resulted in “meltdowns” requiring extensive staff intervention. The staff recommended counseling to help her “come to terms with the many positive aspects of who she is.” In so doing, Mr. Lee stated “I can assure you our concern here is not a gratuitous quest for a superficial self-esteem building at the expense of reasonable expectations.” (S-5) It is interesting to note that she was much more stressed during the academic weeks than during the shop weeks. (Father, Zapolin) The staff was concerned that Melanie set standards that were too high, for her brother was an extremely high-achieving student academically and socially, and they believed that Melanie compared herself to him. The guidance counselor noted her difficulty with adolescent teasing and immaturity, and stated “She does not have the self-confidence necessary to go through the appropriate stages of adolescent development successfully.”(P-108) Because of this dispute regarding the need for counseling vs. modifying the education services, Parents sought outside help in the form of a consult leading to a comprehensive evaluation at the Institute for Learning and Development (ILD), and did not agree to the counseling until Melanie’s second year at Eagle Hill. She currently receives counseling there. (Father, Zapolin) They continued to believe the remedy lay not in counseling, but in a more appropriate learning environment. (Father)

9. Driven by ILD’s as well as their own concerns regarding Melanie’s struggles at Minuteman, Parents began looking at private schools. They sought the help of an educational consultant experienced in recommending possible private schools for their daughter, and applied to several special education schools. Melanie was rejected from many. Frequently because her academic skills were too low, they could not provide sufficient support, there was no appropriate peer group, and/or they could not address her social issues. (Father, P-40, P-45, P-87) In September of 2001, Landmark rejected her, saying that it could not meet her needs. They noted that her profile suggested struggles with integrating information and comprehending complex language, and that she had deficits in her pragmatics of language and social interaction. (P-45) Landmark recommended Eagle Hill or Pine Ridge.

10A. After attending Eagle Hill’s summer program, Melanie was clear that she wanted to attend the school: she commented to Dr. Carra that “you can’t hide there, they help you. Further, they taught in a way that I could understand the material”. (Carra) In August of 2001, Eagle Hill accepted Melanie for the school year’s program as a repeating 10 th grader. Parents notified Minuteman and C-C, and Melanie enrolled immediately. (P-59, P-60) Eagle Hill is a private residential school in Hardwick, Massachusetts, and is not Chapter 766 approved. It serves students diagnosed with ADHD, learning disabilities, and who are of at least average intelligence. None has emotional/behavioral issues as a primary diagnosis. Many are college bound. The staff includes a few special education certified teachers, but also some who are not certified, and several certified as regular educators. (P-123) However, they receive yearly a full week of training, and if they teach during the summer, they receive an additional week of training. Further, they receive a few days / year of faculty development, and are encouraged to continually participate in workshops and other forms of faculty development. Many faculty members also speak at various special education conferences. (McMahan) The staff is supervised by the Assistant Headmaster who has a masters in secondary education and has completed his doctoral work in language literacy, and by the Assistant Director of Education who has a masters in education and is certified in Reading K-12, Special Needs 1 – 12, and in Orton Gillingham. (P-124, McDonald) They provide supervision as needed, as much as biweekly, and make classroom observations as needed. In addition to this, there are daily faculty meetings with a lot of support. Finally, veteran teachers provide peer mentoring for new teachers. The speech therapist consults, but does not supervise. (McDonald)

Eagle Hill provides classes with no more than eight students. The school’s philosophy stresses the importance of teaching to the learning and social/emotional needs of each student and of closely monitoring each student’s performance. Although not a standard language based program, Melanie is provided daily classes focusing on language in her literature, writing, and tutorial classes. The teachers share information regularly. The day and evening programs are coordinated in that social and academic goals are addressed throughout the day. (Carra, P-6, P-18) In addition to the daily 1:1 tutorial, literature, language, math, she receives health/PE, and an additional subject. (In Melanie’s 2002-2003 school year, parents requested, and Eagle Hill provided, weekly counseling.) Finally, she participates in a supervised study hall each evening. In May and again in October of 2002, Dr. Carra observed Melanie’s classes at Eagle Hill. She stated that in the American Literature class, there were four students. She observed the teacher leading a discussion requiring inferences and conclusions about the story. The teacher used multiple-choice and fill-in-the-blank formats and asked questions to draw out information. With this approach, the teacher was able to help Melanie use the facts to address the main theme. The teacher had expressed that he was concerned whether Melanie could handle the amount of symbolism in the book, but that his language based techniques helped her “bridge” from the concrete to the more abstract. In Dr. Carra’s opinion, Eagle Hill was providing Melanie with an appropriate educational program that addressed her academic, social, and emotional needs. The classes are small, structured, individualized, and offer instruction addressing her weaknesses while exploring her interests and strengths. (Carra, P-6)

Eagle Hill’s social/emotional skill development is addressed in the Intrapersonal Pragmatics class as well as throughout the school day and after-school/evening activities. Through role-playing, lecture, etc., the class addresses awareness of thoughts, emotions and behaviors. Issues such as assertiveness, aggressiveness, and passiveness are addressed. An individualized privilege system in the residence is tied to Melanie’s social skills. Further, the small class settings allow teacher intervention throughout the day. During the weekends, the structured, supervised programming continues with a variety of small group activities both on and off campus. (McMahan, S-12, P-6)

10B. Eagle Hill teachers reported Melanie’s reading comprehension as her main academic weakness. According to them, she reads too quickly, absorbing concrete details but having trouble grasping the main idea if not stated directly, making inferences, drawing conclusions, etc. She is, however, becoming more comfortable with such. With lengthier readings, she functioned at the 5 th -6 th grade level with 100% comprehension. Although the Terra Nova standardized reading test reflected higher reading levels (52 nd %ile), the Eagle Hill staff attributed that to the shorter passages with pictures and the multiple-choice format. (P-6 at page 132)

According to her speech/language therapist at Eagle Hill, Melanie is a visual learner, and is quite challenged auditorially. Her listening for details is better than abstract listening. She has difficulties with idioms. She struggles with vocabulary, word associations. She is better with rote memory than the more abstract learning. She does better in small student/staff ratios (although Mr. Dykstra has not observed her in bigger settings). She is very sensitive to pressure, and can shut down. According to Mr. Dykstra, Melanie made substantial gains in her academics and social pragmatics. Her level of comfort is much improved. It is true that her phonics test scores show a widening gap, however, her testing scores have historically been inconsistent and sensitive to her stress level. She has progressed significantly in her use of idioms and word association skills. (Dykstra)

According to her teacher, Melanie is reading 4 th – 5 th grade level texts; she is a concrete thinker and needs work on abstract reasoning. Her strengths lie in her knowledge base and in her ability to have many interests. She is strong in math and science. She does much better when she is relaxed. She can have problems expressing herself. She has made significant progress in this, and is significantly more relaxed.(McMahan) Her 2001-2002 progress report reflects improvement in following 4 step oral directions, excellent written explanation of her readings, great improvement in her oral summaries of what she has read, significant improvement in her reading comprehension – from 3’s (requires repeated assistance) to 1’s (mastery), and improvement in her grammar and mechanics of writing. (P-22) According to her teachers, social pragmatics is taught throughout the day, rather than a separate social skills class. Melanie does not dominate the class, as C-C asserts. She interacts well with her peers, and in fact is helpful in critical analysis of their work. The teachers are trained in social pragmatics, and provide support as needed, offering cues, etc. The staff meets daily, and corresponds regularly via e-mail. Melanie’s name came up a lot during her first summer at Eagle Hill, and the staff was unsure if she would make it there, given her social skills deficits. She has made significant progress in this area, although social concerns remain. In her academics, Melanie is more able to accept criticism, more able to complete complex tasks by breaking them down, and more able to problem solve rather than shutting down when overwhelmed. She has made significant progress, although she still has social concerns. In Ms. McMahan’s opinion, Melanie continues to require small classes for academic as well as social reasons, for she would become quiet in large classes and would not participate. Ms. McMahan has not observed her in any large classes. (McMahan)

