Pioneer Valley Regional School District – BSEA #04-2566



<br /> Pioneer Valley Regional School District – BSEA #04-2566<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re: Pioneer Valley Regional School District BSEA # 04-2566

DECISION

This decision is issued 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.

The Hearing Request was filed by Parent on March 18, 2004. After a brief Pre-Hearing Conference, an evidentiary Hearing was held on April 7, 2004 and May 7, 2004 in Worcester, MA before William Crane, Hearing Officer. Those present for all or part of the Hearing were:

Student’s Mother

Student’s Step-Father

Carla Bernier Speech Language Pathologist

Linda Lafontaine Speech Language Pathologist, Curtis Blake School

David Keech Teacher, Pioneer Valley RSD

Christine Maguire Special Education Teacher, Pioneer Valley RSD

Margaret Seaman Speech Language Pathologist, Pioneer Valley RSD

Buffy Dewey Advocate for Parent

Marilyn Schmidt Attorney for Parent

Gordon Parker Administrator of Special Education, Pioneer Valley RSD

Mother was represented by Attorney Schmidt. Pioneer Valley Regional School District (Pioneer Valley) was represented by Dr. Parker, the School District’s Administrator of Special Education.

The official record of the hearing consists of documents submitted by the Mother and marked as exhibits P-1, P-3, P-4 and P-5; documents submitted by Pioneer Valley and marked as exhibits S-1 through S- 46; and two days of recorded oral testimony and argument. As agreed by the parties, closing arguments were made orally at the end of the May 7, 2004 Hearing day, and the record closed on that date.

A. ISSUES

1. The issue to be first considered is whether the individual education program (IEP) for the period 10/24/03 to 10/24/041 proposed for Student is reasonably calculated to provide Student with a free appropriate public education (FAPE) in the least restrictive environment.

2. If not, can additions or other modifications be made to the IEP in order to satisfy this standard through continued placement in the public school setting?

3. If not, would placement at Parent’s proposed placement (Curtis Blake School) satisfy this standard?

B. PROFILE AND IEPS

Student is an eleven-year-old child who lives with his mother and step-father in Leyden, Massachusetts, which is within the Pioneer Valley Regional School District. Student has demonstrated difficulties with learning including a language-based learning disability, a specific weakness in working memory, deficits with executive functioning, and attention deficit hyperactivity disability (ADHD). Testimony of Bernier, Parent, Maguire, Keech, Seaman, Lafontaine; exhibit S-26, page 139 of School District’s exhibit book.

Intelligence testing of Student has reflected cognitive weaknesses, particularly with respect to working memory (2 nd percentile). Exhibits P-3, P-4, S-9 (page 53 of the School District’s exhibit book), S-29 (page 158 of School District’s exhibit book), S-30 (page 172 of School District’s exhibit book).

Student attends the 5 th grade at the Pearl Rhodes Elementary School, which is part of the Pioneer Valley public school system. Student’s individual education program (IEP) for this school year and last year are similar, placing Student in a mainstream, regular education classroom with an aide (45 minutes each day), with pull-out services for speech language services (45 minutes each week from Ms. Seaman and two hours each week from Ms. Bernier), special education services (45 minutes each day from Ms. Maguire), and counseling (30 minutes each week). The IEPs also call for additional speech language services (45 minutes per week) provided within the classroom. Exhibits S-23, S-26.

Mother has accepted the most recent IEP and placement (which runs from 10/24/03 to 10/24/04), but in a letter from her attorney, made clear that Mother is only accepting the IEP and placement for the period 10/24/03 through 8/24/04 and has rejected the IEP and placement for the period 8/25/04 through 10/24/04. This reflects Mother’s desire to accept the proposed services and placement for the current school year (2003-2004) but to place her son at the Curtis Blake School for the 2004-2005 school year. Exhibit S-46.

C. FACTS

· Student’s mother (Mother) testified that she spends several hours (usually three) each night helping her son (Student) with his homework. She explained that even if she is not actively helping her son with his work, she remains with him in order to ensure that he stays on task. She explained that her son wants to do his homework but does not know how, and that it is often difficult to get him started on his homework.

Mother testified that she has tried to have her son read books at the 2 nd and 3 rd grade level, and he has found these books very difficult – he has to stop to sound out individual words and needs help to read them. She explained that she reads aloud to her son his reading assignments from school.

Mother testified that during the fall of Student’s 4 th grade (2002-2003 school year), she observed her son in school during part of his math class. She noticed that her son works in a cubicle in the classroom, with an aide to re-direct him and focus him. She believes that her son is unhappy to be in the cubicle. She explained that her son’s IEP for the 4 th grade is substantially the same as his IEP for the current 5 th grade (2003-2004 school year).

Mother testified that during 4 th grade, her son told her that he “hates” school, but during 5 th grade he has not said this perhaps because his educational program has been modified for him this year in 5 th grade. She is concerned that her son may “give up” on school soon if his educational needs are not met appropriately. She wants her son to attend college.

Mother testified that she visited and observed the Curtis Blake School, to which her son has been accepted. She noted that this school has a speech language pathologist in the classroom and that it provides a language-based learning environment. She explained that she observed a 5 th grade class of six children and three adults, that all of the children participated and that some of the children in the classroom had attention deficits. She believes that this school would probably help her son. She would like her son to attend the Curtis Blake School starting in the fall of 2004.

Mother testified that Pioneer Valley has made it clear that it wants to continue to meet with her to try to agree on a placement for next fall, and that Dr. Parker (Pioneer Valley’s Director of Special Education) offered to listen to a presentation by the Curtis Blake School. She also noted that Pioneer Valley has requested permission to do additional testing of her son (including cognitive testing as reflected in exhibit S-36, pages 195-196 of School District’s exhibit book), but she has declined permission because Student resents being pulled out of his classes and so Mother does not want him pulled out more for additional testing.

· Carla Bernier testified that she is currently and has been for the past twenty years a speech language pathologist. Dr. Parker stipulated that Ms. Bernier has significant expertise as a speech language pathologist. Her resume indicates that she received her master of arts in speech and language pathology in 1985, and has worked as a speech language pathologist in a variety of settings since then. See exhibit S-14, page 72 of the School District’s exhibit book (resume).

Ms. Bernier testified that she was first contacted by Mother approximately two and a half years ago to provide additional services to Student. She explained that starting in January 2002 she was hired by Pioneer Valley to provide speech language services to Student for one hour per week, her services were increased over the summer of 2002 to ten hours per week for a total of eighty hours that summer, and following the summer of 2002, she has been providing speech language services to Student for two hours per week.

Ms. Bernier testified that she took on the responsibility of providing speech language services to Student because she wanted to teach him to read. She felt that he would be able to learn how to read but that it would be difficult to do so within the classroom because of his disabilities. She continues to believe that Student has the capacity to learn how to read and “to be a success”.

Ms. Bernier testified that she observed Student in school in 4 th grade (2002-2003 school year) and has reviewed his educational records, including evaluation reports from Massachusetts General Hospital. Ms. Bernier explained that because of his distractibility, Student needs re-direction – if someone is with him, Student will be on task; but when Student goes to a regular education classroom, one cannot expect that he would remain on task.

Ms. Bernier testified that Student is not able to express verbally his feelings. She stated that Student would benefit from an opportunity in school to learn social pragmatics so that he would be able to communicate better with his peers and teachers.

Ms. Bernier testified that a comparison of the Weschler Individual Achievement Test – II (WIAT-II) test scores from 12-27-01 and 3-27-03 showed gains in word reading (standard score improved from 77 to 80), reading comprehension (standard score improved from 73 to 84), and spelling (standard score improved from 79 to 83); but oral expression standard scores declined from 97 to 80 – an area of difficulty for Student. Exhibits S-15 (page 77 of School District’s exhibit book), S-25 (page 136 of School District’s exhibit book).

Ms. Bernier testified that the Woodcock Reading Mastery Test (WRMT) test scores from the Massachusetts General Hospital speech language evaluation’s standardized test scores on 8-20-02 as compared to the standardized test scores on 11-18-03 indicate that word identification and word attack stayed the same at 85 and 88, respectively, and that passage comprehension improved from 83 to 86. Exhibits P-1, P-4, S-18 (page 91 of School District’s exhibit book), S-29 (page 163 of School District’s exhibit book). She agreed, upon cross-examination, that these scores reflect a year’s growth in a year’s time. She further agreed on cross examination that the WRMT scores and the WIAT-II scores on 3-27-03 are at a commensurate level with the cognitive test scores reflected in the WISC-4 testing on 11-19-03 as reflected in the Massachusetts General Hospital neuropsychological evaluation report (exhibit S-30, page 172 of School District’s exhibit book) if one were to disregard Student’s working memory test score which was relatively low.

Ms. Bernier testified that Student’s standardized test score on listening comprehension is 10 – that is, exactly average. She believes that because this test score indicates that Student is able to listen and respond as a typical, average student, he has the capacity to learn and is not developmentally delayed.

Ms. Bernier testified that in those areas where Student is testing in the average range (for example, receptive language), it is “not bad” for Student’s standardized scores to stay the same from one test to another, indicating that Student continues to be at the average level as compared to other students his age.

