Pembroke Public Schools – BSEA # 10-1097



<br /> Pembroke Public Schools – BSEA # 10-1097<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re: Pembroke Public Schools

BSEA #10-1097

DECISION

This decision is issued pursuant to the Individuals with Disabilities Education Act (“IDEA”, 20 USC Sec. 1400 et seq.; Section 504 of the Rehabilitation Act of 1973 (29 USC Sec. 794); the Massachusetts special education statute or “Chapter 766,” (MGL c. 71B) and the Massachusetts Administrative Procedures Act (MGL c. 30A), as well as the regulations promulgated under these statutes.

The Parent filed a request for hearing on October 20, 2009 in which she asserted that Pembroke’s IEP and services were not reasonably calculated to enable Student to make effective progress in his areas of need, particularly in reading. Parent sought an order directing Pembroke to place Student in a private day school placement for two years.1

The matter was continued several times for good cause, at the request of one or both parties, to enable the parties to attempt resolution short of a hearing. After these efforts, which included mediation, were unsuccessful, a pre-hearing conference was held on February 10, 2010, and the hearing took place on April 12 and June 21, 2010.2

Those present for all or part of the proceeding were:

Student’s Mother

Laurie Casna Director of Special Education, Pembroke Public Schools

Jessica Duncanson Vice Principal/Special Education Chair, Pembroke

Lara Taylor Special Education Teacher, Pembroke

Amy Durgin Regular Ed. Science/Social Studies Teacher, Pembroke

Paul McDonald Regular Ed. Math Teacher, Pembroke

Karen Dwyer Speech/Language Pathologist, Pembroke

Francis Colosi School Psychologist, Pembroke

John Fahey Private Neuropsychologist

Elizabeth Caronna, M.D. Developmental Pediatrician, Boston Medical Center

Mary Ellen Sowyrda, Esq. Attorney for Pembroke Public Schools

The official record of the hearing consists of Parent’s Exhibits P-1 through P-28, School’s Exhibits S-1 through S-25, and several hours of tape-recorded testimony and argument. The parties waived written closing arguments and the record closed on June 21, 2010.

ISSUES PRESENTED

The issue in dispute is whether Pembroke’s IEP and placement for the period from November 2009 through November 2010 is reasonably calculated to provide the Student with FAPE, or whether Student needs to be placed in a private day program, the Beal Street Academy, in order to make effective progress.

POSITION OF PARENT

Student has a severe learning disability that interferes with his ability to learn to read, and functions well below his grade and age level in reading. In sixth grade, Student was reading only at a third grade level despite having received special education services since preschool. Two private evaluators, a developmental pediatrician and a neuropsychologist, informed parent that Student needed an outside placement to make effective progress, given the severity of his reading deficits. The Beal Street Academy is willing to accept Student and its program would enable Student to make effective progress in reading.

POSITION OF PEMBROKE PUBLIC SCHOOLS

The School agrees that Student has a significant language-based learning disability that affects him in all areas of the curriculum, particularly in reading; however, Student has been making effective progress in his Pembroke program. Pembroke has provided and will continue to provide Student with the specialized instruction, speech-language therapy, and accommodations that he needs to access the curriculum. Student functions very well in the less restrictive setting of his local elementary school. A private day placement is unnecessary and far too restrictive for Student.

FINDINGS OF FACT

1. Student is twelve years old. At all relevant times, Student has attended the ABC School in Pembroke.3 During the 2009-2010 school year, Student was a sixth-grader. Student’s eligibility for special education and related services is not in dispute.

2. The parties agree on Student’s profile. Student is consistently described as a very friendly, polite, considerate, and well-behaved child. In school, Student is well-organized, motivated and very hardworking. Despite many learning challenges, Student has a positive attitude towards school.

3. Student currently is diagnosed with a severe language-based learning disability that impairs his ability to read, write, spell, and comprehend information presented orally at a level commensurate with his grade and age, and interferes with his ability to express his ideas at the level of his understanding.

4. According to language testing performed in the spring of 2008, Student’s expressive, receptive, and language memory skills were in the “low” range of functioning, while his skills with vocabulary and language use were “average.” In reading, Student struggles with decoding and encoding, fluency, and sight word recognition. Testing has revealed weaknesses in phonemic awareness.

