Re: Emily v Bedford Public Schools – BSEA #04-4524



<br /> Re: Emily v Bedford Public Schools – BSEA #04-4524<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

BSEA# 04-4524

IN RE: EMILY1 v BEDFORD PUBLIC SCHOOLS

DECISION

This decision is issued pursuant to M.G.L. c.71B and 30A, 20 U.S.C.§1401 et seq ., 29 U.S.C. §794, and the corresponding regulations.

A hearing was conducted on the afternoon of June 7, 2004 and the morning of June 9, 2004 at the Bureau of Special Education Appeals (BSEA) in Malden, MA.

Those present for all or part of the hearing were:

Mother

Father

Marion Sanders Psychologist

Gretchen Timmel Psychologist

Lenore Zavalick Teacher, Bedford Public Schools

LuAnn Foley TEAM Chairperson/Special Education Teacher; Bedford Public Schools

Barbara Koren Special Education Director; Bedford Public Schools

Carolyn Cohen 5 th Grade Special Education Teacher; Bedford Public Schools

Tricia Kraeger 6 th Grade Special Education Teacher; Bedford Public Schools

Jane Riley School Psychologist; Bedford Public Schools

Robin Talkowski Reading Specialist; Bedford Public Schools

Lore Kantrowitz Psychologist

Robert Augustine Advocate for Parents

Rebecca Bryant Attorney; Bedford Public Schools

Joan Beron Hearing Officer, BSEA

Thomas Houton Court Stenographer, Catougno Court Reporting

The official record of the hearing consists of Joint Exhibits marked JA-JJJ and approximately five hours of stenographic testimony. The record closed on July 1, 2004 when the Hearing Officer received a written and electronic closing argument from Bedford2 .

ISSUES

I. Does Bedford’s proposed IEP calling for a team taught inclusion program for 6 th grade provide Emily with a free appropriate public education (FAPE) in the least restrictive environment (LRE)?

II. If not, can the program be made appropriate with accommodations and/or modifications?3

FINDINGS OF FACT

1. Emily (d.o.b. March 15, 1993) is an outgoing, friendly, social, athletic4 eleven-year-old student who lives with her parents and her thirteen and seventeen year old sisters in Bedford MA (Mother, Zavelick, Cohen). Emily’s two older sisters also have special needs and have, since their secondary school years, attended approved special education programs pursuant to IEPs (Mother).

2. Emily recently completed 5 th grade at the Lane School in Bedford, MA; see e.g. (Mother, Zavalick, JX). Emily will be entering the 6 th grade in the fall of 2004. Emily receives special education services to address deficits in decoding, spelling, reading fluency, organization, expansion and editing in her writing and managing stress that occurs as a result of her disabilities; see (JX, Zavelick, Cohen). In 5th grade Emily received a program with three periods of pull out support in phonics (Wilson instruction) and four additional periods of pull out special education support in reading fluency and reading and writing support. She also received team-taught reading support five times per week and team-taught support in written language an additional two times per week and fifteen minutes of weekly consultation from the special education staff (JX).

3. For 6 th grade, the TEAM has proposed a middle school program with pull out phonics instruction three periods a week, pull out reading instruction twice a week, pull out writing instruction one a week and support in the learning center in reading and writing for an additional three periods a week. Emily would also be placed in a team-taught inclusion English class eight periods a week, a TEAM taught math class four periods a week and team-taught science and social studies each for one period per week (JX). Emily’s special education program would also include fifteen minutes of weekly consultation from the special education staff and an additional fifteen minutes of consultation from the school adjustment counselor; Id. Mother is concerned that Emily will become anxious and will shut down if placed in a middle school setting with multiple teachers and multiple expectations because she will not read well enough to understand middle school material and, if put into that environment, may engage in risk taking behaviors (Mother).

4. Emily has been accepted at the Carroll school (Mother). Parents would like Emily placed there pursuant to an IEP because Emily needs a program that provides text at her instructional level that she can access and read, needs 1:1 tutoring in decoding that will move at her pace (Mother). Bedford maintains that its program provides a FAPE to Emily in the least restrictive environment; however, if the Hearing Officer finds that the program does not provide a FAPE to Emily and cannot be modified to provide a FAPE, it will place Emily at the Carroll school (Stipulation).