Socially, she has 4 – 5 friends and interacts with a wider range of students. (Dykstra). She has made significant progress in her social skills: during the first year, she had “meltdowns” at least weekly. Such did not occur during her second year. She has a good circle of friends, spending weekends together, etc. According to her teacher, this residential setting is necessary in order to work intensively on her social pragmatics. She needs the constant repetition. (McMahan)

11. In January of 2002, and later in November of 2002, Concord-Carlisle (C-C) convened its TEAMS and proposed the 2001-2002 and 2002-2003 IEPs respectively, for Melanie’s eleventh and twelfth grades5 at the C-C High School. (The latter IEP called for services similar to the previous one, except that the tutorial was to be provided through the Pathways Tutorial program.) The IEPs anticipated mainstreamed classes in science, math, history, and literature. They called for the special education Integrated English class 4 x week; a tutorial 4 x week; after school tutorial ½ hour 4 x week; and speech/language and psychological therapies one x week each. (S-1, S-37, P-3)

11A. The Integrated English class is taught by two special education teachers as well as a speech/language therapist who joins them 4 x per week (and then 2 x per week during the 2002 – 2003 school year. The 7 – 8 students have at least average cognitive skills (with the exception of one student), language disabilities, and reading skills in the two – four years below grade level up to 12 th grade level. At least one of the special education teachers has extensive teaching experience, and has received additional training in Project Read as well as Lindamood Bell. Although not stated on the IEP, the class incorporates the Lindamood Bell, Wilson, and Project Read methodologies. It individualizes the reading comprehension, writing, and decoding/encoding curriculum as needed. Significant work focuses on inferences, predictions, and note taking. Thus, if Melanie needed more work on comprehension than on decoding, that would be provided. This class is not coordinated with the regular education classes, however, the tutorial is. The students read a story together (they use seventh to eighth grade novels), and the students are patient while a student is sounding out the words. The teachers help students develop advocacy skills, for they develop such a close relationship with the students. The students are very comfortable talking about their disabilities. (Paine)

Although a tutorial was offered both years, the Pathways tutorial (offered for the 2002 – 2003 school year) is a fuller program designed as a support to the regular education classes. There are four tutors: one reading specialist, two special education teachers, and one tutor. The format is designed around the needs of the students; the tutor may accompany the student in certain classes, for instance. The tutor has a close connection with the regular education teachers, meeting two times /per week, as well as with the parents through e-mailing, weekly progress reports, etc. The tutors help the teachers modify the curriculum as appropriate, reducing the amount of reading material, providing book summaries, suggesting alternative texts, etc., to allow the student to participate in the group discussions even if not able to read the whole book. Ms. Paine acknowledged that only the English courses included tutors; none was in earth science, world culture, or US history, for instance. The tutors are assigned based on scheduling and how many students are in need. (Paine)

With few exceptions, C-C High School’s mainstreamed education classes are grouped by grade, not by skill level. Thus, the groupings are diverse, with skills for junior year English classes ranging from second year college level to eighth and ninth grade writing skills. (Sapp) The guidance counselor who is familiar with teaching styles, is able to match students with appropriate teachers. (Chambers) Approximately 95-98% of the students attend post-high school education. The student environment is an accepting one; students with disabilities are accepted without teasing, etc., and rather, are treated with respect. Finally, C-C offers a wide variety of extra curricular activities, most of which are not competitive – such as Amnesty International, science fiction, sewing club, book groups, radio station, drama, sports, etc. (Sapp)

Mr. Sapp testified at length as to the nature of the mainstreamed classes by describing his English class, but also referenced the larger program. He stated that the C-C High School regular education staff is exceptionally professional and that they are provided latitude and a reasonable class load to develop their own styles to meet with the students, other teachers, individualize the work, etc. The staff members informally communicate frequently, both within and across departments. The English classes have 18 – 27 students. (Sapp) According to Ms. Chambers, the average class size is 20 – 22 students. (Chambers) Mr. Sapp offers a variety of modifications in his English class in order to address the needs of his students. For instance, he provides summaries or “Cliff notes” for the more difficult literature, in order that the special needs student can participate in the discussion, and then substitute the reading with an easier novel. Or, the student may watch a movie of the novel. Also, the tutor and English teacher may coordinate their teaching in order to support the student. If appropriate, the tutor can participate in the regular education class. Mr. Sapp uses a minimum of lecture – maybe 5 to 10 minutes, followed by discussion in the large group, or, occasionally, in smaller groups. Finally, C-C offers a media studies class as its literature class – one that may better meet the needs of a language disabled student. His class addresses organizational skills, uses graphic organizers, etc. Also, vocabulary is addressed in the English class, or in a 1:1 setting with the tutor. The writing workshops are individualized; thirteen papers are required, however, the students choose three. The grading is based in part on the teacher’s assessment, and in part on the student’s assessment. Mr. Sapp takes measures to help special needs students to successfully integrate into the mainstreamed setting. He considers it his responsibility to model respectful responses to students who may answer questions incorrectly or incoherently. He also would try varying seating arrangements, intervene in small group work, talk with the teachers, etc., in order to address the difficulties transitioning into the school. Finally, he encourages students to join clubs such as the science fiction group, or student governments. (Sapp)

11B. Parents rejected C-C’s 2001 – 2002 and 2002 – 2003 IEPs, believing that they offered educational programs similar to Minuteman’s – where, according to Parents, Melanie did not thrive. They believed that the programs lacked the necessary small group settings, the language based curriculum, and the therapeutic setting throughout the day. Further, they believed the peers would be too sophisticated and fast paced for Melanie, and the academic curriculum would be too intense. (Father)

At the hearing, C-C expanded its description of its high school programs. Thus, not until this hearing were Parents aware that the tutors could be provided in the classroom setting and could coordinate with the mainstreamed teachers, pre-teach, help in class. Further, they were unaware of the use of alternative texts where appropriate. Finally, Parents were unaware that C-C would fine-tune its IEP after they got to know Melanie better. (Sapp, Father) With this additional information, Parents continued to assert that C-C could not provide Melanie with an appropriate educational setting. (Father)