5. Student also has an auditory processing disorder, which makes it difficult for him to understand instruction and directions presented orally. Student’s disabilities interfere with all of his academic activities, especially in language-related areas. He lags behind his peers despite accommodations, services, and much effort on Student’s part. In contrast to his skill levels in language-related areas, many of Student’s math skills are in the average range.

6. Student has been receiving special education and related services since preschool, when he was diagnosed with a communication disability and developmental delay. From that time forward, Student has received many accommodations as well as a variety of services pursuant to successive IEPs, including academic support, specialized instruction in reading, writing, and math, speech/language therapy, and occupational therapy, preferential seating, modified assignments, use of graphic organizers, templates, number lines, etc., repetition of instructions, use of brief, simple oral language in the classroom, reduced workload, reading written material to Student if it is above his reading level, using a scribe for written assignments if appropriate and using an FM device in the classroom to compensate for Student’s auditory processing disorder.

7. Student’s placements over the years have mostly been in inclusion classrooms. Pembroke has provided Student’s special education and related services either within the inclusion classroom or in pullout sessions, depending on the grade and Student’s needs at the time.

Evaluations

8. Student has been evaluated numerous times during his school career. The results consistently have shown Student to be a concrete learner, with verbal skills significantly weaker than his visual/perceptual skills.4

9. In March 2008, when Student was ten years old and in the fourth grade, Pembroke and Parent had Student evaluated by John Fahey, Ph.D., a neuropsychologist employed by the Pilgrim Area Collaborative who also has a private practice. The School and Parent sought further information about Student’s profile. The School noted that Student’s disabilities affected academic progress in all areas of the curriculum despite Student’s strong efforts, and that his progress in reading had been “minimal” despite intervention. (S-10, 21) According to Student’s DRA5 results, Student was reading at a first grade level (DRA level 6) in fourth grade. He had difficulty with both decoding and encoding. Parent was particularly concerned about Student’s progress in reading.

10. After reviewing Student’s records and administering a battery of standardized tests, and parent/teacher questionnaires Dr. Fahey confirmed Student’s prior diagnoses of an expressive/receptive language disorder. Student’s verbal-cognitive skills as measured by the WISC-IV fell mostly in the low average range, with working memory in the “borderline” range. In the verbal domain, Student had specific weaknesses in vocabulary, verbal conceptualization, and use of language for practical reasoning. (S-10)

11. Dr. Fahey concluded that Student also met the criteria for dyslexia, based on phonological awareness deficits and delayed reading skills. (S-10)

12. In contrast to his language weaknesses, Student’s perceptual skills were average, as were his math skills.

13. Dr. Fahey made the following recommendations, in light of the “severity of [Student’s] language disorder, as well as his school’s observation that language skills affect all areas of academic development:”

· An increase of speech/language services from one to three hours per week;

· Provision of specialized remedial instruction in reading, spelling, and writing.

· Provision of a tutorial to build phonological awareness using a direct, sequential, multi-sensory program such as Lindamood-Bell, Orton-Gillingham or Wilson. Tutors should have appropriate credentials to teach the methodology used.

· Use of simplified oral language to provide instructions or convey information;

· Provision of specific instruction on how to do assignments.

· Scheduling of updated speech/language, educational and OT evaluations. (S-10).

14. In April 2008, following Dr. Fahey’s evaluation, the TEAM convened for Student’s annual review. The resulting IEP, covering the period from April 16, 2008 to April 15, 2009 called for modified curriculum and expectations in the general classroom, along with various accommodations. Grid B services consisted of 2×60 minutes per week of special education assistance in science and social studies. Grid C services included 3×30 minutes per week of speech and language therapy (reflecting Dr. Fahey’s recommendation), 3×60 minutes per week of reading, 5×30 minutes per week in reading and written language as well as in academic support, as well as 5×60 minutes in reading/written language. The IEP also provided for an extended school year to prevent regression.

15. The annual IEP goal for reading was for Student to reach Level 12 of the DRA, with 95% accuracy. The IEP contained no specific provision for tutorials or for use of specific methodologies in reading as recommended by Dr. Fahey.