5. Emily at first began receiving special education services in 3 rd grade after Bedford received a private neuropsychological evaluation from the Massachusetts General Hospital (MGH) done on November 1, 2001 (JD, JE). The evaluation was done due to concerns that Emily was anxious and was not reading fluently despite school support services in reading (Mother, JD, see also JC). Emily displayed average intellectual function (WISC verbal IQ 106, performance IQ 99) with average reading comprehension scores (47 th percentile) and average to above average memory and recall (JD). However, additional testing was consistent with a diagnosis of dyslexia (JD).5 Emily was also diagnosed with a generalized anxiety disorder. However, MGH also noted that despite Emily’s tendency toward anxiety she had self-esteem, self-respect and self-acceptance and perceived herself to have good social relationships and friendships with peers (JD). MGH also noted that Emily showed some symptoms of ADHD such as failing to finish work, not following through on instructions and distractibility, but felt that these issues were primarily caused by her reading disability (JD). MGH recommended that Emily receive individualized tutoring with an approach that teaches phonological rules in a direct, multisensory and sequential manner. MGH also recommended that Emily receive extra time on tests and assignments as needed; that Emily not be penalized for spelling errors on written assignments and that the computer be considered to assist in spelling, reading and writing. MGH also recommended therapy to help Emily manage and cope with her symptoms of anxiety (JD). Bedford reviewed MGH’s recommendations and developed an IEP that incorporated and expanded MGH’s recommendations; see (JE, compare JD, JE). In 3 rd and 4 th grade, Emily progressed in her reading and writing skills, frequently volunteered her ideas in class and became more comfortable during the year (JG, JH, JI). Emily was able to complete grade level work with modifications and support, improve her reading and fluency rate and receive satisfactory to excellent grades in all areas (JG, JH). Although improved, Emily continued to need work on spelling and decoding unfamiliar multisyllabic words. Her reading comprehension continued to be good even when reading long passages (JG, JI). However Emily’s completion of homework continued to be a concern as was Emily’s anxiety level when asked to read aloud (Mother, JG, JI).6

6. Emily received a psychological reevaluation from MGH on November 7, 2002 (JFF). She received a speech and language evaluation on February 3, 2003 (JGG). The speech/language evaluation showed word retrieval and rapid naming deficits along with some difficulty recognizing visual word patterns. She did not however present as having a language-based learning disability (JGG). During the psychological evaluation Emily was more articulate and engaging than the previous year, easily separating from Mother (JFF). Her affect was brighter and she required less encouragement to participate in difficult tasks; Id. She did however continue to think of herself as an underachiever and became quite sad when she perceived her work as being poor; Id. When tested on the WIAT, Emily showed gains in all areas (JFF) from the previous year. However her percentile scores in word reading dropped from the 18 th to the 12 th percentile and her spelling percentile scores dropped from the 30 th to the 16 th percentile7 . Emily continued to struggle with decoding with pseudoword decoding rising from the 16 th to the 21 st percentile (GE 2.1) which MGH felt represented little improvement from the following year. Emily’s reading comprehension remained in the average range but suffered considerably when given a time constraint (JFF) as did her rate and accuracy as reflected on the Gray Oral Reading test (1 st to 2 nd percentile scores (G.E. 1.7) (JFF). Her score however on the Lindamood Test of Auditory Conceptualization rose from the mid 1 st grade level to the mid third grade level; Id. Both MGH evaluators continued to recommend individualized reading instruction such as Wilson or Orton-Gillingham. The SLP also recommended that written language intervention be incorporated in the instruction; see (JGG).

7. MGH’s psychologist and liaison Gretchen Timmel8 observed Emily’s 4 th grade classroom on January 15, 2003 (JJ, see JDD). She did not conduct testing at that time (JJ, Timmel). Ms. Timmel noted that Emily participated and benefited from the multisensory and interactive teaching in music, science, open circle and language arts and was relaxed and attentive in each class (JJ). Ms. Timmel also observed Emily’s Wilson tutorial. Emily was paired with one other student although she was seen individually one day a week (JJ). The teacher had taken the two day overview in Wilson but was not certified in Wilson, Ms. Timmel observed the teacher review Emily’s homework, review vowel sounds and syllables, read sentences, spell words and nonsense words with emphasis on sounds and syllables. She did not, in that lesson observe finger spelling, syllable and sound tapping (JJ). She also did not see the teacher use phoneme or word cards (JJ, but see JK). Ms. Timmel believed that the Wilson instruction was not appropriate for Emily because the teacher was not appropriately certified (JJ, Timmel).