11C. Dr. Carra observed C-C’s program, and concluded that it lacks a sufficiently supported, language based, therapeutic setting appropriate for Melanie’s needs. The combination of the larger class sizes, the lack of special education expertise throughout the day, and the lack of a therapeutic focus renders it inappropriate. She acknowledged that the Integrated English class offers special education and speech/language expertise in a 7:3 setting, and offers Lindamood Bell, Wilson, and Project Read as part of its curriculum. However, she noted that it is not coordinated with or integrated into the mainstreamed classes. Further, she stated that this one class/day is insufficient to address Melanie’s reading and writing skill development. If it had been offered two periods per day, it would improve the program, but still the program would lack the carryover into the mainstreamed classes. As for the mainstreamed English class that she observed, Dr. Carra was emphatic that it is inappropriate. With the 23 students, the teacher could not provide sufficient monitoring of Melanie’s comprehension. Further, the class is too fast paced, and Melanie would not have enough opportunities to participate and could not handle the class. Further, she observed that the teacher does not have the skills to provide the necessary language based setting. Finally, modifications may help Melanie handle the regular education curriculum, but do not help Melanie develop her skills. She requires direct teaching to learn the necessary skills, to absorb the information, to access the main theme, etc.. Such must be taught in a language based class with similarly disabled students, and in a smaller class setting, and is not offered at C-C. (Carra)

Dr. Carra also opined that the program lacks a sufficient therapeutic focus, and to the extent that it addresses her social/emotional needs, it offers inappropriate groupings. Melanie lacks social skills and needs help inferring what people feel, how to resolve conflicts, what people need, etc.. In her opinion, Melanie needs intervention throughout the day, not just in separate individual or group sessions. (Carra) First, the social skills group, offered for the 2002-2003 school year, was comprised of peers inappropriate for Melanie. That is, contrary to Melanie, the students’ social emotional difficulties are not a result of their language based deficits. She was concerned that these students could not provide Melanie with support, and that Melanie’s self-esteem would be undermined by being grouped with these students. One was suicidal, one lacked the ability to understand nonverbal cues, and several processed verbal information so much more quickly than Melanie, such that Melanie would negatively compare herself to them. She acknowledged that this group is not a therapy group, but rather, a group to develop coping skills, however, she opined that different teaching methods would be used. Second, the Pathways tutorial students are inappropriate peers, for they are six freshman boys who transitioned in together from a private school. Thus, it would be hard for Melanie to break into the group and feel comfortable. Further, many of these students have many more language based deficits than does Melanie. (Carra)

12. Several evaluations are relevant to a determination of appropriate educational placement for Melanie’s 2001 – 2003 school years.

12A. In February of Melanie’s eighth grade (February 1999), Dr. Rosenberger of Massachusetts General Hospital, evaluated Melanie. He reported the 28-point discrepancy between her non-verbal and verbal IQ scores, her distractibility, her deficits in auditory analysis, and her average visual-motor integrative abilities. Her basic reading skills averaged at the fourth grade level; her math skills were solidly at grade level. The recommendations included trial medication for the attention deficit, tutorial assistance for reading, systematic rule-based phonetic instruction, resource room academic support, and homework support/structure. Boarding school should be considered to address this need for after school structure. (P-94)

12B. In the spring of Melanie’s eighth grade (May 1999), Phoebe Adams at the Center for Children with Special Needs (CCSN) conducted an educational evaluation. She reported “variable reading and written language skills with weaknesses in phonological processing, reading rate and fluency, spelling and written expression, all skills clustering, on average at the fourth grade level”. Relative strengths were noted with comprehension of structured material at the early eighth grade level, and with mathematical operations at the ending sixth grade level. She described her as a motivated young woman with average (but uneven) cognitive abilities, dyslexia and attentional issues. She noted problems with retrieval, processing, inattention to detail and inefficient strategy use. She recommended continued intensive language based instruction, but noted that such may be difficult to achieve in the context of the schedule offered at vocational schools. “To this end, she will require close monitoring, intensive instruction in basic skills, opportunities to generalize reading, writing and learning strategies to all settings and accommodations for attention problems.” (P-92)

12C. In the spring of Melanie’s ninth grade (2000), her speech/language therapist evaluated her language skills based on the CELF-3, TOWL, as well as informal conversations, teacher consultations, file review, review of writing samples, and observations. The evaluator noted her progress in both oral and written language over the year. The CELF-3 results were as follows: Melanie’s receptive language subtest scores were in the above average – high average range with the exception of word classes which was in the deficit range. Her expressive language subtests were in the average – above average range with the exception of word associations which was in the deficit range. Of difficulty were subtests where only an auditory cue was given and she needed to recall single words; she did well on visual tasks, or tasks for which at least a sentence stimulus or a paragraph of information was given. She required frequent repetition of auditory information. The TOWL standard scores results were vocabulary – 4; spelling – 7; style – 9. This low vocabulary score aligns with her reading level. The Test of Word-Finding scored Melanie as a “slow and accurate” word-retriever, with the skills of a 6 th grade reader. The SCAN-A scores predict difficulty with any language learning that is strictly auditory. Her language pragmatic skills were weak in noticing and comprehending subtle, non-verbal cues. She benefits from multi-sensory cues. The evaluator recommended language therapy 2 x week 60 minutes for vocabulary development, word-retrieval skills, spelling, and social language. Further, she recommended a social-skills support group addressing non-verbal cues in social language. (P-89, S-11)

12D. Near the end of Melanie’s tenth grade year at Minuteman (May of 2001), Parents sought an independent evaluation from the Institute for Learning and Development (ILD). Based on interview with Parents, input by Ms. Zapolin, a review of previous testing at Mass. General Hospital and the Center for Children with Special Needs, and six hours of testing, ILD reported Melanie’s verbal cognitive skills to be in the low average range, and her non-verbal skills in the average range (with a twelve-point split). They reported that her ability to respond to structured comprehension exercises and her ability to generate oral summaries, were delayed by 4 – 5 grade levels , i.e., 5 th – 6 th grade skills. Weaknesses were evident in spelling, organization, and study skills. Her reading skills were generally 4 – 5 years below grade level. ILD found mixed language skills, for her skills were age appropriate in drawing inferences and understanding metaphors, but were weak in word retrieval, vocabulary knowledge, knowledge and use of syntax, and ability to work flexibly with linguistic elements. She had difficulty with ambiguous sentences and with the organization of expressive language. ILD stated that “given Melanie’s difficulties in the areas of language, basic reading skills and the difficulty she displays with complex tasks that involve several sub-steps and sub-skills, it is likely that the reading of more technical, “expository” texts will be challenging for her. In addition, … assignments that require her to read large volumes of material within a limited time would also be challenging for her.” ILD found mixed results as to attentional and organizational skills. Melanie showed difficulty with attention at school, but attended well at home and during the evaluation. ILD conducted a self-assessment that revealed little about her internal feelings, and projectives, that failed to produce responses amenable to interpretation. However, based on some distress about her social acceptance at school, her pragmatic language difficulties, attentional weaknesses, and tendencies to interpret situations in a concrete manner, ILD expressed concern and recommended remediation in the area of pragmatics and social problem-solving. In summary, they stated that Melanie had not benefited from the traditional pull-out service model at Minuteman. They recommended that she be placed in a highly structured program with multi-sensory instruction, taught in a small group setting with a high teacher-to-student ratio, taught by staff skilled in severe learning disabilities as well as social problems. They recommended a structured multi-sensory phonics-based reading instruction. They recommended tutorials for content areas, organizational and study skills; a homework coach; modifications including extended time; speech/language therapy and small group instruction for social pragmatics. Finally, they recommended “demystifying” Melanie’s neurological, cognitive, and learning profile. (P-69) Parents were “shocked” by ILD’s reporting of no progress while at Minuteman, and thereafter sought another evaluation. (Father, S19)