16. Parent accepted this IEP in July 2008.

17. In September and October 2008, when Student was beginning fifth grade, Pembroke conducted a three year re-evaluation consisting of a psychological and educational assessment. The psychological evaluation simply summarized and confirmed Student’s profile, based on a review of prior assessments (including Dr. Fahey’s report), administration of selected subtests of the WISC-IV and NEPPSY, and conducting a brief classroom observation. The psychologist recommended classroom accommodations such as preferential seating, frequent checks with Student to ensure retention and comprehension, highlighting key words in math word problems, giving clear, concise directions and having Student repeat them back, modified content for social studies and science, and provision of study guides for tests. (S-7)

18. The educational assessment was more comprehensive, and included the Reading and Written Language Composites of the WIAT-II, the Gray Oral Reading Test (GORT-4), the Comprehensive Test of Phonological Processing (CTOPP), and the KeyMath-3 Diagnostic Assessment. (S-8)

19. The WIAT-II yielded a Reading Composite Score in the “Extremely Low” range and a Written Language Composite Score in the “Borderline” range. On the subtests within the Reading Composite, Student scored “Extremely Low” in Word Reading, Reading Comprehension, Pseudoword Decoding, and Spelling, and “Low Average” in Written Expression. For the Reading Comprehension subtest, Student was unable to answer questions based on passage at his grade level (grade 5); his “Extremely Low” score was based on a second grade level version of the test. (S-8)

20. Student’s Oral Reading Quotient as measured by the GORT-4 was in the “Very Poor” range (first percentile). The scores in each subtest—Accuracy, Fluency, and Comprehension—were “Very Poor.” (S-8)

21. On the CTOPP, composite scores indicated that of the five skill areas tested, Student performed in the “Average” range in three (phonological awareness, alternate phonological awareness and alternate Rapid Naming), Below Average in Phonological Memory and Poor in Rapid Naming Composites. Pembroke’s evaluator stated that the pattern of Student’s weaknesses on the CTOPP were associated with decoding and fluency.

22. In contrast to his performance on measures of language, Student scored in the “Average” range on the KeyMath-3, both in his composite score and in each subtest. His composite score corresponded to the 34 th percentile.

23. Based on test results, the educational assessment report contained the following recommendations:

· Systematic, multi-sensory phonics instruction for reading and spelling;

· Sight word instruction;

· Frequent, consistent review of phonetic concepts and sight words;

· Encouraging Student to orally re-read and proofread written work;

· Brainstorming and teacher prompting to help Student formulate his ideas before writing;

· Direct instruction in proofreading, provision of editing checklists

· Provision of graphic organizers

· Provision of consistent reading fluency practice, including strategies for determining unfamiliar words.

24. In addition to testing, the educational assessment included a review of Student’s report cards and teacher reports. For the third and fourth quarters of fourth grade Student earned grades of “C’ in Reading, Language Arts, Composition, Math, Science and Social Studies. These grades were based on a “modified performance curriculum.” (S-9) Student’s MCAS scores for 2007 (spring of third grade) were “Progressing” for English Language Arts (based on the MCAS-Alt, alternative assessment) and “Needs Improvement.” In the spring of fourth grade (2008), Student apparently had alternative assessments for both ELA and math, and received a score of “progressing” in each one. (S-9)

25. Pursuant to the re-evaluation, Pembroke issued an IEP covering the period October 29, 2008 to October 28, 2009. The Student Strengths and Key Evaluation Results Summary described Student as a “concrete, visual learner,” with a communication disability and specific learning disability in reading, which affect his academic progress in “all areas of the curriculum despite his strong efforts.” The Summary further noted that Student’s (undated) DRA level was 10, which was higher than the prior year’s score of 6, but still at a first grade level. Student had “significant struggles in decoding and encoding” and was able to identify 71% of the words on a Dolch sight word list. (S-5)

26. In PLEP A, the IEP noted Student’s difficulty following directions and understanding verbally presented information, effectively expressing his thoughts, struggles with word-finding and low reading and writing levels, which prevented him from independently accessing the Grade 5 curriculum for ELA, math, science and social studies. (S-6)