8. Mother received Ms. Timmel’s observation report on or about February 24, 2004 and sent it to Bedford (JJ). The TEAM9 met on March 10, 2003. The TEAM proposed that Emily be put into a lunch group and that she receive summer services. Bedford also agreed that the current Wilson instructor would incorporate finger tapping into her lessons, but did not change Emily’s Wilson instructor feeling that it would be ill advised given Emily’s generalized anxiety disorder and the warm rapport between teacher and student; see (JK). Emily remained in this program pursuant to an accepted IEP. Her report cards show A and B grades with improvement needed in phonics and spelling (JO). Her 4 th grade teacher noted that Emily was taking responsibility for her learning, was becoming more comfortable with her teachers and peers, was motivated by her own efforts to balance independent work with offered support and was taking risks socially in groups (JO). Her special education teacher reported that Emily continued to experience anxiety when reading aloud, had difficulty decoding multisyllable words that had exceptions and continued to need assistance identifying and correcting misspelled words in her writing; however she did make progress in use of reading strategies, decoding text, spelling phonetically regular words in isolation, and use of graphic organizers in her writing (JN). MCAS scores show proficient scores in language arts in 3 rd grade with a needs improvement score in 4 th grade due to writing that needed more development and grammar errors; see (JF, JM).

9. Emily received summer services with a Wilson certified tutor and continued at the Lane School for 5 th grade in Ms. Zavelick’s class (Mother, Zavelick). Ms. Cohen and Ms. Foley provided special education support to Emily for four 30-minute sessions per week in language arts. This consisted of checking in with Emily and her teacher, working with her on reading fluency and multiplication, reviewing and assisting in homework, spelling and notetaking, helping her organize long term assignments and implementing accommodations (Foley, Zavelick, Cohen). Ms. Foley also provided Emily’s Wilson instruction (Foley)10 (Mother, Cohen, Foley). Ms. Cohen and Ms. Zavelick cotaught in all of Emily’s writing, math and reading periods (Zavelick) where both would foster discussions, review, check and give homework and provide flexible groupings in math or other subjects if needed (Zavelick). Mother communicated with the teachers regarding Emily’s continued anxiety regarding testing and public speaking; see e.g. (JP, JR, JJJ). She also, on two occassions, notified the teachers of her concerns regarding one current events assignment and one in class assignment and modifications were made (Zavelick, Cohen). However, Mother was generally pleased about how well Emily was settling into 5 th grade (Cohen, see JR). Emily’s anxiety during school testing and reading aloud lessened during that year and even when excused from a requirement to recite the Preamble, voluntarily recited it with her friends and remained calm and even amused when she stumbled over the word “prosperity” (Mother, Zavelick, Foley, see JR, JBB, JJJ). She was able to complete all other homework. During 4 th grade MCAS testing Emily was crying and upset requiring Ms. Foley to scribe for her in order to complete testing (Foley). Whereas Emily had achieved needs improvement and warning scores in 4 th grade, she was confident during 5 th grade Stanford achievement testing, and received average to above average scores in all areas but numerical relations, math computation and capitalization (JS, see JR, Foley).11 (Foley, see JS). She was also confident during 5 th grade MCAS testing and no scribing was needed nor provided (Foley).

10. Emily received a special education progress report from Ms. Cohen in November 2003 (JBB). Ms. Cohen noted that Emily read fairly smoothly in a 1:1 situation with a teacher that she was comfortable with and with text that she believed would be easy to understand; Id. However, when reading in front of other students, Emily became more anxious which contributed to reading that was choppy. She also noted that Emily had some difficulty decoding the social studies text but improved when the material was previewed and when prompted. Ms. Cohen also noted that Emily only needed occasional review of syllables with “C-le” and was working on decoding hard and soft “g” and “c”; Id. Ms. Cohen noted that Emily brought thoughtful and creative ideas to her writing but was hesitant about sharing these ideas and putting them on paper; however, Emily was able to write when given a template and when participating in discussion (JBB).