12E. In September of 2001, Parents sought a second independent evaluation from Dr. Lois Carra. (Dr. Carra had previously conducted a psychoeducational evaluation in 1994 and Phoebe Adams of the same agency had performed an educational evaluation in 1999. (P-102, P-92)) Dr. Carra assessed Melanie’s reading comprehension skills to be at the 5.9 grade level, and reading rate skills at the low-average range. Further, she noted her difficulty handling complex language, affecting her academics as well as her social interactions. She recommended a residential school for language, reading, and social awareness. She wrote “In the past, Melanie has shown that she does not cope well with a large school and that she does not have the adaptive skills necessary to deal with academic or social demands without the proper support and direct instruction. I have great concerns about the harassment and rejection that she has experienced in the past. … Melanie is at risk for not being able to function in the world because of her literacy and social weaknesses. Without learning social perception/interaction skills, Melanie is at risk for reacting to many situations with rigidity and perseveration.” As to her social skills, Dr. Carra reported Melanie’s direct responses on the Tasks of Emotional Development, Sentence Completion, Interview, wherein she “revealed that although she desires social relationships, she has little awareness of how to interpret social situations. She showed few social competency skills and it was clear from her responses that she was exceedingly literal and that she misread or misinterpreted pictures of social situations that were shown to her.” She summarized her recommendations, stating that Melanie requires

· a separate specialized, therapeutic program that provides small classes, language based instruction and emotional support,

· grouping with others who have good intelligence and have similar language/learning needs,

· language based instruction including specific reading comprehension instruction,

· emotional support for students who have stress and low self-esteem related to school,

· direct teaching of social skills and opportunities for practice during all of her waking hours.

She stated that Eagle Hill’s program provides for Melanie’s social/emotional needs. (P-50)

In her testimony, Dr. Carra opined that Melanie needs a smaller class and school setting for several reasons. Her language based deficits require more monitoring of her understanding, more pre-teaching, and more opportunities to participate, than can be provided in the larger class settings. Her social skill deficits require closer intervention in social situations. She requires a small setting where friendships are more easily made. She needs this intensive program now, and may need an additional post-high school year before she would be ready for college. (Carra) Further, she needs the after-school activities as well as the dorm life for her social skills development and for the supervised homework periods. She requires classes of no more than eight students, in order that she can be part of class discussions, and that she can get help for her comprehension of information. Dr. Carra further opined that an inclusion program was inappropriate for Melanie, for academic as well as social reasons: she lacks the ability to “read between the lines”, and therefore for social reasons, requires an intensive environment where social skills can be addressed throughout the day, not just in a social skills class. Further, she needs more time for reading and writing. She could not handle the regular education discussions re Shakespeare, etc. Finally, in addressing her social pragmatics skills, Melanie shouldn’t be grouped with students with Aspergers/autism, for Melanie’s problems are more language based. (P-6, S-9)

12F. In May of 2002, Dr. Carra observed C-C’s proposed program. She observed the special education English class and the regular English class. She found that the one special education class daily was insufficient for addressing reading decoding, comprehension, and writing. Further, she found the regular education class inappropriate, for her language skills would interfere with her full participation in the class. For instance, the students were addressing inferences and making conclusions and predictions in a Shakespeare book – something that Melanie could not have handled. Even with modifications and supports, this class would only cause stress and frustration. Further, modifications rather than in-depth specialized teaching, would help Melanie cope, but would not help to increase her skills. Further, she found C-C’s program inadequate for addressing Melanie’s social skills deficits. First, the program is not geared towards hands-on teacher intervention throughout the day, for many of the settings are too large for such. The social skills class may address her deficits, but isolating the skill development to a class is insufficient for Melanie. Further, the proposed peers are inappropriate: they have emotional and behavioral deficits that are significantly different than Melanie’s, for hers are based not on emotional problems, but on language deficits. Student A is depressed and suicidal. Student C has Aspergers and has difficulties with nonverbal cues. In contrast, Melanie has language based social needs. Student B processes language too quickly for Melanie. It could make her feel inferior. Student D has an anxiety disorder and has no language based disorder. In sum, Dr. Carra asserts that Melanie’s academic and social deficits founded in her language based disabilities, require a program more specialized, more focused on small group learning throughout the day, and focused on students with language based learning disabilities. In her opinion, C-C’s program does not provide such. Finally, Dr. Carra further expressed concern with the Pathways tutorial in that the students are six freshman boys who all know each other from their previous school. This could prove difficult for Melanie to fit in. Further, several have more severe dyslexia, needing more work on phonetics, rather than abstract concepts, inferences, etc.. (Carra, P-6)

12G. In May of 2002, Dr. Rude provided C-C with consultation regarding Melanie’s placement. He had read Melanie’s evaluation by Dr. Carra and ILD, had briefly met Melanie, observed her at Eagle Hill and observed C-C’s program. He focused primarily on Melanie’s social/emotional needs. In his opinion, Melanie’s social/emotional needs are in the mild to moderate range and can be met at C-C. She is not diagnosed with any clinical depression, but rather, has self-esteem and social skills issues. Further, she participates in many social settings through her extracurricular activities. He described Melanie in her Eagle Hill School environment as smiling, energetic, outspoken, and upbeat. She focused on her class work, participated in her literature class, etc. He stated that her ability to organize and get to work would help her in social and self-esteem issues. He recognized the advantages to smaller classes in addressing social/emotional issues, however, he opined that if at C-C in larger classes, such can be addressed through social skills classes, 1:1 therapy, orientation at the beginning of the day, and an ombudsman. It is important that she be placed with a nurturing teacher who can reach out to her and can flexibly address her needs. In his opinion, C-C could appropriately match Melanie with such teachers. (Rude)

FINDINGS AND CONCLUSIONS

I find that Concord-Carlisle failed to address Melanie’s special education needs from a substantive as well as procedural point of view. Such decision is reached after an exhaustive review of the record, weighing the benefits and drawbacks of C-C’s proposed program and Eagle Hill’s program, and weighing the reasons for and impact of any non-compliance with the legally mandated TEAM process. As much as C-C provided considerable support for its positions, in weighing all of the evidence, I find that Melanie’s needs require a school designed for learning disabled students – one that provides small class sizes, a student population of similarly intelligent but disabled students, and teaching methodologies throughout the day that are tailored to the needs of the learning disabled students. I further find that although Melanie’s educational needs do not require a residential setting, such is called for given the one and one-half hour commute between Melanie’s home and Eagle Hill. I find that despite some excellent services, C-C’s IEPs failed to provide an adequate and appropriate education addressing Melanie’s described needs, and more clearly failed to maximize her educational development, as required for the 2001-2002 school year. In contrast, I find that Eagle Hill provides for Melanie’s educational needs and accordingly, offers an educational program that is adequate and appropriate in the least restrictive setting. Finally, I find that C-C failed to a) convene the TEAM with the necessary expertise, and b) consider the evaluations available to them, and thus, C-C denied Parents their legally mandated process for defining Melanie’s educational needs. As a result, neither Parents nor C-C staff possessed a solid understanding of Melanie’s needs, or of C-C’s abilities to address those needs. My reasoning follows.