27. PLEP A listed many of the same accommodations that had been listed in his prior IEP, with the addition of “Assistive Technology –to allow access to text through computer read materials.” Specially designed instruction included a “systematic , multi-sensory phonics and sight word reading program,” as well as reduction in the information he was required to master in math, science and social studies. Methodology included high interest/low vocabulary texts, “alternative systematic multi-sensory phonics instruction,” small group reading/writing instruction, hands on math, and modified content/elimination of extraneous detail in math, science and social studies. Performance was to be graded on a modified fifth grade curriculum in science, social studies and math and an “alternative curriculum” in reading, spelling and writing.” (S-5)

28. PLEP B addressed Student’s auditory processing disorder, and listed various accommodations that were similar to those provided previously (multisensory approach, extra time to respond, frequent checks of comprehension, FM device). For specially designed instruction, the IEP listed “individualized language services to teach fundamental listening and sound awareness skills.” (S-5)

29. The IEP for 2008-2009 had goals in speech/language, reading, math and written language. The speech/language goal noted that Student could organize oral expression, paraphrase, retell stories, etc. about 80% of the time, with moderate cueing. His expressive language was “simplistic,” but he could expand it with scaffolding. He had mild weaknesses in ability to formulate sentences given a target word and cues, and severe weakness in his ability to recall and repeat sentences verbatim and to recall and follow instructions. The annual goal was to improve language skills, with improvement assessed with improved listening, awareness, and sentence formulation skills.

30. The annual reading goal was for Student to progress from an instructional level of DRA Level 10 (corresponding to first grade) to DRA Level 18 for oral reading fluency and comprehension. The math goal was, in sum, to improve problem-solving skills. The annual written language goal was to compose a 2 paragraph essay at a “proficient” level using a grade level rubric. (S-5)

31. The IEP service delivery grid provided for 4×30 minutes of special education support in the general classroom for science/social studies. Additionally Grid C services were speech/language therapy: 3×30 minutes/week; Reading/written language: 5×60 minutes/week; “academic support:” 5×30 minutes per week, math, 5×60 minutes/week and an additional “reading” service, 3×60 minutes per week.

32. The IEP provided for summer services, accommodations for the math MCAS, and alternate assessments for ELA, Science/Technology and History/Social Studies. (S-5)

33. Pembroke issued the IEP on November 13, 2008; Parents had accepted the IEP and rejected the placement by November 24, 2008.

34. Pembroke issued progress reports in December 2008, March 2009 and June 2009. The December report indicated that Student’s progress in speech/language was on target. In reading, Student’s sight word vocabulary was “increasing steadily,” as was his ability to read short vowel words with consonant blends and digraphs and answer literal comprehension questions in complete sentences (90% accuracy). The progress report did not state a current DRA level or other test score. (S-19)

35. The report for March 2009 stated that Student was progressing towards his speech/language goals. In Reading, Student was reading independently at DRA Level 14 for oral fluency and comprehension as of January 2009. Comprehension was at the same level as in December 2008, as was his ability to read short vowel words. Student’s reading rate of an independent level passage was 70 words per minute. In writing, Student was able to write a five-sentence paragraph with topic sentence, supporting details, and conclusion, edit his work, all with 80% accuracy, presumably with the help of a graphic organizer (S-18)

36. The final fifth grade progress report, issued in June 2009, indicated that Student was continuing to progress in his language development, having finished the first level of a two-level program. In reading, Student had reached an independent DRA level of 20, which corresponds to second grade. Comprehension and reading of short vowel words was unchanged (at least as reported) from December 2008. Student’s oral reading rate for an independent level passage was 56 words per minute. (S-17)

37. In August 2009, between fifth and sixth grade, Parent and Pembroke had Dr. Fahey conduct a follow-up evaluation. Dr. Fahey administered the Gort-4, Form B, along with selected subtests from the following: Woodcock-Johnson Tests of Achievement—Third Edition (WJ-III), NEPSY-III, WISC-IV. (P-26, S-14) )

38. Dr. Fahey’s neuropsychological screening, conducted with subtests of the WISC-IV and NEPSY-II, indicated that Student’s working memory skills and phonological processing skills continued to fall well below age expectations. (P-27)

39. With respect to reading performance, Dr. Fahey concluded that Student has dyslexia “rooted in his poor phonological processing which in turn is embedded in a broader language disorder.” (S-27). On the WJ-III, Student scored in the 2 nd percentile (“Well below Average”) on Letter-Word Identification and Word Attack, and the 17 th percentile (“Low Average”) in Reading Fluency. On the GORT-4, Student scored below the first percentile on rate, accuracy and fluency (“Well Below Average”), and the 9 th percentile (“Below Average”) in Comprehension. (P-27).