11. Emily received a private evaluation from Marion Sanders on November 12, 2003 (JP). Dr. Sanders received an Ed.D in psychology in 1964. She taught a special education class in Newton from 1956-1960 (JDD, Sanders). She taught at the University level in the late 1960’s –late 1970’s and has taught and consulted to schools and parents on reading difficulties (JDD). Mother and Father were concerned about Emily’s ability to progress in a middle school environment (Mother, see (JP). Dr. Sanders has been retired since 1997 and has not observed a program since approximately 1995 or 1996 (Sanders). Dr. Sanders did agree to do this evaluation when contacted by Mother who received her name from one of Emily’s older sisters’ service providers (Mother). Dr. Sanders interviewed Mother, reviewed prior school and MGH evaluations and administered the Test of Word Reading Efficiency (TOWRE), the Wide Range Achievement Test (WRAT) and the Gray Oral Reading Test (GORT 4). She did not talk to any of Emily’s teachers (JP, Sanders).

12. Emily was cooperative but less than eager to be evaluated (JP, Sanders). She was able to recognize familiar words, including many multi-syllablic and irregular words; but missed a number of easier words because of inaccurate decoding and a lack of context that would have helped her to self-correct her errors (JP). On the TOWRE Emily received a SS of 85 (18 th percentile) (GE 2.8) in decoding real words and a SS of 83 (13 th percentile) (GE 2.2) in decoding nonsense words. Her spelling scores on the WRAT were on a second grade level (JP). Emily was able to achieve good rate when reading easy passages; however her rate slowed when reading 3 rd and 4 th grade material, misreading, but self-correcting many words. She also was not able to read a number of words. Dr. Sanders assessed her reading comprehension to be on a 6 th grade level with speed and accuracy scores on a third grade level with errors reading consonant blends, silent e and some vowel combinations (ai). In addition, a number of words were misread because of reversals in letter sequence. Dr. Sanders found that Emily had good sight recognition but poor visual memory. She did not make specific recommendations but offered to meet with Emily’s teachers to consider possible ways to improve her skills; (JP).

13. The TEAM reconvened on December 10, 2003 to review Emily’s progress and Dr. Sanders’ report (JQ). Dr. Sanders was part of the TEAM; Id. Emily’s teachers felt that Emily had made a great adjustment to 5 th grade, was enjoying school, developing friendships and was comfortable with the curriculum (JQ). At the time of the TEAM meeting Emily was receiving A’s in all subjects with the exception of a B grade in science (JQ). Dr. Sanders reviewed her testing stating that Emily was improving but that her single word decoding was in need of continued improvement. Dr. Sanders suggested adding additional repeated readings and additional drill on word lists containing blends and the long “e” to Emily’s individual support time along with additional drill on word families and multiplication table practice. These suggestions were incorporated into the IEP; see (JQ).

14. The TEAM reconvened on February 5, 2004 at Mother’s request. Ms. Sanders and Parents’ advocate were members of the TEAM. Mother informed Bedford that she was applying to the Carroll School for the fall of 2004 and requested that Bedford fund this placement (JT, Mother). Bedford felt that Emily was making progress in Bedford because she was happy, volunteered and participated willingly in class (JT, Foley). Ms. Zavalick also reported that Emily had volunteered to read in class, was becoming more and more of a risk taker and was better able to tolerate changes in routine (JT, Zavalick, Foley). She also reported that Emily was now able to construct multi-paragraph pieces that were organized and contained appropriate detail. She also did report however that Emily’s spelling continued to need improvement and that although Emily was less anxious, anxiety still continued to be an issue during testing (JT). The TEAM also reviewed Emily’s February 2004 WADE scores (Wilson Assessment of Decoding and Encoding) finding 100% accuracy in consonants and welded sounds, 89% accuracy in digraph/trigraph, 55% accuracy in vowels and 4% accuracy in additional sounds; see (JV). These scores showed an 8% increase in consonants, a 22% increase in digraph/trigraph, a 17% increase in vowels and a 4% increase in additional sounds; see (JV). Dr. Sanders and the advocate felt that Emily’s remediation had not moved along quickly enough making it difficult for Emily to keep up, especially in middle school (JT, Sanders). There was no discussion of programming recommendations at the John Glenn Middle School because the advocate asked that the meeting be terminated and indicated that Parents would be filing for hearing (JT).