Ms. Bernier testified that Student’s reading difficulties are reflected in the Gray Oral Reading Test 4 (GORT-4) test scores (done as part of the 11-18-03 speech language evaluation at MGH). The GORT-4 subtests for rate, accuracy and fluency are all at or below the 1 st percentile when compared to other students his age. Exhibits P-4, S-29, page 163 of School District’s exhibit book. She agreed upon cross-examination that similarly the WIAT-II test score (done as part of the 11-19-03 neuropsychological evaluation at MGH) indicates that Student is performing at the 1 st percentile on the word reading subtest; when this was reviewed at a March 5, 2004 IEP Team meeting, everyone at the meeting (including Ms. Bernier) agreed that this score underestimated Student’s abilities. Exhibits P-3, S-30, page 173 of School District’s exhibit book.

Ms. Bernier testified that she believes she has been successful with Student with respect to the goals which she has set regarding his reading. She explained that the entire first year she worked with Student exclusively on his pseudoword decoding skills; and that on a WIAT-II subtest measuring these skills his standard score was 97 on 3-27-03, as compared to a standard score on this subtest of 75 on 12-27-01, reflecting impressive gains in this area. She noted that Student was “closing the gap” in this area – that is, improving from the 5 th percentile on 12-27-01 to the 42 nd percentile on 3-27-03 as compared to other students his age. Exhibits S-15 (page 77 of the School District’s exhibit book), S-25 (page 136 of the School District’s exhibit book).

Ms. Bernier testified that since 3-27-03, she has been working with Student on multisyllable and decoding, has introduced sight words and recently began the Wilson reading program. She said that she has also been working on writing with Student.

In general, Ms. Bernier noted that she has been successful in teaching Student many pre-requisite skills for reading. She believes that she has made demonstrable progress in the areas that she has worked on with Student, and that he has a lot of the pieces necessary for reading, with the result that he has the mechanics. However, she explained that Student is not able to put together the mechanics of reading in a functional way, with the result that he puts all of his energy into figuring out the words and has little, if any, reading fluidity or fluency.

Ms. Bernier testified that Student cannot read at the 5 th grade level – her “subjective guess” is that he is currently reading at the 2 nd grade level. Ms. Bernier concluded that in her opinion Student has not made sufficient language and reading progress based on the fact that he is not reading at or near grade level.

Ms. Bernier testified that if she were to work with Student as she has done in the past, she would be able to continue to help him but it would not be what he needs. Ms. Bernier explained that the two hours per week that she works with Student is sufficient to learn a skill, but the skill must then be practiced “all the time” in school. Ms. Bernier testified that she is in contact during Team meetings with Ms. Seaman (Pioneer Valley’s speech language pathologist who works with Student), and that she and Ms. Seaman “pretty much” know what each other is doing and that no additional communication with her would address the problem. However, she explained that she is not in the classroom with Student and expressed concern that Student’s aide is not trained, and she did not know whether Pioneer Valley special education staff have trained other teachers to carry over to the classroom what has been taught in isolation.

Ms. Bernier testified that Student needs a lot of work on verbal expression, and this should occur at his level throughout his school day. She expressed concern that this is not happening in his current educational placement where the students in the classroom have a disparity of abilities and Student is not expected to keep up with the quality of work of the other students. She also noted that it is very difficult for Student to be in a classroom where he is isolated (in a cubicle) and keep up with what is being presented by the teacher. She further explained that currently the educational material used with Student is not at his level and he never has an opportunity to catch up to the level of the other students. She opined that even with a highly-trained aide at his side, it is not possible for the currently-structured education program to be effective for Student either practically or emotionally.

Ms. Bernier testified that she is concerned that next year (2004-2005) in 6 th grade, Student will not succeed because he cannot keep up with his peers; and in regular education, the teacher cannot adjust the curriculum to his level, with the result that he will tune out and in the future may act out. She also noted that if Student is pulled out of mainstream classes, he misses out on the social aspects of school.

Ms. Bernier concluded that it is the setting and format of Student’s current educational placement that is problematic and that no additional services from Ms. Bernier would correct these deficiencies. She opined that with a continuation of the existing educational program, Student will fall further behind because he cannot gain knowledge from reading and because his language skills may fall further behind his age peers.

Ms. Bernier testified that although she has never visited a language-based classroom, she concurs with the recommendation of the Massachusetts General Hospital evaluators that (1) Student should be placed within a language-based program with small classes with students who have disabilities similar to those of Student, (2) the same language strategies should be used in all of Student’s classes, and (3) the pace should be appropriate for Student and the teacher does not proceed to the next step until the entire class is ready to do so. She opined that within this environment, Student would be less frustrated and his focus would be improved. She stressed that, with the appropriate special education services, Student has the capacity to learn how to read and to be a “success”.

Ms. Bernier’s speech and language consult report dated 1/10/02 indicates that Student had been referred to her to determine the appropriateness of an intensive phonemic awareness training to facilitate reading development. Ms. Bernier concluded after working with Student four times, that he is “learning quickly, and in fact, I am amazed at his progress in such a short period of time.” She concluded that in light of her testing of Student and the trial period of phonemic awareness training, that Student is an “excellent” candidate for this program. “He has already realized success in this short period of time, and I believe it will continue to escalate.” Exhibit S-15, pages 75 and 76 of School District’s exhibit book.

Ms. Bernier’s speech and language progress report dated 8/30/02 (for “dates of service”: 12/27/01 to 8/13/02) summarizes: “[Student] continues to make excellent progress in his auditory processing and verbal expression for reading and spelling development. It is recommended that he continue until he has a solid foundation in these very important pre-requisite skills for reading and spelling.” Exhibit S-21, page 114 of School District’s exhibit book.

Ms. Bernier’s speech and language progress report dated 4/10/03 (for “dates of service”: 12/27/01 to 4/10/03) summarizes: “[Student] continues to make excellent progress in his auditory processing and verbal expression for reading and spelling development. He is beginning to read independently. He still has a tendency to plow through words without stopping to see if what he has read makes sense. He needs continued guidance in this area. I have seen changes in [Student’s] self-esteem, and reports from school indicate he is making progress in all areas of academics.” Exhibit S-25, page 134 of School District’s exhibit book.

Ms. Bernier’s report further reflects testing of Student on 3/27/03 with the Wechsler Individual Achievement Test – 2 nd Edition. Student obtained the following composite scores: reading 84, mathematics 86, written language 91 and oral language 82. Exhibit S-25, page 135 of School District’s exhibit book.

Ms. Bernier’s speech and language progress report dated 4/10/03 (for “dates of service”: 12/27/01 to present) summarizes: “[Student] has many of the skills he needs to read. He has difficulty integrating and applying those skills to contextual reading. We will continue to work on applying what he knows how to do at the single word level to contextual reading.” Exhibit S-41, pages 217 and 218 of School District’s exhibit book.

Ms. Bernier’s speech and language progress report dated 1/23/04 (for “dates of service”: 12/27/01 to present) indicates that she has been working with Student on reading in context, and provides his test scores from the Wilson Assessment of Decoding and Encoding. Exhibit S-41, page 208 of School District’s exhibit book.

· Linda Lafontaine testified that she is a speech language pathologist, having received her masters degree in speech language pathology in 1981. She explained that she is licensed and certified as a speech language pathologist.

Ms. Lafontaine testified that she has worked at the Curtis Blake School as a speech language pathologist since 1997 when she was hired as their first speech language pathologist. As other speech language pathologists were hired, she has become the supervising speech language pathologist at Curtis Blake. She noted that she also screens applications for admission to Curtis Blake and provides direct remediation to students at Curtis Blake.

Ms. Lafontaine testified that the curriculum at Curtis Blake (1) is evidence based – that is, the curriculum is developed consistent with the research evidence relevant to how best to teach learning disabled students, (2) is language based – that is, everything is explained consistently and systematically to students using the same kinds of language, (3) is strategy based so that students are taught to internalize the learning strategies, and (4) has systematic, integrated teaching so that all literacy teaching is integrated into all parts of the curriculum throughout the day. She explained, for example, that in every class, the same language, the same approach and the same strategies are used, and are thereby consistently reinforced with each student. She noted that the learning approach for each student includes the Linda Mood Bell program, designed to teach phonemic awareness, and the Benchmark program, a reading by analogy approach that Curtis Blake has modified to work consistently with the Linda Mood Bell program.

Ms. Lafontaine testified that each student every day receives one and a half hours of specific reading instruction, that usually each class has six students and that the small classes allow for individual reading instruction, as well as other intensive, systematic instruction that is individualized to meet the needs of the particular student. She also noted that Curtis Blake is chapter 766-approved by the Massachusetts Department of Education, and that the academic programs at Curtis Blake incorporate the Massachusetts Curriculum Frameworks.

Ms. Lafontaine testified that Curtis Blake accepts students with a diagnosis of a specific learning disability who have average to above average intelligence. With respect to intelligence, she explained that they will consider a student who has an IQ of 80 or above, and that IQ is only one part of the entire profile that is considered.

Ms. Lafontaine testified that in her experience, IQ does not predict whether a student will benefit from reading remediation and can learn to read. She explained that the cause of reading difficulties is based on deficits other than IQ — in particular, poor phonemic awareness and poor rapid naming skills. She noted that after reading remediation has occurred and the student is better able to process language, occasionally the verbal component of his or her IQ will improve.

Ms. Lafontaine testified that she has reviewed the most recent evaluations of Student done at Massachusetts General Hospital (speech language evaluation and neuropsychological evaluation), and understands that Student’s IQ likely falls in the upper 80’s, that he has deficits with his working memory and his processing speed, and that these deficits are indicative of a language-based learning disability. She expressed confidence that Student is an appropriate candidate for Curtis Blake – that he has language difficulties which would be appropriately addressed by specific programs and strategies at Curtis Blake. Ms. Lafontaine opined that Student has not yet internalized learning strategies, that he would benefit from the intensive remediation at Curtis Blake where learning strategies would be integrated into all parts of his day, and that it is not sufficient for him to learn in a typical classroom.