40. Dr. Fahey estimated that Student was reading at a second grade level, despite his impending sixth grade placement and “areas of cognitive skill that fall within the average range.” He commented that Student “struggles to perceive the internal sound structure of words, in is likely inefficient in retrieving important phonological information. (P-26)

41. Dr. Fahey reiterated the specific recommendations he had made in 2008 for specialized instruction using Orton-Gillingham, Wilson, or a similar program. He further recommended placement in a substantially separate language-based classroom “specifically designed to meet the needs of students with language disorders and dyslexia.” Language-based instruction “refers to an environment in which the students are immersed and surrounded with language training in a conscious and deliberate manner, rather than just providing students with isolated “language training” activities.” (P-27)

42. The report further listed several features of an appropriate language based class, including teacher-directed instruction in a question-answer format that elicits active student participation and ensures comprehension; peers who are similar to Student both intellectually and in their rate of processing; highly structured, organized presentation of information using both oral and visual methods; daily review of all lessons from the previous day with integration of new material; spriraling back to previously learned material for review; and both direct and consultation services from a speech/language pathologist. (P-27)

43. On October 16, 2009, the TEAM convened to consider Dr. Fahey’s second report and to conduct an annual review.(Student already had begun sixth grade). The resulting IEP, issued on that day, stated: “[Student] will be provided with a specialized rules-based reading/phonics program. He will be given frequent reading fluency instruction.” The reading goal was for Student to be able to complete the DRA at level 24 for oral reading fluency and comprehension. His goal for ELA was to increase the complexity of his written output. (S-4)

44. The service delivery grid provided for consultation between regular and special education providers as well as the speech pathologist (Grid A) and 5×60 minutes per week, each, for academic and mathematics support within the regular classroom (Grid B). Grid C listed 3×30 minutes per week of speech/language therapy and 5×90 minutes per week in a substantially separate class for ELA. (S-4)

45. Accommodations listed in the IEP were essentially the same as in prior years, as was the reduction of academic demands in science/social studies, the provision of summer services, and accommodations for MCAS (although it appears that Student would no longer be taking the MCAS-Alt. for language arts.) (S-4)

46. On or about the date of the TEAM meeting, Parent informed Pembroke, in writing, that she would reject the IEP and/or placement and wanted Pembroke to place Student in a private day placement. (S-12)

47. Pembroke refused Parent’s request in a letter dated October 16, 2009 written by Laurie Casna, Pembroke’s Director of Special Education. As reasons for Pembroke’s refusal, Ms. Casna’s letter stated that “[t]he district is thrilled with the documented data based progress [Student] is making as noted in the TEAM meeting and his access to the general education curriculum in the least restrictive environment, with specialized support…” Ms. Casna’s letter cited to statements from staff made at the TEAM meeting regarding Student’s seriousness about school, interest, participation, and A average in math. Additionally, the letter stated the District’s view that the District already was implementing Dr. Fahey’s recommendations, and that the IEP incorporated those recommendations. (S-12)

48. On October 20, 2009, Parent filed the instant appeal, and on November 4, 2009, Parent rejected the placement stated in the IEP.

49. Later in November 2009, Parent had Student seen by Dr. Elizabeth Caronna, M.D., a Developmental/Behavioral pediatrician who had seen Student several times over the years. In a letter dated November 24, 2010, Dr. Caronna relayed Parent’s and Student’s report that Student by now had so many accommodations in his regular education classes that on occasion, Student could use pre-written correct answers to homework questions, and did not even need to do any writing.. Dr. Caronna concurred with Dr. Fahey that Student needed a program in which Orton-Gillingham, Wilson, or similar instruction in reading was provided in a separate classroom, and also practiced throughout the school day.