15. Carroll School conducted testing on February 12, 2004 (JEE). The results were not given to Parents until June 2004 and not shared with Bedford until that time. Emily was visibly anxious during testing. The Carroll evaluator gave Emily a stress ball and a lot of positive reinforcement. These tools seemed to reduce Emily’s anxiety as testing went on (JEE). When tested on the Burns & Roe informal reading inventory, Emily was able to read 95% of the third grade lists with 80% comprehension. She read 99% of the fourth grade lists but only was able to comprehend 50% of the material (JEE). Upon review Dr. Sanders felt that this lower comprehension score was due in part to her exceptionally slow rate of 61 words per minute, a rate exceptionally below the 151 words per minute of the average 5 th grader (JEE, Sanders). Carroll also administered the GORT (JEE). She achieved total rate and accuracy scores in 16 th percentile (SS 7, GE 4.0) (accuracy) (SS 7 GE 3.7) (rate), fluency scores in 9 th percentile (SS 6 GE 3.4) and comprehension scores in the 63 rd percentile (SS 11, GE 7.0).

16. Emily received her second special education progress report from Ms. Cohen in February 2004 (JBB). Ms. Cohen incorporated Ms. Sanders recommendations for a repeated reading program of level stories from grade 2-5, charting the number of words Emily was able to read in a minute, recording the amount of time it took to read a passage and generating a list of words that Emily needed to review and answering several comprehension questions from the passage (JBB). Ms. Cohen also reviewed multiplication tables with Emily. During Wilson instruction Emily was able to successfully decode and encode all r-controlled words in isolation and could successfully encode words containing “ar” and “or”. She was motivated to work on rules of syllabication, sound clusters and decoding of spelling of “ir”, “er”, “ur”, “ge”, “ci”, “cy”, “ge” and “gy” (JBB). Her confidence in reading aloud continued to grow and she contributed in whole class discussions and in literature circles. Her writing ideas and her content was on par with her classmates although her in class writing was often brief. Emily continued to struggle with spelling but was able with support and/or use of the computer to locate and correct her errors.

17. Bedford conducted the agreed to testing in February-March 2004; see (JU, JV). Ms. Foley conducted educational testing was completed in four separate sessions. Even though Emily was familiar with Ms. Foley because she had worked with her in 5 th grade, Emily was uncomfortable at the beginning of each session. However, she became more comfortable as testing proceeded (JU). On the WIAT Emily scored in the 23 rd percentile (SS 89, G.E. 3.8) in word reading. Her scores in pseudoword reading were in the 47 th percentile (SS 99, G.E. 4.2) with reading comprehension scores at the 88 th percentile (SS 118, G.E. 8.5). Her WIAT mathematical reasoning scores were at the 53 rd percentile in numerical operations (SS 101, G.E. 5.5) and at the 73 rd percentile in math reasoning (SS 109, G.E. 6.5). She scored in the 30 th percentile in spelling, increasing from the 16 th percentile when the test was done in November 2002 (SS 90, G.E. 4.2); compare (JV, JFF).12 Emily also increased her previous November 2002 testing scores in word reading with a jump from the 12 th to the 23 rd percentile and jumped from the 50 th to the 88 th percentile in reading comprehension. She also made gains in pseudoword decoding, jumping from the 21 st to the 47 th percentile; compare (JFF, JV).13 In numerical reasoning Emily jumped from the 42 nd percentile to the 53 rd percentile; however her math reasoning fell from the 88 th to the 73 rd percentile; Id. On the Wilson Assessment of Decoding and Encoding (WADE) Emily, in February 2004, achieved 71% accuracy in consonants, 100% accuracy in digraph/trigraph, 89% accuracy in vowel, 4% accuracy in additional sounds and 100% accuracy in welded word encoding and decoding. Comparison of scores on the WADE done in March 2003 showed gains of 17% in consonants, 8% in digraph/trigraph, 22% in vowels and 4% in additional sounds (JV). In real word encoding and decoding Emily achieved 89% accuracy, 73% accuracy in nonsense words and 99% accuracy in sight words (JV). These scores were felt to be valid by Bedford and confirmed valid by Ms. Sanders after she examined the protocols (Sanders, Foley). Emily’s February 2004 scores constituted gains of 24% in real words, 36% in nonsense words and an 11 percent increase in encoding and decoding sight words (JV). Similar to testing done with Ms. Sanders, Emily was cautious and thoughtful with reading ranging from smooth and flowing for familiar text to a halting style for words that are difficult for Emily to decode. However even when reading difficult material Emily was able to self correct and reread information and had fluency scores in the 26 th percentile (JV).14 The evaluator ended her four days of testing with a formal written assessment; however some of the testing had to be abandoned because Emily could not write a passage despite several prompts. However the evaluator also assessed Emily’s writing through discussions with teachers, review of her portfolio and other formal testing. Emily’s teachers reported that Emily, when overwhelmed, had difficulty getting started on writing assignments and required assurances that her writing was right once an assignment was begun. However, once Emily was able to begin writing she was able to organize her writing using voice, detail, closing, capitalization and punctuation and throughout the year had expanded her writing using multiparagraphs, use of dialogue and more detail (JV). In formal testing Emily was able to recognize errors in word usage and possessed grade level15 knowledge of punctuation skills including periods, question marks, commas and apostrophes and was, in her writing, able to appropriately use periods, question marks, exclamation points, commas, quotation marks, dashes and apostrophes (JV). The evaluator noted that further instruction on the use of commas and semi colons was needed; Id. The evaluator recommended that Emily continue to receive supported mainstreaming opportunities as well as specialized instruction. She also recommended that language arts be team-taught, that Emily’s Wilson instruction continue and that Emily receive instruction in fluency and writing. She noted that Emily may benefit from receiving a supportive study to address any homework concerns, provide overview of long term assignments and provide an additional opportunity for reading or writing if needed (JV).