Ms. Lafontaine testified that Curtis Blake would appropriately accommodate Student’s attention deficits through small classes, animated teaching and visual supports. She noted that many students at Curtis Blake have similar attention deficits.

Ms. Lafontaine testified that she has had no communication with anyone at Pioneer Valley and has not received or reviewed Student’s school record.

· David Keech testified that he has been teaching since 1990 when he received his masters degree in education, and that he has been teaching 5 th /6 th grade at Pioneer Valley since 1993. Mr. Keech stated that currently and since September 2003, he has been Student’s teacher at the Rhodes Elementary School. He explained that it is a 5 th /6 th grade classroom, with 13 students, that this year he is teaching a 5 th grade curriculum and next year it will be a 6 th grade curriculum, and that Student would be in his class next school year as a 6 th grader if he continues to attend the Rhodes Elementary School. He noted that there are several students with behavior issues who sometimes distract the class, but that their behavior issues are not significant. He noted that he will likely have students next year with behavior issues as well, and that the behavior issues this year and next year are not dissimilar to what he has worked with in the past.

Mr. Keech testified that Student has an aide assigned to him; the aide arrives at 11:00 AM and stays for the remainder of the day, and she is assigned to Student and one other child in the class. He noted that the aide helps Student by prompting him to respond, to clarify instructions or information for Student, and to help him to stay focused on the task at hand. He also explained that sometimes he will have Student sit in a cubicle in the class (dividers extend about two feet above the desk and serve to reduce distractions) usually with an aide.

Mr. Keech testified that Student is a “very challenged learner” and that ADHD is his biggest challenge. Mr. Keech stated that although he is not trained in special education, he has had a number of special needs children similar to Student in his classes over the years, and he consults regularly (sometimes daily) with the special education teacher in the school who is assigned to work with Student. Mr. Keech explained that he believes he knows how to work with Student although the challenge is to give him the amount of attention that he needs. He stated that it might be useful for Student to have a dedicated aide in the classroom from 11:00 AM on (rather than to share an aide) to help Student stay focused.

Mr. Keech during his testimony reviewed the recommendations contained within the most recent neuropsychological evaluation at Massachusetts General Hospital and noted how he implements specific teaching strategies recommended, including providing explicit instruction in a multi-sensory format, providing visual supports, teaching small amounts of information at a time, providing teaching which is highly structured, providing frequent feedback, and teaching organizational skills. Exhibits P-3, S-30, pages 170 and 171 of School District’s exhibit book. Similarly he testified how he implements some of the recommendations contained within the most recent speech language evaluation at Massachusetts General Hospital. Exhibits P-4, S-29, page 159 of School District’s exhibit book.

However, Mr. Keech testified that he does not conform to all of the recommendations contained within the MGH speech language evaluation. For example, he explained that he is not trained in teaching students with language and learning disabilities, and he does not simplify or otherwise modify for Student the language or instruction that he gives to the class, nor does he modify the content of the material for Student. However, he or the aide seek to make sure that Student understands what is being explained or taught within the classroom, and he modifies the workload for Student. Mr. Keech stated that he does not know if he is using the same methodology that others may be using who are working with Student.

Mr. Keech testified that, in his opinion, Student has this year made meaningful educational progress, given the nature and extent of his learning disabilities. He noted that over the course of the school year, Student has improved his ability to comprehend and to communicate, and he has improved in math. When asked to be more specific, Mr. Keech explained that, for example, Student has improved his communication in writing – although Mr. Keech does not know whether Student is a “better” writer than at the beginning of the school year, Student has become a more confident writer. Mr. Keech noted that in reading, Student has made progress in his level of participation in reading. He explained that at the beginning of the school year, Student could read at the late 2 nd grade or early 3 rd grade level and now can read at the mid-3 rd grade level. He also explained that Student is able to participate in class, providing acceptable answers while in the beginning of the school year, he was reluctant to do so. Mr. Keech also noted an improved self-awareness regarding things which impede his progress such as distractions.

Mr. Keech testified that exhibit S-42 is his statement and that it continues to be an accurate reflection of his opinions relevant to Student.

· Christine Maguire testified that currently and for the past two years, she has been a special education teacher at the Rhodes Elementary School. She noted that she has a total of ten years special education teaching experience, has a masters degree in elementary education, and is certified as a special education teacher. She explained that she has worked with Student this year and last year – currently she sees him every day for usually 45 minutes when she works principally on reading (fluency, phonics, and automaticity).

Ms. Maguire testified that Student’s difficulties with learning include a language learning disability, a specific weakness in working memory, deficits with executive functioning, and ADHD (which she believes to often be his biggest challenge).

Ms. Maguire testified that in her opinion, within the context of his disabilities, Student has made meaningful educational progress this school year. She explained that this progress is anecdotal, rather than reflected in testing. She explained that at the beginning of this school year, Student was reading at the 3 rd grade level, and that he is now reading at the mid-3 rd grade level – she noted that this is “instructional” level of reading (that is, she instructs him with reading at this level). She stated that Student’s independent reading level is upper 2 nd grade or lower 3 rd grade level. She also explained that Student has shown progress in terms of the kinds of mistakes he was making at the beginning of the school year as compared to now when the mistakes “make more sense”. She stated that she cannot account for why Student has not made more progress in reading.

Ms. Maguire testified that Student made several months of progress in reading during the last school year (4 th grade), finishing the year at the end of the 2 nd grade level or beginning of the 3 rd grade level.

Ms. Maguire testified that there is no consistent carry-over between what Ms. Bernier is working on and what is being taught within the classroom.

· Margaret Seaman testified that currently and for the past four years she has been a speech language pathologist, receiving her masters degree in 2000. She noted that she is licensed and certified as a speech language pathologist.

Ms. Seaman testified that she has worked with Student for the past three years, currently for 45 minutes twice per week. She noted Student’s difficulties with language and memory, his ADHD and his reported cognitive limitations. She explained that she has been working with Student regarding word retrieval, receptive and expressive language, phonemic awareness and written expression.

Ms. Seaman testified that she has only a limited understanding of Student’s academic skills and is not able to quantify his educational progress. However, in her opinion, Student makes progress every day and will continue to make progress if she continues to work with him. She noted, however, that the progress is slow, and that at times, Student appears to be making significant progress and at other times he seems to have forgotten (temporarily) what he has learned.

Ms. Seaman testified that except during IEP Team meetings, there has been no communication between her and Ms. Bernier this school year.

· Gordon Parker testified that he is currently employed by Pioneer Valley as its special education administrator. He noted that he has been a special education administrator for the past seven years. Dr. Parker explained that he holds masters and doctorate degrees in counseling and school psychology (an EdD degree), is a certified school psychologist and a licensed psychologist, and has practiced as a school psychologist and as a psychologist in private practice for nearly twenty-five years.

Dr. Parker testified that Student currently attends the Rhodes Elementary School; approximately fifty children attend this school.

In his testimony, Dr. Parker acknowledged that Student is substantially behind his age-level peers in reading and writing. He further acknowledged that because of Student’s disabilities, he does not necessarily expect Student to make a year’s growth in a year’s time. He also concurred that Student could benefit from additional individual attention (for example, on the current IEP, the 45 minutes per day of assistance from an aide could be increased). However, for reasons explained in more detail below, Dr. Parker opined that Student is performing academically up to his potential. He also explained that Student’s education program allows him to generalize to the classroom what he has learned in pull-out sessions because of the consultation provided to the classroom teacher by Student’s speech language therapist and special education teacher.

When asked what Student’s potential was for learning how to read, Dr. Parker made clear that he did not have the requisite expertise to answer this question authoritatively (he explained that he is not a reading teacher and has never taught reading), but that he believes that Student has the capacity to learn how to read at the middle school level by the time he leaves high school. He further stated that if anyone (whose professional opinion he respects) could explain to him that if Student attended Curtis Blake, Student would catch up to within one grade below his peers by the end of 8 th grade, he would be willing to place Student at Curtis Blake even if the special education laws do not require such a placement.

Dr. Parker testified regarding the neuropsychological evaluation of 11-19-03 by Dr. Morgan of the Massachusetts General Hospital. Dr. Parker noted that Dr. Morgan administered the Wechsler Intelligence Scale for Children – 4 th Edition (WISC-4), with composite test scores as follows:

Composite score standard score percentile

Verbal comprehension 89 23 rd

Perceptual reasoning 88 21 st

Working memory 68 2 nd

Processing speed 85 16 th

Exhibits P-3, S-30 (page 172).

Dr. Parker noted that Dr. Morgan’s report concluded that Student’s overall cognitive abilities, as assessed by the WISC-4, are “generally in the low average range.” Dr. Morgan goes on to explain: “Due to the significant differences between composite scores, Full Scale IQ is not considered to be a valid indicator of [Student’s] overall cognitive ability.” Dr. Parker explained that what Dr. Morgan’s testing appears to indicate is that Student’s working memory test score of 68 (see above) is a significant problem for him (making it not possible to determine accurately his overall IQ) but that the remaining three composite test scores which are all in the low average range may provide a reliable indication of Student’s abilities.

Dr. Parker also noted the following sentence in Dr. Morgan’s report: “The effects of [Student’s] learning disabilities can be expected to constrain his ability to work as effectively in the academic setting as his intellectual ability would suggest.” Exhibit P-3, S-30 (page 170 of School District’s exhibit book). Dr. Parker opined that Dr. Morgan is explaining that Student’s learning disability impacts Student’s ability to learn over and above the limitations imposed on Student as a result of his cognitive limitations.