1. Melanie is a classic example of a student who, in her younger years, required special education in a private school setting, and then with great effort, attempted to return to a mainstreamed setting. In fact, she tried two different mainstreamed settings – first the Concord Middle School, then, after a perceived unsuccessful year, Minuteman for two more years. She is a student, who for many reasons, should have been able to successfully reenter the regular education settings. She is intelligent, extremely hard working, a self-advocate for help, and her family was supportive, working with the school as well as providing home tutoring. Her special needs teacher was fully supportive, helping her in the resource room, and she received specialized reading instruction in the ninth grade. With all these factors in her favor, she had many successes. Her freshman year she earned high grades – A’s and B’s. Her successes, albeit fewer, continued into her sophomore year. She thrived and enjoyed the vocational classes. She was successful in her math classes. (Father, Zapolin) Finally, she succeeded in her Literature and Writing class with Ms. Archambault. In that class, she was an avid participant, volunteering in class discussions, felt confident about her knowledge of the material, kept up with the conversations, and responded well to others in discussions. (Archambault) This description of her Literature/Writing class performance certainly speaks to her ability to be a successful learner. However, her tenth grade mainstreamed experiences took a toll on her, both academically and emotionally. Despite her strengths, her parentally-provided home tutoring, and her dogged determination to do well, her mainstreamed academic grades were in the C range (English, History, Biology, and Spanish), with the exception of her math class and this one Literature/Writing class where she earned B’s. (P-66) Further, without dispute, Melanie exhibited significant emotional stress, frequently crying over her difficulties with the academic work. She constantly required intervention from the special education teacher to calm her down and help her with the work. Yet even with this, many of her grades were in the C range, and both Parents and Minuteman staff were extremely concerned about Melanie’s emotional status. Given her level of intelligence and her diligence, one must question whether, with smaller classes and more language based instruction, she could have accomplished more. Parents are persuasive that she could have.

A closer examination of her Minuteman record is revealing. First, her ninth grade was significantly less demanding than her 10 th grade, in the sense that it included a repeated eighth grade math class, a level 3 science class, a level 2 remedial writing class and two special education level 4 classes – accelerated reading and resource room. By all accounts, her 10 th grade mainstreamed academic successes were significantly fewer, earning with little fluctuation, C’s in most of her mainstreamed classes. Of those, she fared best in her math and literature/writing class. Her ability to handle mainstreamed math classes is not at issue, however, her success in this mainstreamed literature/writing class is instructive. It turns out that this class, taught by Ms. Archambault, had only fifteen or so students, and in order to accommodate the needs of the students, the reading materials were short and were at a grade level to 2-3 years below actual grade level. Thus, Ms. Archambault’s support of mainstreaming in settings similar to hers, is not inconsistent with Parents’ view that Melanie’s needs cannot be met in C-C’s larger classes and less supportive settings. Her cross-examination response was revealing: she was asked whether Melanie would function well in a class with 22 – 25 students, some being more academically able and quicker, having better analytical skills, abstract thinking skills, etc. After a lengthy pause, she stated “I prefer seeing her in a situation where she is on top of the material and confident about herself and her skills and … I would rather she grow and learn as much as possible in the kind of setting she’s been in than throw her more angst.” Clearly, she was concerned.6 (Archambault, April 15, page 105-107) Indeed, given a close look at Melanie’s performance in the various Minuteman settings, Parents rightfully expressed concern that, in the larger class setting, her reading difficulties, her difficulty with abstract thinking, and her need for significant support, would be problematic. Clearly, they were problematic in her tenth grade classes. They rightfully asserted that with the small classes, the teacher could more quickly monitor Melanie’s understanding of the material, and that further, she would have more time and chances to express herself. (P-71) Melanie’s special education teacher, who certainly knew Melanie well, and clearly wants the best for her, spoke in favor of mainstreaming for Melanie, for she is a self-proclaimed optimist. She provided many examples of Melanie’s success. However, several themes were predominant in her testimony. One was that Melanie required a nurturing, supportive setting in order for her to learn effectively. The second was that Melanie struggled and required significant support. Given that even with all of this support, Melanie had many “meltdowns”, cried frequently, and ended up with predominantly C’s in her larger academic classes, Ms. Zapolin’s support of mainstreaming is overly optimistic. Clearly she knows Melanie well, and clearly she and some of her colleagues offered her significant nurturing and support. However, Ms. Zapolin was not persuasive that Minuteman’s mainstream setting offered her the nurturing, supportive environment necessary for her educational growth. It didn’t and this is what led her to go to Eagle Hill. Mr. Lee’s opinion that Melanie’s stress was only during the swim season, is inaccurate, for her grades reveal her academic difficulties throughout the year. Rather, it appears that she tried her best through the year, and the cumulative effect led to greater stress in the second semester.

A look at the several evaluation reports further sheds light on Melanie’s educational needs, for they provide detailed descriptions as to her language disabilities in written and oral/auditory form, they predict her difficulties keeping up with the regular education peers in understanding the higher, more abstract materials, and in keeping up with the grade level texts. They recommend the small group settings in order to provide her with the direct teaching, the constant monitoring of her understanding, and the more frequent opportunities for participation than can be provided in the larger classes. Phoebe Adams at CCSN called for continued intensive language based instruction. (P-92) ILD recommended a highly structured program taught in a small group setting with a high teacher-to-student ratio, taught by staff skilled in severe learning disabilities as well as social problems. (P-69) Dr. Carra at CCSN called for a therapeutic program with small classes, language based instruction, emotional support, and groupings with others with similar intelligence and language/learning needs. (P-50) Finally, although several years old, Dr. Rosenberger’s report confirmed the diagnosis of specific dyslexia with associated attention deficit, and reported a 28 point discrepancy between her non-verbal and verbal IQ, as well as her fourth grade level reading skills – four years below grade level. He recommended curriculum support in resource room settings, tutorial instruction for reading mechanics. It is unclear whether he was asked to address the appropriateness of mainstreamed classes, however he did note that “the classroom is probably not a setting in which she functions with peak efficiency.” (P-94). Although Dr. Rude did not recommend this language based small group setting, his consultation was limited to her social/emotional needs, not her language based academic needs. (Rude)

Finally, a look at Melanie’s Eagle Hill performance is instructive. It was striking that even in the Eagle Hill setting, her teacher expressed concern with her ability to handle the amount of symbolism in the book. (P-6) It was striking that the staff, including Ms. McMahan, has Melanie using 4 th – 6 th grade reading materials. It is striking that in Ms. McMahan’s opinion, Melanie could not handle her higher-level history class, in part because of her difficulties with abstract thinking. Finally, it is striking that Ms. McMahan believes that Melanie could not handle the large mainstreamed class setting. She may not have worked with her in the large setting, but she clearly has an understanding of her learning style, her strengths and weaknesses, and her learning needs. Ms. McMahan teaches Melanie daily, and she is far from being an inexperienced teacher – although not yet special education certified, she has taught at Eagle Hill for eight years, she has been a certified high school teacher,7 she is Head of the History Department and oversees five other teachers, and she provides lectures on teaching learning disabled students. (McMahan)