50. Dr. Caronna’s letter stated that Student “is going to require a higher level of intensity of program in order to make up ground given the increasing gap between his chronological age and his reading level. If such a classroom is not available in the Pembroke Public Schools, I strongly recommend that other classroom settings be considered such as [collaborative, public or private programs specially designed for children with dyslexia]. (P-24) In her testimony, Dr. Caronna reiterated that Student needed an intensive program for children with dyslexia, and noted that she had not seen any mention of a specific reading program in Student’s IEP. Dr. Caronna acknowledged that she had not attended a TEAM meeting, observed Student outside of the office, or spoken with the SPED director for Pembroke about Student’s needs and whether Dr. Fahey’s recommendations were incorporated into the latest IEP. (Caronna)

51. On December 2, 2009, the parties entered mediation in an attempt to settle the above-entitled dispute. The resulting Agreement provided that Pembroke would retain Dr. Fahey to perform an on-site observation of Student participating in his school program, in order to determine whether that program incorporated Dr. Fahey’s recommendations and met Student’s needs. (S-3).

52. Dr. Fahey was not able to do such an observation, so the School arranged to have it done by Dr. Frank Colosi, a now-retired school psychologist from Pembroke.6 On two occasions, Dr. Colosi observed Student in his language-based classroom, which comprised Student and one other child, as well as a teacher, Lara Taylor. Based on Dr. Colosi’s observation of the lesson he concluded that the classroom met Dr. Fahey’s specifications for intensive, teacher-led, interactive, explicit rules-based instruction, and that Student seemed to be participating and benefiting from that instruction. (P-20, Colosi)

53. Dr. Colosi recommended revising Student’s IEP to more specifically identify and define the types and amounts of reading services within the service delivery grid, and to state more explicitly the type of class Student was attending (e.g., language-based). (Colosi, P-20)

Program Proposed by the School

54. The School’s placement for Student’s sixth grade year, which he attended despite the current dispute, is described in Paragraphs 43 through 45 above. School witnesses have stated that under this IEP, Pembroke provided Student with one and three-quarters hours per day of substantially separate, language based programming, which included sequential, rules based reading instruction. (Casna, Taylor)

55. Student’s regular and special education teachers testified that during 2009-2010, Student was engaged and invested in both his sub-separate and mainstream instruction, that he understood the content of his science and social studies classes, and that the curriculum was modified only for social studies. Further, Student was comfortable in both special and regular education settings, and was liked by adults and peers alike. (McDonald, Taylor, Durgin)

56. A progress report dated November 24, 2009 stated that in reading, Student’s DRA score had progressed to an independent Level 24 for comprehension and an instructional level 24 for fluency, which represents a beginning third grade reading level. The report states that Student also has done well with weekly Wilson spelling and vocabulary lessons, and had made improvements in his reading rate (57 wpm at the independent level), and increased his knowledge of sight words from 82% to 95% of the Dolch sight words between October and November 2009. (P-13)

57. School witnesses testified that the current IEP would be well-suited to Student’s first year of middle school (2010 – 2011). According to the elementary school TEAM chair (Jessica Duncanson) and the Director of Special Education (Laurie Casna), there were a number of options potentially available to Student at the Middle School, including a substantially separate language-based program that included a Wilson reading class and a consultant from Landmark School. Students can spend more or less time in the substantially separate program, depending on their needs, and would have assistance transitioning between the separate program and the mainstream. (Casna, Duncanson)

58. The School provided no witnesses from the Middle School program and no literature explaining it.

Program Requested by the Parent

59. Parent seeks funding to place Student at the Beal Street Academy, which is a private, Chapter 766 approved day school in Hingham, MA which accepted Student in March 2010. (P-25)

60. On November 4, 2010, Richard McManus, the founder and executive director of the school, conducted a brief, informal assessment of Student’s skills. On this assessment, Student could not read five out of seven second grade level sight words, and showed no ability to use phonics skills to decode them. His handwriting was inefficient and labored because his pencil grip was too tight. He did well on tasks of naming letters and numbers and solving basic math problems. In a letter dated November 12, 2009, Mr. McManus stated that Student needed to spend at least two hours per day in one-to-one reading instruction with an effective phonics program, while, at the same time, participating in the Curriculum Frameworks. Such intense instruction was necessary, he stated, because of wide gaps in Student’s reading skills and those of his peers. (S-26)

61. Staff from the School feel that Beal Street would be far too restrictive for Student, who, they feel, is functioning well in public school. Dr. Colosi has visited the school and believes that the peer grouping would be lower-functioning that Student and, therefore, inappropriate. (Colosi) No witnesses from Beal Street testified at the hearing.