Dr. Parker explained that the results from Ms. Bernier’s testing of Student on 3-27-03 using the Wechsler Individual Achievement Test – Second Edition (WIAT-II) (exhibit S-25, page 135 of School District’s exhibit book) may be compared with the results from the Wechsler Intelligence Scale Test (WISC) (administered both before and after the WIAT II) since the WIAT-II and the WISC use the same metric. He explained that in each test, a standard score of 100 indicates that Student tested at the 50 th percentile as compared to similarly aged children; one standard deviation below the mean would be a standard score of 85 or the 16 th percentile as compared to similarly aged children.

Dr. Parker testified that three of the four composite test scores from the WIAT-II (reading, math and oral language) fell in the low average range, while the fourth composite score (written language) fell in the average range. Dr. Parker opined that Student’s WIAT-II scores are “good” in relationship to the earlier and later cognitive test results from the WISC.

Dr. Parker testified regarding the test scores within Ms. Crawford’s speech language evaluations regarding receptive and expressive vocabulary, and receptive and expressive language. He noted that the standardized test scores from 8/02 and 11/03 had generally remained the same, with some scores going up and other scores going down a small amount. He opined that because these scores are standardized based on Student’s age, they generally indicate that Student has made a year’s growth in a year’s time. Exhibit P-4, S-29 (page 162 of School District’s exhibit book). Dr. Parker believes that these test scores reflect good progress for Student, given his cognitive levels; and he disputes the contention of Parent’s attorney that these scores reflect little growth.

Dr. Parker testified that he agrees with the following statement, contained within an 8-30-02 Massachusetts General Hospital neuropsychological evaluation report:

With respect to achievement skills, some very nice gains were noted in phonological and decoding skills and in sight word recognition. Access to those skills is still effortful, though, reflected in the effort required when reading isolated words that in turn was reflected in very slow, insecure reading when asked to read short passages. [Exhibit S-20, page 103 of School District’s exhibit book.]

Dr. Parker testified that the following statement from a 4-10-03 progress report from Carla Bernier (speech language pathologist) is consistent with what Pioneer Valley staff have been observing:

[Student] continues to make excellent progress in his auditory processing and verbal expression for reading and spelling development. He is beginning to read independently. [Exhibit S-25, page 134 of School District’s exhibit book.]

In the summary and impression part of Dr. Morgan’s 11/19/03 neuropsychological report, she wrote:

Overall cognitive abilities are generally in the Low Average range for age and consistent with [Student’s] performance on prior evaluations. He continues to have striking difficulty on language-based measures, particularly those that place demands on auditory attention, working memory, word retrieval and formulation. These difficulties adversely affect his learning and memory skills.

Exhibit P-3, S-30 (page 169). Dr. Parker testified that the Pioneer Valley staff who work with Student agree with this description of Student by Dr. Morgan.

Dr. Parker testified that as reflected in the Evaluation Consent Form provided Parent dated March 25, 2004 (exhibit S-37, page 200), Pioneer Valley has sought to perform academic and cognitive testing on Student, for which Parent has declined consent.

Dr. Parker made clear in his testimony that he believes that the information available to the School District from evaluators used by Parents and through the School District’s own testing has been limited. He testified, for example, that Parent had not provided him a release to speak with Liz Crawford, the speech language pathologist from Massachusetts General Hospital who has most recently evaluated Student (her report is found at exhibits P-4, S-29). He explained that as a result, he has not been able to talk with Ms. Crawford about her evaluation, conclusions and recommendations regarding Student. Dr. Parker also testified that, as reflected in minutes from a Team meeting on 10-18-02 (exhibit S-23, page 130 of School District’s exhibit book), he recommended that there be additional cognitive testing of Student, but Parents were not comfortable with this, and Dr. Parker did not pursue this further.

Dr. Parker testified that, as reflected within the IEP Team meeting notes of March 5, 2004, Parent was not interested, at the time of the IEP Team meeting, in considering changes to the IEP that might keep Student in a public school setting since she was only interested in a placement at the Curtis Blake School. Exhibit S-31, page 177 of the School district’s exhibit book.

· A speech/language and academic evaluation were completed on 6/22/01 and 6/30/01 by Kimberly McCarthy, MA, CCC-SLP, Speech and Language Pathologist. The evaluation report concluded that Student’s testing profile reflects a severe language based learning disability. Ms. McCarthy noted that these language deficits are “intertwined” with Student’s weaknesses in executive functioning and attentional issues which appear to be impacting his academic performance. The report further remarks that these disabilities combine with “reported low average to below average cognitive abilities” to present a “complex picture affecting his ability to optimally function in the academic realm.” Ms. McCarthy concluded: “A child with this type of profile will require consistent, intensive, daily intervention which will coordinate the role of speech and language pathologist with a special education professional and classroom teachers.” Exhibit S-9, page 11, page 53 of School District’s exhibit book.

· A speech/language evaluation was completed on 8/20/02 by Liz Crawford, MS, CCC-SLP, of the Speech-Language and Pathology Department of Massachusetts General Hospital. The evaluation report concludes that Student presents with a severe speech language disability, and recommends speech and language remediation three times per week to enhance phonological processing, retrieval, expression and executive functioning, as well as a continuation of Student’s reading program as reflected within his IEP. Exhibits P-1, S-18, pages 84 and 86 of School District’s exhibit book.

· A speech/language re-evaluation was completed on 11/18/03 by Liz Crawford, MS, CCC-SLP, of the Speech-Language and Pathology Department of Massachusetts General Hospital. The evaluation report summarized that Student’s language profile is “still consistent with a severe language based learning disability.” Ms. Crawford opined that [Student’s] current program is addressing his needs, but the intensity level may need to be increased.” The evaluation report included test scores from 2002 for purposes of comparison, and noted that some areas that have been focused on by Student’s service providers “have improved slightly or remained constant, which is a positive prognostic factor; however there were several areas that decreased from the previous testing.” Exhibits P-4, S-29, page 158 of School District’s exhibit book.

Testing scores, for example, reflect that between 8/02 (Ms. Crawford’s previous testing) and 11/03 (her current testing), Students scores on the WRMT were nearly identical – word identification standard score of 85 on both dates, word attack standard score of 88 on both dates, and passage comprehension standard scores decreased from 86 to 83. Exhibits P-4, S-29, page 163 of School District’s exhibit book.

Other test scores, for example, on the CELF-3, indicate that with respect to receptive and expressive language, Student’s subtest scores improved regarding formulating sentences and recalling sentences (with standard scores improving from 5 to 8 and 4 to 6, respectively, between 8/02 and 11/03), but declined with respect to word associations (with standard scores declining from 6 to 4 between 8/02 and 11/03), while other subtest scores remained the same or went down or up by one standard score. Except for the subtest score for listening to paragraphs (which was in the average range) and formulating sentences (which was in the low average range), Student’s subtest scores on the CELF-3 were in the below average range. Exhibits P-4, S-29, page 162 of School District’s exhibit book.

In her report, Ms. Crawford concludes that a “small, language-based classroom is recommended as the best potential learning environment” for Student. She provides a more detailed description of what would be included within such a classroom, and then concludes that if Student’s current placement cannot meet these criteria, an “outplacement may be the best solution for [Student’s] learning environment.” Ms. Crawford then mentions the possibility of placement at the Curtis Blake Day School and the Eagle Mountain School as schools which “report using multisensory, structured language approaches.” Exhibits P-4, S-29, pages 158 and 159 of School District’s exhibit book.

· A neuropsychological evaluation was completed on 5/27/02 and 6/2/02 by Penny Prather, PhD, of the Educational Enhancement Center in Newton Centre, MA. In her evaluation report, Dr. Prather explained that she administered the Wechsler Intelligence Scale for Children 3 rd Edition (WISC-III). The test scores for Student on the WISC-III were as follows: verbal IQ was a standardized score of 78, placing Student at the 7 th percentile; performance IQ was a standardized score of 84, placing Student at the 14 th percentile; and full scale IQ was a standardized score of 79, placing Student at the 8 th percentile. Dr. Prather noted that these test scores “should be considered cautiously, particularly given difficulty with retrieval, memory and attention”. She concluded that, based on her testing as well as prior testing, it is “likely” that Student’s “abilities fall at the lower end of the average range in the context of some significant language-related difficulties”. Exhibit S-4, page 5 of the report and page 18 of the School District’s exhibit book.

Dr. Prather recommended in her report that Student be provided with a small, structured classroom setting with sufficient small group and individual support to address Student’s language and attentional needs, together with intensive speech/language support to guide and accommodate his language needs. Exhibit S-4, page 15 of the report and page 28 of the School District’s exhibit book.

· A neuropsychological consultation was completed on 8/30/02 by Penny Prather, PhD, Staff Neuropsychologist, Tuberous Sclerosis Comprehensive Clinic, Massachusetts General Hospital. In her report, Dr. Prather reaches the following conclusions:

With respect to achievement skills, some very nice gains were noted in phonological and decoding and in sight word recognition. Access to those skills is still effortful, though, reflected in the effort required when reading isolated words that in turn was reflected in very slow, insecure reading when asked to read short passages. [Student’s] ability to understand content material is age appropriate when it is read to him. He is not, though, able to access reading material at or even near grade level independently through reading.