There are virtually no current educational evaluations recommending the mainstreamed academic setting, there is insufficient success at Minuteman to support further learning in a mainstreamed setting – particularly a more demanding one, and there is confirmation at Eagle Hill of the need for small group classes designed to address her learning disabilities. Thus, C-C is not persuasive that its mainstreamed program, albeit with excellent components, can address Melanie’s needs. C-C does indeed offer an excellent special education Integrated English class – the class size, the teacher and speech/language pathologist’s expertise, and the peers are appropriate. The tutorials are appropriate8 . C-C’s social pragmatics class addresses Melanie’s social pragmatics skill development. It is the mainstreamed classes, however, that render C-C’s program inadequate and inappropriate for Melanie. The IEPs provide little to ensure Parents that Melanie’s needs would be addressed in that setting. They offer no special education consultation. They offer no direct special education services in the mainstreamed. They offer extra time for reading, but offer reduced content or alternative text only for above grade level readings. They offer some specially designed methodology/delivery of instruction, but fail to address Melanie’s need for monitoring of her understanding, need for frequent opportunities to participate, and need for help bridging from the concrete to the abstract. (S-1, S-37, P-3) It may be that the regular education teachers are provided significant leeway in developing their teaching styles, and it may be that some teachers are skilled in addressing the individual needs of students. However, Melanie’s IEPs do not ensure for this. Further, even if they did, C-C was not persuasive that it could overcome the difficulties presented in her tenth grade mainstreamed classes9 . It was not persuasive that Melanie’s classes would be taught at her level and at her speed, would provide her with sufficient opportunity to participate, would provide the necessary level of direct teaching support and monitoring, and ultimately, would provide the safe, nurturing setting wherein she would be successful10 . C-C was not persuasive that its mainstreamed program would address her needs and would differ sufficiently from Minuteman’s tenth grade program wherein she had such difficulty. Further, Dr. Carra was persuasive that the Inclusion English class, although appropriate, meets only once per day, and therefore, cannot adequately cover Melanie’s reading, writing, and comprehension needs. (Carra) Finally, C-C was not persuasive that the diverse student groupings would be appropriate for Melanie, for such would place Melanie with some faster-paced students, creating an environment where she would push herself to succeed at a level difficult for her. Ms. Archambault, Ms. Zapolin, and Ms. McMahan were each quite clear that Melanie requires a setting where she feels successful and nurtured, and should not be further stressed. Dr. Carra was persuasive that C-C’s mainstreamed classes could not provide for that.

There are two further factors to consider in determining Melanie’s ability to handle the mainstreamed setting. One is the inevitable increasing complexity of materials as she moved in to the eleventh and twelfth grades, and the second is the shift from Minuteman’s academic/vocational program to C-C’s all-academic program. The increasing complexity of academic work can only further challenge Melanie, and the vocational classes were a source of success for Melanie. The question remains, therefore, as to what impact the elimination of that source of success would have on Melanie, especially given the more complex academic work. Given Melanie’s significant stress in her academic subjects, this concern is significant.

Finally, Melanie’s own words undermined C-C’s claim that its programs were appropriate. That is, after attending Eagle Hill’s summer program, she clearly stated to Dr. Carra in reference to the small class setting and the teaching style, that “you can’t hide there, they help you. Further, they taught in a way that I could understand the material”. (Carra) Further, when asked, Melanie expressed that the small classes and individual attention were the main thing Eagle Hill School could offer her. (P-71) Given Melanie’s long-standing desire for a mainstreamed setting (she tried two different mainstreamed settings for three years), her comments regarding her need for the specialized more restrictive setting must be taken seriously. She clearly wants to learn, is a dedicated student, and states the conditions necessary for her to learn. It is interesting that three of her Minuteman teachers stated on her Eagle Hill application recommendations, that the small group settings would be so helpful for her. C-C attempted to rebut this by asserting that the teachers did not intend to recommend the small group settings, but wrote such only to support Parents’ application. C-C was not persuasive, however, for the only teacher to testify was the one with a smaller class – 15 students – and she in fact recommended settings smaller than the typical class size. Further, she could not comment on Melanie’s performance in the larger classes, wherein Melanie had such difficulty.

2. Parents relied significantly on Melanie’s social/emotional disabilities as reasons for her needing the Eagle Hill School. Although her social/emotional disabilities require significant attention, I find that they do not in themselves require a more restrictive setting than C-C’s setting. That is, C-C can provide the counseling and social skills groups11 needed to address her skill development in these areas. It may be that in a smaller class/school setting, Melanie would receive more intensive “hands-on” social skills intervention; C-C’s format for such intervention may be different than Eagle Hill’s, but with its many resources, C-C could address her needs. However, the record does support a finding that if not placed in a nurturing, supportive setting geared to the needs of learning disabled students wherein Melanie is able to succeed, her anxiety, stress, and tendency to shut down, negatively impacts her ability to learn. For this reason, C-C can not adequately address her social/emotional needs. Both Ms. Archambault as well as Ms. Zapolin stressed this correlation between her emotional status and her ability to learn. (Archambault, Zapolin) Melanie is a student who does not give up easily, but it is also clear that during Melanie’s tenth grade, the staff unanimously were concerned about Melanie’s emotional health and the impact that was having on her learning. (Archambault, Zapolin) The Eagle Hill staff corroborated this fact that she can shut down if overwhelmed. (Dykstra, McMahan)

3. Parents are not persuasive that Melanie requires a residential setting in order to address her social/emotional and organizational needs. However, it appears that the commute between Melanie’s home and Eagle Hill is one and a half hours. Assuming this to be correct, residential placement is warranted. Requiring Melanie to endure three hours per day traveling is a burden not imposed on the non-disabled student, and is in fact well over the state mandated one hour (each way) limit. It is also noted that after an exhaustive search, Eagle Hill was the only school that accepted Melanie. (Father) Accordingly, residential placement is warranted. Having found such, it is important that it be stated that Melanie’s social/emotional needs do not dictate the need for a residential placement. It may be true that she needs support in developing her social skills and in strengthening her emotional status. However, there is nothing to suggest that such cannot be addressed in a day program. First, although she lacks social pragmatics skills, Melanie does in fact have successes in the social arena. While at Minuteman, she had a small group of good friends and a larger group of students with whom she was friendly. Parents in fact recognized her progress in her second year there, for they stated in the Eagle Hill School application that “during ninth grade, her after school and weekend contacts tended to revolve around e-mail and chat rooms with her school friends. During the past year, however, she has begun initiating getting together and has also been using the telephone more often.” (P-71) Further, her multiple sports and other interests provide her venues for socializing. Clearly, her social pragmatics necessitate intervention, however, that could be provided through counseling, speech/language therapy, small group work, and intervention throughout the school day. There is nothing to suggest that Melanie would not benefit sufficiently from such intervention. She in fact looked forward to attending the weekly girls’ group at Minuteman. (Zapolin) Parents rely on Dr. Carra’s assessment as to her need for a residential setting. Such is not persuasive for several reasons. First, Dr. Carra is the only evaluator calling for such, and she had limited information regarding Melanie’s emotional/social status as well as her social life in and out of school. She had not spoken with the school staff. She was unaware, for instance, of her social success during her summer. Further, she acknowledged that Melanie was under stress when tested, and that observing her at Eagle Hill evidenced better social/emotional skills. (Carra) Secondly, the facts just do not support such. There is too much evidence of her successful social experiences, and of her ability to interact in the classroom setting, to justify the need for such a restrictive educational setting. Dr. Carra’s testing may be accurate in diagnosing her social/emotional difficulties – such difficulties with inferring what people felt, how they would resolve it, what people needed, etc. are documented by her teachers at Eagle Hill as well as at Minuteman. This, however, does not support the need for a residential setting.