18. Bedford also conducted psychoeducational testing on March 4, 2004 and March 9, 2004 (JW). The school psychologist (Jane Riley) reviewed previous school and private testing and readministered the WISC-III, the Revised Children’s Manifest Anxiety Scale (RCMAS) and the Behavior Assessment System for Children (BASC), and conducted a diagnostic interview of Emily (JW). The first time Emily was to be tested she arrived in tears with her teacher. The testing was rescheduled for two separate 2 ½ hour testing sessions (JW). She approached the testing with some trepidation but after meeting with initial success on the WISC-III was able to calm down and work diligently and well for the remainder of the sessions. Ms. Riley noted however that Emily’s confidence was easily shaken and that when this occurred Emily tended to freeze and/or give up quickly and pretended that she didn’t care (JW). However, when Emily was able to figure out what to do or how to begin and could relax she was able to systematically and methodically approach the testing problems (JW). On the WISC-III Emily achieved a verbal IQ of 106 and a performance IQ of 98 and like previous testing done in November 2001 had a significant amount of scatter on the verbal subtests (i.e. high average scores in verbal comprehension, freedom from distractibility low average). The evaluator concluded that Emily continued to function in the average range of intelligence with a relative weakness in her processing speed and although improved from November 2001, a significant weakness in her freedom from distractibility (JW). Emily also displayed an elevated anxiety score; however she displayed adaptive skills in the average range. The evaluator found that Emily’s anxiety was in part due to her stated desire to stay in the public schools and in part due to her anxiety about her academic difficulties which when displayed interfered with her ability to develop her academic skills (JW).

19. The TEAM reconvened on March 25, 2004 to consider evaluations and develop a program for Emily. The TEAM recommended that Emily continue with her current program for 5 th grade and receive a 6 th grade program at the Middle School that was comprised of team-taught classes in language arts and math for four out of five periods per week, team-taught social studies and science for one period each per week, instruction in the learning center for one period per week, continued Wilson instruction for three periods per week and instruction in reading fluency for two periods per week. The TEAM also considered counseling for Emily but decided that Emily would benefit more from consultation from the school adjustment counselor to the teachers regarding use of “teachable moments” to provide feedback, guidance and support (JX). The IEP also included a number of accommodations; see (JX). Parents rejected the IEP (Mother).16

20. Ms. Timmel reevaluated Emily on April 6, 2004 (JY). She did not review Emily’s work samples, talk to Emily’s teachers, observe Emily’s program or review the curriculum or textbooks that Emily would be using (Timmel). Ms. Timmel found that Emily easily separated from Mother reporting that she had had a lot of testing (JY, Timmel). Ms. Timmel administered the Rosner and the Phonological Processing subtest of the Nepsy (JY). Emily scored at the late first grade level on the Rosner and obtained a scaled score of 4 on the Phonological Processing subtest. Her performance on reading general sight words on the WRAT-3 was within the 3 rd grade level with decoding skills as measured by the Woodcock Form G falling at a grade equivalency17 of 3.2 for rate, and a G.E. of 2.7 for fluency and accuracy (JY). Ms. Timmel found that Emily’s reading comprehension was at a 3.7 G.E. with spelling skills at a 5 th grade level and a writing score of 3.2 G.E. Ms. Timmel felt that Emily would not be able to handle 6 th grade work due to the gap between her reading skills and her grade level, that Emily would be unable to decode her textbooks and would, for at least the short term, require an integrated language based program devoted to children with dyslexia (JY, Timmel). Dr. Sanders agrees with Ms. Timmel (Sanders).