Current findings continue to reflect a significant language-based reading disability. While responding to remedial efforts particularly in learning phonics rules, [Student’s] progress has been slow, and current findings suggest that he will need more intensive support to address reading mechanics (both decoding and sight words skills) in order to gain increased fluency (automaticity) in those skills, while also providing comprehensive accommodations throughout the day to address his inability to access curriculum materials independently through reading.

Exhibit S-20, page 103 of School District’s exhibit book.

· A neuropsychological evaluation was completed on 11/19/03 by Amy Morgan, PhD, Neuropsychologist, Pediatric Epilepsy Program, Massachusetts General Hospital. In her report, Dr. Morgan indicates that she administered the WISC-IV to assess Student’s cognitive abilities and Student’s composite scores were as follows: verbal comprehension standard score of 89, placing Student at the 23 rd percentile; perceptual reasoning standard score of 88, placing Student at the 21 st percentile; working memory standard score of 68, placing Student at the 2 nd percentile; and processing speed standard score of 85, placing Student at the 16 th percentile. Exhibits P-3, S-30, page 172 of School District’s exhibit book.

Dr. Morgan, in her report, comments on these scores by concluding that the WISC-IV indicates that Student’s overall cognitive abilities are in the low average range, but also notes that because of the significant differences between composite scores, a full scale IQ score is not considered a valid indicator of his overall cognitive ability. Exhibits P-3, S-30, page 168 of School District’s exhibit book.

The report reached the following summaries: “Overall cognitive abilities are generally in the Low Average range for age and consistent with [Student’s] performance on prior evaluations.” Dr. Morgan further notes that Student continues to have “striking” difficulty on language-based measures, which difficulties adversely affect his learning and memory skills. She further opines: “The effects of his learning disabilities can be expected to constrain his ability to work as effectively in the academic setting as his intellectual ability would suggest.” Exhibits P-3, S-30, pages 169 and 170 of School District’s exhibit book.

Finally, Dr. Morgan, in her report, recommended academic placement in a setting that “provides small classroom instruction (8-10 students) and a language-based instructional style. He should receive sufficient in-class and individual support to address language as well as attentional . . . needs.” Exhibits P-3, S-30, page 170 of School District’s exhibit book.

A letter to Attorney Schmidt from Dr. Morgan, dated April 27, 2004, clarifies that her testing found that Student’s overall cognitive abilities and adaptive living skills are generally in the Low Average range of functioning. Exhibit P-5.

· Student’s MCAS report indicates that, with the accommodations called for within his IEP, he was able to pass both the English Language Arts section (scaled score of 246) and the Mathematics section (scaled score of 258). Exhibit S-44. Accommodations described in the IEP include reading aloud the language and literature components, and dictating or using a scribe on the composition test. Exhibit S-26, page 146 of School District’s exhibit book.

· An evaluation consent form , dated 3/25/04, sent to Parents by Pioneer Valley, recommended that Student be given an academic assessment, a cognitive assessment (utilizing the Woodcock Johnson III test) and an educational assessment, and that there be an observation of Student in the classroom and in his natural environment. Exhibit S-37, page 200 of School District’s exhibit book.

· The MAAPS Directory of Member Services 2003-2004 Edition includes a description of the Curtis Blake Day School. The description states, in part, that the School offers an elementary and middle school program “for students with average to above average intelligence who experience significant problems in acquiring reading, writing, math skills or with a nonverbal learning disability.” Exhibit S-40, page 207 of School District’s exhibit book.

D. DISCUSSION

1. Burden of Proof .

The federal First Circuit Court of Appeals has recently clarified that “the school district always bears the burden in the due process hearing of showing that its proposed IEP is adequate.”2 The school district bears this burden even when a change in a student’s IEP is sought by the parents.3

While it is the school district’s responsibility to prove that the IEP it recommends is appropriate, the school district does not also bear the burden of showing that an alternative, more restrictive placement suggested by a parent is inappropriate. Rather, it is the parent who bears the burden of showing that its proposed placement would provide student with an appropriate education in the least restrictive environment.4

2. FAPE .

Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act5 and the state special education statute.6 As such, Student is entitled to a free appropriate public education (FAPE).7 Neither his eligibility status nor his entitlement to FAPE is in dispute.

FAPE requires that the individualized education program (IEP) be tailored to address a student’s unique needs in a way reasonably calculated to enable the student to make meaningful and effective educational progress in the least restrictive environment.8

The principal issue presented is whether the programming and specialized services embodied in Pioneer Valley’s most recent IEP are consistent with this legal standard .

3. Appropriateness of Pioneer Valley’s Proposed IEP .

Pioneer Valley’s principal argument in defense of the appropriateness of its proposed IEP is that Student has made meaningful progress (and is likely to continue to make meaningful progress) in light of his potential to learn. Pioneer Valley is correct to emphasize that Student’s progress should be judged not in a vacuum but rather within the context of the particular student’s potential to learn.9

In order to gauge Student’s potential for learning, Pioneer Valley points to Student’s most recent scores on the Weschler Intelligence Scale for Children (WISC) as the most accurate and current information relative to Student’s cognitive abilities and therefore his potential to make educational progress. These scores are reported in the neuropsychological evaluation of 11-19-03 by Dr. Morgan of the Massachusetts General Hospital, an evaluation arranged by Parent. Dr. Morgan administered the WISC-4, which reflected composite test scores as follows:

Composite score standard score percentile classification

Verbal comprehension 89 23 low average

Perceptual reasoning 88 21 low average

Working memory 68 2 extremely low

Processing speed 85 16 low average

Exhibits P-3, S-30 (page 172 of School District’s exhibit book).10

Dr. Morgan, in her report, notes that Student’s working memory test score of 68 (see above) is a significant problem for him, making it not possible to determine his overall IQ. Pioneer Valley is willing to concede that the working memory score may be disregarded for purposes of determining Student’s cognitive abilities, and takes the position (which it believes is also the position of Dr. Morgan) that the remaining three composite test scores which are all in the low average range may provide a reliable indication of Student’s IQ or cognitive abilities. Testimony of Parker; exhibits P-3, P-5, S-30 (page 169 of School District’s exhibit book).

Student’s cognitive abilities, as reflected on the WISC-IV, may be compared with his scores on the Weschler Individual Achievement Test – II (WIAT-II) which is a companion test using the same metric as the WISC. On both tests, a standard score of 100 indicates that the student tested is at the 50 th percentile as compared to similarly aged children and one standard deviation below the mean would be a standard score of 85 or the 16 th percentile as compared to similarly aged children. Testimony of Parker.

The WIAT-II was administered to Student by Ms. Bernier (the speech language pathologist who testified on Student’s behalf at the Hearing) on 3-27-03. Student received the following standardized scores:

Reading composite 84

Mathematics composite 86

Written language composite 91

Oral language composite 82.

Exhibit S-25, page 135 of School District’s exhibit book.

Three of the four composite test scores from the WIAT-II (reading, math and oral language) fall in the low average range, while the fourth composite score (written language) falls in the average range. Testimony of Parker. Student’s WIAT-II scores are comparable to the cognitive test results from the WISC-4 (verbal comprehension, perceptual reasoning and processing speed), and support Pioneer Valley’s contention that Student is working academically up to his potential.

A comparison of the WIAT-II test scores from 12-27-01 and 3-27-03 also demonstrates educational progress in word reading (standard score improved from 77 to 80), reading comprehension (standard score improved from 73 to 84), and spelling (standard score improved from 79 to 83); but oral expression standard scores declined from 97 to 80 – an area of difficulty for Student. Testimony of Bernier, exhibits S-15 (page 77 of School District’s exhibit book), S-25 (page 136 of School District’s exhibit book).

Pioneer Valley also points to Student’s standardized test scores on the Woodcock Reading Mastery Test (WRMT) from the Massachusetts General Hospital speech language evaluations on 8/02 and 11/03:

WRMT subtest 8/02 11/03

Word identification 85 85

Word attack 88 88

Passage comprehension 83 8611

Exhibits P-1, P-4, S-18 (page 91 of School District’s exhibit book), S-29 (page 163 of School District’s exhibit book). Because these scores are standardized based on age and because they have remained relatively constant, they reflect a year’s growth in a year’s time. They also are at a commensurate level with Student’s cognitive test scores reflected in the WISC-4 administered on 11-19-03 and discussed above. Testimony of Parker, Bernier.

Pioneer Valley also points to the progress made on those skills worked on by Ms. Bernier. Ms. Bernier, hired by Pioneer Valley to work with Student at Parent’s request, is by all accounts an excellent speech language pathologist. She has worked with Student for the past two and a half years to provide additional services to Student. She has been providing speech language services to Student for two hours per week during the school year, and more intensive services during one summer. Testimony of Bernier.

It is not disputed that with respect to those skills which have been addressed by Ms. Bernier, Student has made meaningful progress. This is particularly true with respect to the first year she worked with Student when she focused exclusively on his pseudoword decoding skills. Student showed impressive gains, improving his decoding skills from the 5 th percentile on 12-27-01 to the 42 nd percentile on 3-27-03 as compared to other students his age. Exhibits S-15 (page 77 of the School District’s exhibit book), S-25 (page 136 of the School District’s exhibit book). Since 3-27-03, Ms. Bernier has been working with Student on multisyllable and decoding, has introduced sight words and has begun the Wilson reading program and begun working on writing with Student. Testimony of Bernier. Progress in these areas is reflected in Ms. Bernier’s written progress reports (exhibits S-15, S-21, S-41) and testimony.