4. Aside from the substantive determination of Melanie’s educational needs, there is a procedural determination as to whether C-C’s process was sufficient to render its conclusion reliable. I find that, in significant ways, it was not. C-C possessed very little information of its own on which to determine Melanie’s educational needs, for C-C had conducted no evaluations of its own, and had not taught Melanie for the last two years of schooling while she was at Minuteman. Thus, C-C was dependent on the Minuteman staff’s and Parents’ information, Melanie’s school record, the several independent evaluations, and the spring of 2000 speech/language evaluation. The TEAM convened in January of 200212 , then again in November of 2002. The January TEAM included Melanie’s special education teacher but not any of her mainstreamed teachers. Further, although there was significant expertise at the meeting – a speech/language pathologist, school psychologist, reading teacher, special educator and social worker – only the special educator, reading teacher, and social worker had worked with Melanie, and none were provided the rather extensive evaluation reports prior to the meeting. (P-3, S-1, Delaney) Thus, without the evaluation reports, all were denied information, but the speech/language pathologist and the school psychologist had little information with which to voice their opinions. Further, there was no mainstreamed teacher who could voice an opinion. Yet these are critical areas of expertise in addressing Melanie’s educational needs. Further, the law requires that a regular education teacher of the student be present at the TEAM meeting (see 34 CFR §300.344) and that the evaluations be used by the TEAM in discerning a child’s educational needs (see 34 CFR §300.320(a)(2)). Given C-C’s general lack of knowledge about Melanie’s educational needs, it was even more important that the TEAM members include a Minuteman mainstreamed teacher and that the TEAM members have access to the evaluations relevant to their expertise. It is true that Ms. Delaney has expertise as a psychologist and she had read the report. However, it is the TEAM, not one member, who is responsible for determining Melanie’s educational needs. She may have read the reports, but there was virtually no discussion of the reports at the meeting. Thus, the TEAM meeting could not have given confidence to Parents or the Bureau, that a well-reasoned analysis went in to understanding Melanie’s needs or defining a program to address those needs. This failure is particularly significant, given the fact that a) Parents and Minuteman staff disagreed as to the source of Melanie’s emotional problems, thereby alerting C-C to the need for a close look at the situation, and b) the TEAM’s recommendations for mainstreamed classes were in such sharp disagreement with most of the evaluators’. (See page 19 above) It appears that this lack of analysis impacted Father’s observation of C-C’s classes, for that observation just furthered his unaddressed concerns. From his understanding, the science classes are leveled and students are placed according to their reading abilities, thus denying Melanie access to the higher level class. The English class is too fast paced, and Melanie could not have kept up with it; how would it be for Melanie if she were expected to master only part of the material given to the class (some students master only 25%)? The economics class included significant lecture, used a difficult textbook, and the teacher assumed that the students understood the reading homework. (Father) It may be that C-C had not intended to show Parents classes specifically selected for Melanie, but rather teaching style. If the TEAM had appropriately addressed the concerns of her teachers and of the evaluators, it would have become clear that in Melanie’s case, if the TEAM were to recommend C-C’s high school, it would have to select specific classes deemed appropriate for Melanie, in order to assess whether her needs could be met in the mainstreamed setting. This did not happen.

The November of 2002 TEAM again lacked sufficient knowledge and expertise, for no one currently teaching Melanie attended the meeting. (S-37) As a result, the TEAM did not have adequate information. Further, they again failed to address in any comprehensive way, the evaluators’ recommendations as to class size, Melanie’s need for specialized teaching methodologies, and her ability to handle mainstreamed classes. Apparently, Dr. Carra’s evaluation had been summarized for the TEAM, but only she and the special educator had seen it. Finally, C-C failed to convene its TEAM prior to the 2002-2003 school year in order that Parents be informed as to C-C’s proposed educational program for that year. Such TEAM did not convene until it came to the attention of the Hearing Officer. C-C claimed that they had not done so previously because the case was in litigation. However, when there is a clear dispute between the parties, it is even more important that a TEAM review its offering in light of any updated information. Thus, in addition to an inadequate TEAM process, C-C offered nothing prior to Parents’ decision to keep Melanie at Eagle Hill for the 2002 – 2003 school year.

Eagle Hill provides an educational placement and program that addresses Melanie’s learning disabilities as well as her social/emotional needs. Its classes have a maximum of 8 students; all of the students have learning disabilities. Melanie is provided a daily 1:1 tutorial, literature class, a writing class, and weekly speech/language. With this, Dr. Carra and Ms. McMahan were persuasive that Melanie is provided the setting wherein the teaching can be directed to her language and learning needs, she can receive the individual attention and the monitoring of her understanding of the material, she can receive the necessary support to expand her expressive language and expand her ability to handle abstractions. As she stated, she can’t hide. (Carra, McMahan) Melanie’s academic progress is evidenced significantly in her attitude towards learning. She is more able to accept criticism, more able to complete complex tasks by breaking them down, and she rarely shuts down when overwhelmed. (McMahan) According to Parents, she is a “changed person” in regards to her attitude towards school, homework, and social situations. (Father) Given virtually every educator’s concern regarding her anxiety, shutting down, feeling overwhelmed, crying etc., Melanie’s changed attitude is significant in determining educational benefit. Her 2001-2002 progress reports reflect progress in many language skills. (P-22) According to her speech/language therapist, she has progressed significantly in her use of idioms and word association skills. (Dykstra)

Eagle Hill also offers her a setting in which she can safely and successfully address her social/emotional skills. It provides her with the ongoing close staff interaction that monitors and supports her social interactions. Given her difficulty with social pragmatics, it is unclear why Melanie had not yet taken more of Eagle Hill’s social pragmatics classes, however, Eagle Hill does offer it, and such would directly address her skill development in this area. (McMahan, McDonald, Dykstra, P-6, P-17, P-18)

It is noted that Eagle Hill is not Chapter 766 approved by the Massachusetts Department of Education. However, because Parents clearly made an exhaustive attempt to locate an approved school and because Melanie was not accepted at any such school, Parents had no choice but to place Melanie in a non-approved school, and should not be denied reimbursement for this reason.

6. C-C has raised several concerns regarding the appropriateness of Eagle Hill. It is important to note that the applicable standard for Parents’ right to reimbursement is not the same standard applicable to C-C’s IEP for the 2001-2002 school year – the courts have looked to the federal standard of the IDEA, and not the relevant state educational requirements. See Matthew J. v. Massachusetts Dept. of Educ ., 989 F. Supp. 380 (D.Mass. 1998); Joseph Doe v. West Boylston, 4 MSER 149 (D.Mass. 1998). Thus, although C-C’s 2001 – 2002 IEP must be reasonably calculated to maximize Melanie’s educational development, its 2002 – 2003 IEP and Eagle Hill’s program must be reasonably calculated to enable Melanie to achieve educational benefits. It must provide for significant learning and confer meaningful benefit through personalized instruction with sufficient support services. See Hendrick Hudson Bd. Of Education v. Rowley , 458 U.S. 176, 188-189 (1992); Burlington v. Department of Education , 736 F.2d 773 (1 st Cir. 1984). Some of C-C’s concerns may be justified, however, in weighing the benefits with such concerns, the benefits are clear. This is a setting in which Melanie has an excellent opportunity to further her learning and strengthen her social/emotional skills. As such, it provides her with an appropriate educational program, and Parents should be reimbursed for their out-of-pocket expenses.