21. Ms. Cohen issued a final 5 th grade progress report in April 2004 (JBB). In her Wilson lessons, Emily could successfully decode shorter words but did transpose longer pattern combinations. Ms. Cohen noted that Emily made progress decoding oral material taken from literature, the read naturally program and nonfiction text from classroom assignments and had, as of April 2004 solidly reviewed the multiplication tables through the “7’s”. Ms. Cohen also noted that Emily continued to need encouragement to help her maintain her motivation through the writing process as she did not always feel confident enough in her ideas to take the time to generate adequate detail (JBB). Ms. Cohen also noted that in the past weeks Emily’s energy for certain day to day assignments had lessened (JBB). When Ms. Cohen questioned Emily about this, Emily told her that she was reacting to the stress of possibly going to a private school that she did not want to attend (Cohen, see also JW).

22. The TEAM reconvened on May 3, 2004 to consider Ms. Timmel’s evaluation (JZ). Bedford did not feel that Ms. Timmel’s testing was consistent with Emily’s work performance and continued to recommend a program at the Middle School (JZ).

23. Emily ended the fifth grade with A’s and B’s in all subjects (JAA). She was able to complete homework pursuant to the teacher’s homework policies and expectations and achieved good marks on her classroom assignments based on solid work (JHH, JII, Zavalick). Her teacher noted that Emily had improved greatly on reading comprehension and writing, was adding many more details to written tasks and open response questions, had a firm grasp on mathematical ideas and concepts and was generally able to keep calm about her work even when it was difficult (JAA, Zavalick).

24. For 6 th grade, Bedford recommends that Emily attend the John Glenn Middle School. If Emily attends the middle school she would be receiving Team English for eight class periods per week, Team Math for four class periods per week and Team Science and Team Social Studies for one weekly class period each (JX). She would also be receiving pull out phonics support for three class periods per week, pull out reading support for one class period per week and writing support for an additional class period per week. She would also receive special education support for three additional periods per week in the learning center. Emily’s teachers would also receive 15 minutes of weekly consultation in academics from the special education staff. Her teachers would also receive an additional fifteen minutes of weekly consultation from the school adjustment counselor to learn anxiety-reduction strategies that Emily could immediately use to relieve stress (JX). The school adjustment counselor would also be available to Emily on an as needed basis (JX, Krager). The proposed 6 th grade IEP adds the psychological consultation and adds two additional periods of pull out special education support. The proposed IEP also calls for three additional weekly sessions of in class special education support in language arts and in class support in math, science and social studies; see (JX, Cohen, Zavalick, Kraeger). Emily’s 5 th grade teachers recommended this increase in services to allow Emily to successfully transition to a middle school schedule with varied teachers and a more challenging curriculum (Cohen, Zavelick).

25. Emily would receive her individual Wilson instruction and individual reading support five times per week from Robin Talkowski (Talkowski).18 Ms. Talkowski would also provide fluency instruction through the Wilson, Great Leaps and other programs. Dr. Talkowski’s goals for Emily would be to increase her decoding, fluency and spelling skills and increase her functional literacy through instruction, preview, review and reinforcement of material. She would also consult with Emily’s teachers to share information regarding what Emily was working on in her inclusion and special education classes and share strategies and training regarding accommodations that Emily would need to succeed (Talkowski).

26. Trisha Kraeger19 would be Emily’s 6 th grade Team-Teacher traveling with Emily and her sixth grade class to her academic subjects as indicated on her IEP (Kraeger). Ms. Kraeger has co-taught for three years and is familiar with working with Emily’s proposed teacher; Id. She and the teacher would provide a variety of co-teaching strategies, including provision of role modeling by one while the other is providing visual or auditory instruction, teaching in flexible groupings to ensure that students access the material, instruction on note taking and provision of accommodations in class (Kraeger).