Finally, Pioneer Valley points to the testimony of Student’s classroom teacher, special education teacher and speech language pathologist at the Rhodes Elementary School, all of whom testified that Student has made educational progress this school year. Testimony of Keech, Seaman, Maguire.

Although I find Pioneer Valley’s evidence and arguments to be credible and very competently presented by Dr. Parker, I am not persuaded, for the reasons set forth below, that Pioneer Valley’s IEP satisfies the legal requirements for FAPE by providing Student with meaningful and effective educational progress commensurate with his learning potential.

It is not disputed that the essential issue at stake in this dispute is the question of whether Student is making sufficient progress in his ability to read. Writing is also a concern, although reading is the more fundamental skill in question. Math, on the other hand, is not an issue as Student is performing at grade level.

Dr. Parker has conceded that Student’s progress has been slow and that he is significantly behind his peers with respect to reading. Dr. Parker testified that he does not necessarily expect Student to make a year’s progress in a year’s time, and Student may therefore fall further behind. However, Dr. Parker (and Pioneer Valley) contend that this progress is reasonable and acceptable in light of Student’s generally low average intelligence as reflected most recently on the WISC-4, placing him in the 16 th , 21 st and 23 rd percentiles on three of the four composite scores. Pioneer Valley believes that these IQ scores indicate, regrettably, that Student has only a limited potential to learn how to read. Testimony of Parker. As explained above, the responsibility of a school district to provide meaningful and effective educational progress is judged within the context of a particular student’s potential for learning.

Pioneer Valley has assumed that Student’s potential for learning how to read is best measured by his IQ scores. Pioneer Valley has not provided expert opinion directly in support of this proposition. However, Dr. Parker responded to a question from the Hearing Officer regarding Student’s potential for learning how to read. Dr. Parker prefaced his answer by explaining that he does not have expertise in this area (having never been a reading teacher or taught reading), and then responded that his best estimate would be that Student could learn how to read up to the middle school level (without specifying which middle school grade) by the time he completed high school.12

In contrast, Parent presented expert testimony that a student’s IQ is an inappropriate and inaccurate indicator of a student’s potential to learn through intensive reading instruction. Linda Lafontaine testified as a speech language pathologist who provides direct remediation at the Curtis Blake School and who also screens candidates for admission. An important consideration in determining admission is whether the student is likely to benefit from the intensive, language-based instruction provided at Curtis Blake. It is apparent that Curtis Blake, in general, and Ms. Lafontaine, in particular, have significant experience teaching students (with profiles similar to Student) to learn how to read. Testimony of Lafontaine.

Ms. Lafontaine was persuasive that IQ does not predict whether a student will benefit from reading remediation and can learn to read. She explained that the cause of reading difficulties is based on deficits other than IQ — in particular, poor phonemic awareness and poor rapid naming skills. After reviewing the most recent evaluations of Student done at Massachusetts General Hospital (speech language evaluation and neuropsychological evaluation), Ms. Lafontaine opined that Student’s deficits are indicative of a language-based learning disability which would be appropriately addressed by specific programs and strategies at Curtis Blake. I am persuaded by this testimony that Student’s potential to learn how to read is not so limited as his cognitive testing of IQ (pursuant to the WISC-IV and WISC-III) would suggest.

I now consider Student’s likely educational progress under the current IEP in this light.

It is not disputed that Ms. Bernier and Student’s service providers at the Rhodes Elementary School have successfully taught Student many of the prerequisite skills necessary for reading. Many of the test results and progress reports indicating reading progress reflect Student’s success in these areas. For example, test results indicate significant gains regarding decoding skills. Exhibits S-15 (page 77 of the School District’s exhibit book), S-25 (page 136 of the School District’s exhibit book).

Notwithstanding this progress, Student has had for some time and continues to have a great deal of difficulty reading. As Ms. Bernier has persuasively explained, Student has not been able to move past an understanding of reading mechanics. He expends all of his efforts on trying to understand the meaning of the words, one word at a time, leaving little energy or opportunity to read the sentence or paragraph as a coherent whole. As a result, there is very little fluidity to his reading and it is difficult for him to understand what he has read. Mother’s description of Student’s read books at his level (at the 2 nd and 3 rd grade levels) illustrates the problem — she finds that he has to stop to sound out individual words, making it very difficult for him to read and understand books even at this level.

These reading difficulties are reflected in the Gray Oral Reading Test 4 (GORT-4) test scores (done as part of the 11-18-03 speech language evaluation at MGH). The GORT-4 subtests for rate, accuracy and fluency are all at or below the 1 st percentile when compared to other students his age. Exhibits P-4, S-29, page 163. Although these scores may underestimate somewhat Student’s actual reading abilities, they nevertheless graphically illustrate Student’s severe weaknesses that limit his ability to read.

These difficulties and limitations have persisted since at least 8-30-02 when a Massachusetts General Hospital neuropsychological evaluation reported on essentially the identical reading concerns:

With respect to achievement skills, some very nice gains were noted in phonological and decoding skills and in sight word recognition. Access to those skills is still effortful, though, reflected in the effort required when reading isolated words that in turn was reflected in very slow, insecure reading when asked to read short passages. [Exhibit S-20, page 103 of School District’s exhibit book.]

Dr. Parker testified that he agreed with this statement by the MGH neuropsychologist, presumably because it characterizes Student’s current reading limitations. It is apparent that Pioneer Valley’s current IEP (and last year’s IEP which was essentially identical to the current IEP) have made little headway in addressing these underlying deficits regarding reading.

The concern that Student has made little gains in his overall reading ability is confirmed by the testimony of the Pioneer Valley regular education and special education teachers working with Student. Student is currently near the end of his 5 th grade year. Although opinions differ somewhat, all of the estimates of his current independent reading level place him in the range of 2 nd grade to lower 3 rd grade level. Testimony of Bernier, Maguire, Keech, Mother. The testimony of Student’s special education teacher and regular education teacher is that Student has gained no more than several months of progress in his reading level this school year. Progress in writing this year has also been minimal. Similarly, Student’s special education teacher testified that with similar special education and related services, Student made only a few months progress in his reading level during the previous school year. Testimony of Maguire, Keech. Perhaps equally disheartening is that Student’s special education teacher cannot account for Student’s failure to make greater reading progress, and the current IEP would continue to provide the same placement and services next year in the 6 th grade, apparently with the assumption that it is acceptable for Student to continue with this rate of educational progress. Testimony of Maguire.

It is apparent that Student is far behind his regular education peers with whom he is placed at the Rhodes Elementary School. With the services to be provided next year pursuant to his existing IEP, Student as a 6 th grader will likely fall even further behind his regular education peers.

The witness most knowledgeable about Student and his reading difficulties was Ms. Bernier. Ms. Bernier is a highly experienced and capable speech language pathologist whom Pioneer Valley has paid to provide speech language therapy to Student for the past two and a half years, currently for two hours each week and with more intensive instruction during one summer. She believes that Student is capable of reading at a significantly higher level, in part because Student’s listening comprehension abilities are exactly average (standard score of 10). However, she is clear that, in her opinion, these gains cannot be achieved under the existing IEP.

Ms. Bernier was persuasive that in order to make meaningful reading gains, what Student learns from his specialists in pull-out sessions (through Ms. Bernier, Ms. Maguire and Ms. Seaman) must be reinforced consistently throughout the day in the classroom by persons trained to do so. The classroom teacher (Mr. Keech) testified that he consults regularly with Ms. Maguire (the special education teacher working with Student), but it is apparent from Mr. Keech’s and Ms. Maguire’s testimony that what occurs in the classroom does not provide consistent reinforcement of reading strategies which have been taught by the specialists.

For example, Mr. Keech testified that the language he uses and the instruction he provides for the class is not modified for Student. Instead, he relies on additional, individual assistance from him or Student’s aide to help Student understand. Ms. Maguire testified that there is no consistent follow-through in the classroom to carry over what Ms. Bernier is working on with Student. Mr. Keech testified that he does not know if he is using the same methodology that others may be working on with Student.

A further indication that there is insufficient reinforcement in the classroom of what is taught outside the classroom is the lack of coordination between Ms. Bernier and those working with Student at the Rhodes Elementary School. Apart from communication that may occur during IEP Team meetings, Ms. Seaman (the Pioneer Valley speech language pathologist working with Student) reported that not once this school year has there been a conversation between her and Ms. Bernier to coordinate the speech language therapies which they are both providing Student, nor has Ms. Bernier had the time to visit the classroom this school year to understand what is occurring within this context.

The need for more intensive special education services (than are currently provided pursuant to Student’s IEP) was highlighted in the neuropsychological evaluations conducted at the Massachusetts General Hospital in 8/30/02. After expressing concerns regarding Student’s reading progress, the MGH evaluator recommended more intensive services in order to address the underlying deficiency of reading fluency:

Current findings continue to reflect a significant language-based reading disability. While responding to remedial efforts particularly in learning phonics rules, [Student’s] progress has been slow, and current findings suggest that he will need more intensive support to address reading mechanics (both decoding and sight words skills) in order to gain increased fluency (automaticity) in those skills, while also providing comprehensive accommodations throughout the day to address his inability to access curriculum materials independently through reading.

Exhibit S-20, page 103 of School District’s exhibit book.

MGH evaluators conducted a second neuropsychological evaluation on 11/19/03, noting that Student continues to have “striking” difficulty on language-based measures, which difficulties adversely affect his learning and memory skills. The report recommends academic placement in a setting that “provides small classroom instruction (8-10 students) and a language-based instructional style. He should receive sufficient in-class and individual support to address language as well as attentional (including deficits in working memory and ‘on-line’ processing) needs.” Exhibits P-3, S-30, page 170 of School District’s exhibit book.