C-C’s concern regarding the staff expertise is legitimate in that special education certification is evidence of a certain level of expertise, and most of the teaching staff members lack this certification. However, this is tempered by several factors. First, the teachers are supervised by the Assistant Head Master who has a masters in Education and has completed his doctoral work in language literacy, and by the Assistant Director of Education who has a masters in education, and is certified in special education 1-12, reading K-12, and Orton Gillingham. They supervise as needed, as much as biweekly, and make classroom observations as needed. Second, the teachers all receive yearly an intensive week of training, and are encouraged to participate in workshops and classes on a regular basis. Third, the teaching is in the context of a school designed for students with learning disabilities. C-C was also concerned that the speech/language therapist consults but is not closely involved with the teachers. Again, C-C’s concern is legitimate, given the language based nature of Melanie’s disabilities. It should be noted, however, that C-C’s mainstreamed classes do not offer language based teaching techniques, and Melanie’s IEPs call for no speech/language consultation or coordination with the mainstreamed teachers. C-C also questions the effectiveness of some of Mr. Dykstra’s techniques with Melanie (for example, he did not incorporate her visual strength when working with her auditory weaknesses, and he failed to use her class work as a motivator, and failed to teach her social pragmatics in her 1:1 setting). Finally, C-C notes that Melanie’s test scores reveal a widening gap in her phonics skills, and this is concerning – it is unclear whether this is attributable to her tendency for testing inconsistencies. Despite the importance of C-C’s concerns, when looking at the amount of expertise that is there, along with speech/language therapy, the small class sizes the student population, and Melanie’s changed attitude towards learning, Parents are persuasive that Eagle Hill provides an educational program that allows Melanie to make educational progress in her academic as well as social/emotional skill developent.

C-C asserts that the staff is not providing the language based techniques or the teaching of social skill development. This program may not provide a full language based program – the teachers are not trained in such, and the speech/language therapist does not integrate his work with the classroom work. However, Melanie receives intensive work with language skills in her tutorial, literature, and writing class daily as well as speech/language weekly. Thus, language is a central focus of her curriculum. Further, the small class setting (as opposed to the larger class setting) more easily allows the teacher to address Melanie’s expressive and receptive language skills. As for the social pragmatics, Ms. McMahan testified with significant assurance that contrary to C-C’s observations, social pragmatics is taught throughout the day, sometimes in class, sometimes after class where it can be addressed more privately with the student. Given that the curriculum material emphasizes social pragmatics, Melanie’s IEP includes social pragmatic goals, Ms. McMahan’s testimony is credited as true. It may be that C-C staff did not observe teachers taking advantage of “teachable moments”, however, there is too much evidence of staff focusing on social pragmatics, to agree with C-C’s position on this matter. (McMahan, McDonald, Dykstra, P-18) Further, just as C-C staff observed a lack of appropriate teaching techniques, Dr. Carra observed appropriate techniques. C-C’s observations may speak to the need for better supervision of its staff, but not to any inappropriateness of the program for Melanie.

In sum, despite C-C’s several legitimate concerns, Parents were persuasive that in this setting, Melanie is provided an education directed to her learning needs, her skill levels, and her social/emotional needs. She is provided with a setting wherein she can and is relaxed, comfortable, and able to successfully learn. Accordingly, it provides her with an appropriate educational program.

ORDER

C-C shall reimburse Parents for their out-of-pocket expenses for the Eagle Hill tuition and transportation for the 2001 – 2003 school years.

By the Hearing Officer,

______________________________

Date: November 19, 2003


1

Melanie is a pseudonym chosen by the Hearing Officer in order to protect the privacy of the student.


2

As of January 1, 2002, Massachusetts state law regarding the standard for IEP services changed. Accordingly, the older standard applies to the 2001-2002 IEP and the newer standard applies to the 2002-2003 IEP. See M.G.L. Ch. 71B §3, Stat 2002, c. 184 §83.


3

In 1994, her WISC-III cognitive test scores reflected superior non-verbal abilities, and average verbal abilities, with a 28-point gap between the two. In 2001, her WISC-III test scores reflected a 12-point gap, with average non-verbal skills, and low-average verbal skills. (P-102, P-69)


4

In her eighth grade year, MGH reported that her reading comprehension skills were at the 4.9 grade level. (P-94) That same year, Phoebe Adams at the Center for Children with Special Needs asserts that her reading skills are variable, with 4th grade skills in phonological processing, reading rate and fluency, but that she can comprehend grade level materials. (P-92) Ms. Archambault at Minuteman asserts that she can handle reading materials at the 7 th – 9 th grade level. Ms. Zapolin at Minuteman asserts that she can handle the grade level texts with support. (Archambault, Zapolin) Near the end of Melanie’s tenth grade year, the Institute for Learning and Development (ILD) reported that her reading skills were generally 4 – 5 years below grade level. They stated that Melanie would have difficulty with the more technical texts and with large volumes of reading material. (P-69) Dr. Carra, also with the Center for Children with Special Needs, asserted that her reading comprehension skills were at the 5.9 grade level, and that her reading rate skills were at the low-average range. (P-50) Melanie’s Eagle Hill teachers assert that she is reading 5 – 6 th grade materials. (McMahan) Ms. Delaney surmises that Melanie’s comprehension skills are around one to one-and-a-half years below grade level, if untimed. She qualified this, however, stating that she will always need help “seeing the bigger picture, doing the broad abstraction in verbal areas”. (Delaney)


5

Melanie would have entered as an eleventh grader, given her credits at Minuteman. Her repeat of the tenth grade at Eagle Hill was a decision made by the Eagle Hill staff.


6

On redirect, she stated that if the class was diverse, including students who were lower as well as higher functioning, this would be a good setting for Melanie and that she would benefit from the rich content and discussion. In the context of her testimony, her initial response evidencing her concern, is given more weight than this later statement.


7

Although she is qualified, her high school teaching certification lapsed, and she has not yet updated her certification because it is not needed to teach at Eagle Hill. (McMahan)


8

The Pathway tutorial peers may be a closely bonded group of boys, and they may have strengths and weaknesses different from Melanie’s, however, they all have average to above-average cognitive skills and have language based disabilities and share her problems with inferential, abstract thinking. Parents were unpersuasive that such a group would not offer appropriate peers for learning.


9

C-C’s reliance on Melanie’s success at Minuteman’s significantly lower skilled ninth grade classes was misplaced. Several of those classes were special needs classes and they included a repeated eighth grade algebra class. C-C’s program does not replicate this degree of special education classes and lower level classes, and does not include a repeated subject.


10

In response to the question as to how does the teacher monitor a student’s comprehension, given the class size, Mr. Sapp stated that he relies on quizzes, homework, and non-verbal cues in class. It is interesting, and not surprising, that in a class of this size, Mr. Sapp’s first thoughts were not for more active participation as a method for monitoring a student’s comprehension. (Sapp)


11

Parents were unpersuasive that the peers in the proposed social skills group rendered the group inappropriate for Melanie. Rather, C-C was persuasive that placing her in a group with diverse strengths and weaknesses could be helpful to Melanie in strengthening her self-esteem.


12

Although C-C offered no IEP until January of 2002 after its TEAM meeting, both parties agree that this delay was necessitated by Parents’ request to obtain the independent evaluations prior to the TEAM meeting. Thus, the lack of an earlier IEP is not to be held against C-C.


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