FINDINGS AND CONCLUSIONS

After reviewing the testimony and documents on the record, I conclude that Parent has not proved that the most recent IEP issued by Pembroke is inappropriate, because and only because Parents have been unable to prove that the IEP did not incorporate the elements recommended by Dr. Fahey, and because they have been unable to prove that Student did not make adequate progress under this IEP. The School prevails, but only by default.

The only genuine disagreement in this case is whether the School’s most recent IEP is reasonably calculated to enable Student to make effective progress. There is absolutely no dispute that the Student has a severe language-based learning disability that impairs his performance across the curriculum. The evidence is overwhelming that his progress in reading, up to the beginning of the 2009-2010 school year has been abysmal by any objective measure. While the parties may disagree on the details, the Parent’s assertion that Student needs the intensive, sequential, rule-based reading instruction in reading recommended by Dr. Fahey—on two separate occasions– has not been contested by the School.

The reason why the Parents cannot meet their burden of showing the inappropriateness of the IEP at issue is that the chief criterion for evaluating the IEP is Student’s progress, and there is little evidence on the record of such progress or lack thereof. This lack of evidence renders the Parent unable to effectively challenge the IEP; therefore, the School must prevail.

The current IEP offers, for the first time, services that may reflect the recommendations made by Dr. Fahey, and that may appropriately address the Student’s needs in the area of reading. While witnesses testified that the services appeared to be appropriate, the record contained only a single progress report issued by the School during 2009-2010. Further, the only measure on the record of Student’s progress was the score from the ubiquitous DRA, which is not a norm-referenced, standardized test, and does not purport to analyze or diagnose the reading difficulties of a child with a language-based learning disability. The record was simply too thin to determine whether Student has made meaningful progress in his areas of greatest weakness pursuant to the most recent IEP; therefore, absent evidence that he did not make such progress, the School must prevail. Because the School has prevailed, I need not reach the issue of whether the Parent’s proposed placement was appropriate.

This result highlights, rather than eliminates the need to track Student’s progress using valid, reliable measures, and to change his services and/or placement if his progress continues to stagnate.

ORDER

No later than fourteen calendar days after the beginning of the 2010-2011 school year, Pembroke shall arrange for Student to have a comprehensive educational evaluation, including a complete evaluation of his reading and literacy skills, in order to determine Student’s then-current levels and needs, and to determine if Student has progressed since the last formal assessment was conducted. The evaluation shall be conducted by an appropriately-credentialed professional(s) with knowledge and expertise in the area of language-based learning disabilities.

The TEAM shall convene after the evaluations are complete to develop a new or amended IEP that incorporates the evaluation results and recommendations. The School shall conduct follow-up assessments of Student’s educational status at the time of the mid-year and year-end progress reports during 2010-2111 so that the TEAM may adjust the Student’s services as needed.

:

By the Hearing Officer:

____________________ _____________________________

Sara Berman

Date: July 30, 2010


1

Parent also alleged that Student had been removed from a special education setting for math without parental consent, but this claim was resolved prior to hearing.


2

The length of time between the two hearing dates occurred to accommodate the schedule of a witness.


3

The actual name of the elementary school is omitted to reduce the risk of Student being personally identifiable in this publicly available decision.


4

Student’s WISC-IV scores consistently have fallen in the “low average” range for verbal skills, and the “average” range for perceptual skills.


5

Diagnostic Reading Inventory. The DRA is a classroom assessment tool used by regular and special education teachers to track all students’ progress in acquiring literacy. Teachers also use the DRA to select texts at the appropriate level of difficulty for students. The DRA does not purport to diagnose learning disabilities.


6

Mother objected to the School’s use of Dr. Colosi, because she felt that because of his employment with the District, he would not be independent.


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