I give these reports only limited weight because the evaluators did not testify, and were therefore not subject to cross-examination or questioning by the Hearing Officer. In addition, there is nothing in the record to indicate the experience or credentials of the evaluators (other than their titles and degrees listed on the reports). Nevertheless, these reports reinforce Ms. Bernier’s testimony by indicating that to appropriately address Student’s underlying limitations regarding reading and writing, additional and more intensive special education services are necessary if meaningful reading progress is to be made.

I find that Pioneer Valley’s current IEP fails to adequately address, in a sufficiently consistent and comprehensive manner, Student’s language-based learning disability and his attention needs (including, in particular, his deficits in working memory and ADHD). As a result, Student has made progress in learning the mechanics of reading, but for several years has not been able to translate these skills into reading that is fluid and functional, and consequently only marginal improvements have been made in Student’s reading and writing as measured by his overall grade level abilities in these areas.

Pioneer Valley would propose to continue next school year essentially the same services and placement which have failed to provide Student with meaningful and effective progress during this and last school years. I find that Student has the potential to begin to catch up with his regular education peers, but only if provided additional, more intensive services than are currently proposed in Pioneer Valley’s IEP.

For these reasons, I conclude that Pioneer Valley’s current IEP is not reasonably calculated to provide Student with FAPE.

4. Additional Services to be Provided Within the Public School Setting .

There has been little or no evidence as to how the IEP could be improved to make it appropriate for Student and allow him to remain in the public school setting.

Parent declined to address this issue at the Hearing, preferring to focus her evidence and argument on the inadequacy of the current IEP and appropriateness of a placement at the Curtis Blake School.

Similarly, Pioneer Valley defended its IEP without offering evidence regarding additional services that might be added to Student’s IEP, other than suggesting that the IEP reflect additional time from Student’s aide, presumably to comport with what is actually occurring within the classroom. Testimony of Parker.13

Accordingly, I am not able to make any findings regarding this issue at this time.

5. Parent’s Proposed Placement .

As noted above in part D1 of this Decision, Parent bears the burden of persuading me that her proposed placement at the Curtis Blake School is reasonably calculated to provide Student with FAPE in the least restrictive environment.

Parent has easily met this burden with respect to the question of whether the Curtis Blake School would provide special education and related services that would likely result in meaningful and effective educational progress. Curtis Blake is established specifically to address the educational needs of children who have Student’s disabilities. The unrebutted testimony was that it has developed an educational program of small classes and intensive reading instruction that is consistently reinforced throughout the curriculum in a manner that is likely to provide learning disabled children such as Student with a meaningful opportunity to make significant educational progress. Its instruction is also aligned with the Massachusetts Curriculum Frameworks, ensuring that students are educated consistently with the expectations of the Massachusetts Department of Education. Dr. Parker’s two concerns regarding the School – that it is not appropriate for a student with an IQ in the 80’s and that it may not be able to accommodate Student’s attention deficits – were persuasively responded to by Ms. Lafontaine. I am persuaded that Curtis Blake School would likely meet Student’s unique educational needs.

It is necessary but not sufficient, however, for Parent to demonstrate that placement at Curtis Blake would likely result in appropriate educational services for Student. Within the general mandate of FAPE, the state and federal special education laws provide an explicit directive prescribing the environment within which students with special needs are to receive their education. The IDEA provides that each state must establish policies and procedures to assure that:

To the maximum extent appropriate, children with disabilities . . . are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of the child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.14

Pursuant to this requirement, Pioneer Valley has a legal responsibility to provide Student’s education in the least restrictive environment where appropriate services can be delivered. Providing educational services only within the Curtis Blake School would remove Student from contact with regular education students during the school day and be considered a more restrictive educational setting than a public school setting.

Accordingly, in order to prevail and obtain placement at Curtis Blake, Parent must persuade me that Student’s special education needs cannot be met, through modifications and additions to the IEP, within the public school setting at the Rhodes Elementary School. I find that Parent has not met this burden for the following reasons.

The question of whether Student’s needs can be met through modifications and additions to the IEP, rather than placement at a substantially separate program such as Curtis Blake, must be answered principally through the testimony and reports of persons with sufficient expertise and knowledge. As a practical matter, it may be difficult, if not impossible, for a witness or evaluator to provide relevant, expert and persuasive opinion on this issue without first spending time at Student’s public school setting, observing Student in his classroom, speaking to Student’s teachers and specialists, etc. None of Parent’s expert witnesses and evaluators has taken this step. Accordingly, none of Parent’s expert witnesses was able to testify persuasively as to what is actually occurring in Student’s current placement, and why these special education services could not be amended or improved sufficiently to result in meaningful and effective educational progress within the public school setting.

I now consider, more specifically, Parent’s evidence in support of the proposition that no less restrictive placement than Curtis Blake would be appropriate. Ms. Bernier testified that Student needs the kind of language-based, intensive program provided by Curtis Blake. Ms. Bernier visited Student’s classroom during the previous year (2002-2003 school year) but even this visit was far short of an assessment of Student’s educational services. She has not visited Student’s placement this school year (Student’s teacher and classroom this year are not the same as last school year). Ms. Bernier has also had little, if any, communication with Student’s teachers and other service providers at the Rhodes School during this school year. In addition, although Ms. Bernier has considerable expertise regarding speech language services necessary to teach Student to read, it was not demonstrated at Hearing that Ms. Bernier has expertise in making recommendations regarding Student’s educational placement. In fact, Ms. Bernier testified that she has never visited or observed Curtis Blake or any other language-based educational program, even though it is this kind of program which Ms. Bernier is recommending for Student. I find that Ms. Bernier is not able to offer an informed, expert opinion regarding the question of whether Student’s public school placement could be sufficiently improved to provide Student with FAPE.

Ms. Lafontaine (the Curtis Blake speech language pathologist) testified that the intensive, language based program at Curtis Blake is what Student needs and that these services cannot be provided in a typical classroom. Ms. Lafontaine has limited knowledge of Student, having gotten to know him only through her review of two Massachusetts General Hospital evaluations. She has not met, evaluated or worked with Student, has never spoken with Pioneer Valley staff about Student, has not reviewed Student’s records and has not visited or observed Student’s current placement at Pioneer Valley. She also has no demonstrated expertise in evaluating, adjusting or otherwise improving a public school placement in order to meet the learning needs of someone with Student’s disabilities. I find that Ms. Lafontaine is not able to offer an informed, expert opinion regarding the question of whether Student’s public school placement could be sufficiently improved to provide Student with FAPE.

Parent seeks support for a Curtis Blake placement in the most recent Massachusetts General Hospital neuropsychological and speech language evaluations. Neither evaluator has spoken with any staff at Pioneer Valley this school year, neither evaluator has visited or observed Student’s current placement, and no resume or other description of qualifications was provided for either evaluator in order to demonstrate their qualifications. Without their testimony, it is not possible to know (1) whether they are qualified to render a placement recommendation, (2) what they know about Student’s current placement, or, most importantly, (3) whether they believe that changes could be made to Student’s current IEP in order for Student to receive FAPE, rather than Student’s being placed in a substantially separate program.15 Finally, I note that the MGH evaluation reports themselves are most appropriately read as raising significant concerns regarding current services and describing the attributes of an appropriate placement, rather than drawing any firm conclusions as to whether those services can only be provided in a substantially separate program such as Curtis Blake.16

I conclude that Parent has provided no credible evidence to demonstrate why Student’s language-based learning disability, ADHD and other deficits cannot be satisfactorily addressed through additional, more intensive services within the public school setting. Accordingly, I am not able to determine, at this time, that a substantially separate program, such as the Curtis Blake School, is the least restrictive environment that can appropriately meet Student’s needs.

6. Additional Evaluation .

I have determined that Student’s IEP is not reasonably calculated to provide him with FAPE. There is insufficient evidence to allow me to determine whether or how the IEP could be improved to make a public school placement appropriate. And, no persuasive evidence has been presented that Curtis Blake is the least restrictive appropriate placement. Accordingly, I am unable to order necessary relief in order to ensure that Student is provided FAPE in the least restrictive environment. For these reasons, I turn to my authority to order an additional evaluation at the school district’s expense “when necessary to determine the appropriate special education for the student”.17

The evaluator should have sufficient experience and expertise relevant to recommending special education services and placement for children with Student’s profile (in particular, Student’s language-based learning disability and his attention needs). The evaluator will be expected to review the Student record and this Decision, speak with Parent, meet with Student and observe him in his current placement, and speak with Dr. Parker, Ms. Maguire, Ms. Seaman, Mr. Keech and Ms. Bernier. The evaluator may choose, in his/her discretion, to speak with additional persons, review additional documents and/or view additional educational settings, and each party may make recommendations to the evaluator in this regard. The evaluator need not perform any additional testing of Student unless agreed upon and requested by both parties.

The evaluation must address the following questions in order to provide guidance to Parent, the School District, and, if necessary, the Hearing Officer:

1. Can additions or modifications be made in Student’s current IEP so that Student’s placement at the Rhodes Elementary School would be tailored to address his unique needs in a way reasonably calculated to enable him to make meaningful and effective educational progress (regarding reading and other subject areas) commensurate with his educational potential?

2. If so, what would those additions or modifications be?

3. If not, what would the evaluator recommend as the least restrictive placement which would satisfy the standard set forth in question # 1 above?

The evaluator should provide a written report addressing these three questions (with explanation of the reasons for his/her recommendations), should be willing and available to participate in an IEP Team meeting to discuss his/her recommendations for the purpose of seeking to resolve this dispute informally, and should be prepared to testify, if necessary, at a BSEA Hearing if this dispute cannot be resolved informally by the parties. The evaluator should be able to complete his or her evaluation in a timely manner so that Student’s placement can be resolved prior to the 2004-2005 school year.

Unless the parties are able to resolve this dispute informally with the result that the Hearing Request is withdrawn on or before May 21, 2004, each party shall provide a status report, to be received by me (and each other) no later than 5:00 PM on May 21, 2004 . Each status report shall advise me whether the parties have been able to agree upon the identity of the evaluator and if so, the name of the evaluator and the dates upon which he or she will conduct the evaluation. If the parties have been able to agree on the evaluator, Pioneer Valley shall immediately engage this person to perform the requisite evaluation, as described above.

If the parties are not able to agree upon an evaluator, each status report (due May 21 st ) shall recommend two or three evaluators, with the reasons in support of the appointment of each evaluator and the availability of the evaluator to complete the evaluation in a timely manner. By May 25, 2004 , each party may provide me with any comments upon or other response to the opposing party’s recommended evaluators. I will designate the evaluator as soon thereafter as possible so that Pioneer Valley can then immediately engage the evaluator to perform the requisite evaluation.

At any time that it appears that the parties may not be able to resolve informally their dispute regarding Student’s placement and services for the 2004-2005 school year, either party may file a request with me that the record be re-opened and supplemented by the evaluator’s written report and testimony and that a supplemental Decision be issued by me.

E. ORDER

Pioneer Valley shall provide an evaluation of Student, as described above in part D6 of this Decision.

Each party shall submit a status report to the Hearing Officer and opposing party, to be received no later than 5:00 PM on May 21, 2004 , as described above in part D6 of this Decision.

By the Hearing Officer,

William Crane

Dated: May 14, 2004

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL

Effect of the Decision

20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Consequently, the Bureau cannot permit motions to re-consider or to re-open a Bureau decision once a final decision is issued. In this case, a final decision has been issued regarding the need for an additional evaluation. However, this decision has not addressed the merits of the dispute regarding Student’s 2004-2005 school year placement, it should not be considered a final decision until either the parties resolve the dispute regarding placement for the 2004-2005 school year, the Hearing Request is withdrawn or a supplemental decision is issued to address this issue.

Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must seek such stay from the court having jurisdiction over the party’s appeal.

Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).

Compliance

A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appeals contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).

Rights of Appeal

Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).

Under Massachusetts General Laws, Chapter 30A, Section 14(1), appeal of a final Bureau decision to state superior court must be filed within thirty (30) days of receipt of the decision.

The federal courts have ruled that the time period for filing a judicial appeal of a Bureau decision in federal district court is also thirty (30) days of receipt of the decision, as provided in the Massachusetts Administrative Procedures Act, M.G.L. c.30A . Amann v. Town of Stow , 991 F.2d 929 (1 st Cir. 1993); Gertel v. School Committee of Brookline , 783 F. Supp. 701 (D. Mass. 1992).

Therefore, an appeal of a Bureau decision to state superior court or to federal district court must be filed within thirty (30) days of receipt of the Bureau decision by the appealing party.

Confidentiality

In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.

Record of the Hearing

The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.


1

Exhibit S-26.


2

T.B. v. Warwick School Committee , 361 F3d. 80, 82 n.1 (1 st Cir. 2004) and cases cited therein. For a comprehensive discussion of this issue, see Weas v. Schaeffer, 240 F. Supp. 2d 396 (DC Md. 2002).


3

Fuhrmann v. East Hanover Bd. of Educ., 993 F.2d 1031, 1034-1035 (3d Cir. 1993), cited with approval in T.B. v. Warwick School Committee , 361 F3d. 80, 82 n.1 (1 st Cir. 2004).


4

Carlisle Area Sch. v. Scott P. by Bess P., 62 F.3d 520, 527 (3d Cir. 1995), cert. denied, 116 S.Ct. 1419 (1996); Schreiber v. Ridgewood Board of Education , 952 F.Supp. 205 (DC NJ 1997).


5

20 USC 1400 et seq .


6

MGL c. 71B.


7

MGL c. 71B, ss. 1 (definition of FAPE), 2, 3.


8

For a more complete explanation of this standard and the legal authorities upon which it is based, see In re: Arlington , 37 IDELR 119, 8 MSER 187, 193-195 (SEA MA 2002). See also the following regulatory provisions not referenced in Arlington : 603 CMR 28.05(4)(b) (Student’s IEP must be “ designed to enable the student to progress effectively in the content areas of the general curriculum”); 603 CMR 28.02(9) (“ An eligible student shall have the right to receive special education and any related services that are necessary for the student to benefit from special education or that are necessary for the student to access the general curriculum.”); 603 CMR 28.02(18) (defining the phrase “ progress effectively in the general education program”).


9

Federal Courts have made clear that progress should be considered within the context of the potential of the particular student to benefit from the educational services. See, e.g., Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) (“disabled child’s development should be measured not by his relation to the rest of the class, but rather with respect to the individual student, as declining percentile scores do not necessarily represent a lack of educational benefit, but only a child’s inability to maintain the same level of academic progress achieved by his nondisabled peers”); T.R. ex rel. N.R. v. Kingwood Twp. Bd. of Educ., 205 F.3d 572, 578 (3d Cir. 2000) (assessment of what constitutes free appropriate education made in light of “individual needs and potential”); Ridgewood Board of Education v. NE , 172 F.3d 238 (3 rd Cir. 1999) (“quantum of educational benefit necessary to satisfy IDEA . . .requires a court to consider the potential of the particular disabled student before it”); Mrs. B. v. Milford Board of Ed. , 103 F.3d 1114, 1122 (2d Cir. 1997) (“child’s academic progress must be viewed in light of the limitations imposed by the child’s disability”); MC v. Central Regional School District , 81 F.3d 389 (3 rd Cir. 1996), cert. denied 519 US 866 (1996) (child’s untapped potential was appropriate basis for residential placement); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990) (“academic potential is one factor to be considered”); Kevin T. v. Elmhurst , 36 IDELR 153 (N.D. Ill. 2002) (“in determining whether a school district has provided a FAPE, the court must analyze the child’s intellectual potential and then assess the student’s academic progress”). See also MGL c. 71B, s. 1 (defining “special education” to mean “educational programs and assignments . . . designed to develop the educational potential of children with disabilities . . . .”; 603 CMR 28.01(3) (identifying the purpose of the state special education regulations as “to ensure that eligible Massachusetts students receive special education services designed to develop the student’s individual educational potential”).


10

An earlier intelligence test was administered by Massachusetts General Hospital using the WISC-III. The results from the WISC-III are comparable to the results from the most recent WISC-IV. Exhibit S-4.


11

Exhibits P-4, S-29 (page 163 of School District’s exhibit book) indicate that the passage comprehension scores are 83 on 11/03 and 86 on 8/02, but upon review of the earlier evaluation (exhibit P-1, S-18 (page 91 of School District’s exhibit book)), it appears that this may be a typographical error.


12

To his credit, Dr. Parker has been open minded about this issue. He made clear that he hopes that he is wrong about Student’s potential to learn to read. He went further to say that he would be willing to meet with Curtis Blake staff and if they could persuade him that Student could be taught to read at grade level (or one year below grade level) after two years at Curtis Blake, he would likely place Student at Curtis Blake even if the law did not require it.


13

Dr. Parker (as the Pioneer Valley Director of Special Education) has indicated his interest in speaking with Curtis Blake staff, in speaking with the MGH evaluators, in evaluating Student further regarding his cognitive level and academic skills and in further considering any reasonable arguments as to what might be done to improve Student’s IEP. Parent apparently made the decision not to facilitate this kind of dialogue or to allow Dr. Parker the opportunity for further evaluation until very recently. Parent’s responses at the most recent IEP Team meeting and to Dr. Parker on other occasions made it clear that she is not interested in seeking to improve Student’s current placement, and was only interested in a placement at Curtis Blake.


14

20 USC 1412(5)(A). The Massachusetts special education statute also requires that FAPE be provided in the least restrictive environment (MGL c. 71B, ss. 2, 3) and defines the term “least restrictive environment” consistent with the federal statutory language quoted above (MGL c. 71B, s. 1).


15

By letter to me of April 27, 2004 enclosing a supplemental letter from the MGH neuropsychologist regarding the WISC-4 and Student’s needs, Parent’s attorney stated that the neuropsychologist “would be more than happy to testify” if that would be “helpful” to me “as the trier of fact.” It is the responsibility of counsel, not the Hearing Officer, to determine Parent’s witnesses. The Hearing Officer cannot be put in the position of deciding what evidence a party should submit.


16

The most recent neuropsychological evaluation recommends only that Student be placed in a setting that “provides small classroom instruction (8-10 students) and a language-based instructional style. He should receive sufficient in-class and individual support to address language as well as attentional . . . needs.” Exhibits P-3, S-30, page 170 of School District’s exhibit book.

The most recent speech language evaluation recommends a “small, language-based classroom” as the “best potential learning environment” for Student. She provides a more detailed description of what would be included within such a classroom, and then concludes that if Student’s current placement cannot meet these criteria, an “outplacement may be the best solution for [Student’s] learning environment.” Exhibits P-4, S-29, pages 158 and 159 of School District’s exhibit book.


17

603 CMR 28.08(5)(c). See also BSEA Hearing Rule 9B12.


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