Ms. Kraeger would also be providing special education support to Emily in the learning center three times per week and would provide direct instruction and additional support in writing for one period per week (Kraeger). In the learning center Ms. Kraeger would provide preview and review of material covered in class, provide instruction in study skills, such as note taking, and would help Emily learn to use her daily and monthly calendar to organizing daily and long term assignments (Kraeger). Ms. Kraeger would also be responsible for checking in daily with teachers regarding homework and would provide adjustments to homework if needed so that the work load (but not the curriculum) is reduced (Kraeger). Ms. Kraeger would also work with the regular education team-teacher to provide accommodations in Emily’s classes. In 6 th grade textbooks are read aloud the majority of the time. Emily’s textbooks could also be supplemented with CD-ROMS that highlight and provide an auditory component to the text. Ms. Kraeger also has access to and has used books on tape and supplementary material that provide the same content but would be at a 3 rd or 4 th grade reading level. Lastly, Ms. Kraeger, as the 6 th grade liaison, would be a contact not only between Emily and her teachers but would provide information regarding school to Emily’s parents as well (Kraeger).

27. Lore Kantrovitz, ED.D., is a licensed psychologist with over thirty years of experience; see (JCC). She currently is a clinical instructor at the Learning Evaluation Clinic at McLean Hospital in Belmont, MA and is also in private practice specializing in clinical psychopharmacology, family therapy and nueropsychological evaluations (Kantrovitz). She has testified at the BSEA on one other occasion on behalf of the parents; Id. Dr. Kantrovitz, reviewed Emily’s educational testing, work samples and other records and observed Emily’s proposed program at Bedford’s request (Kantrovitz). She concluded that Emily’s WIAT scores administered by Bedford show that Emily had made a lot of progress especially in reading comprehension, single word reading, decoding and spelling (Kantrovitz, see also (JV). She was however concerned that between Dr. Sanders’ November 2003 testing, Carroll’s testing in February 2004 and Ms. Timmel’s testing in April 2004, Emily had been assessed on the GORT three times in a six month period. Standard practice is to wait a year before using the same testing instrument because repeated testing affects the test’s validity. In addition, the repeated testing unnecessarily increased Emily’s anxiety also possibly affecting the testing results (Kantrovitz). She was also concerned that some of Ms. Timmel’s and Dr. Sanders’ testing contained only grade equivalents, because grade equivalents do not provide good comparison, not only because another evaluator does not have the same data to work with, but because use of grade equivalents make small differences in performance look like big differences and can be misleading (Kantrovitz).

28. Ms. Kantrovitz also reviewed Emily’s work samples. Although these samples did contain errors in spelling and punctuation, her writing contained well-developed complex ideas that demonstrated that she understood the content of what was being assessed (Kantrovitz). In addition, Emily’s test scores and grades also indicated that she understood the material presented in 5 th grade. As such, Dr. Kantrovitz concluded that Emily had made progress in the 5 th grade; Id.

29. Dr. Kantrovitz also reviewed Emily’s IEP and conducted a 2 ½ hour observation of the proposed sixth grade program (Kantrovitz). She found the 6 th grade program to be a comprehensive program because it included individual instruction in decoding, fluency and spelling and exposed Emily to a broad curriculum in a general education setting with appropriate supports. Dr. Kantrovitz observed that, in the learning center, Ms. Kraeger did a good job of breaking down complicated content into manageable units and provided appropriate supplementary materials so that the children could function independently. She also observed that the children in the learning center responded positively to Ms. Kraeger’s enthusiasm and her warm and encouraging style; Id. When coteaching, Ms. Kraeger (and the regular education teacher) provided a lot of structure and support in the classroom going from group to group giving tips, instruction and positive reinforcement. Dr. Kantrovitz found that the children were comfortable in the classroom and comfortable using the technology provided and were familiar with the materials because they had worked on them in the learning center; Id. Dr. Kantrovitz believed that Emily would be successful in this program because she has strong comprehension skills and would have the appropriate accommodations, support and technology to access the curriculum (Kantrovitz).

FINDINGS AND CONCLUSIONS

At issue is whether the program and services that Bedford proposes for Emily’s 6 th grade year at the John Glenn Middle School provide a free appropriate public education (FAPE) in the least restrictive environment (LRE).

THE FAPE STANDARD

Under the federal FAPE standard, an educational program must be provided under an IEP that is tailored to the unique needs of the disabled child and meets all the child’s identified special education and related service requirements. This includes academic, physical, emotional and social needs; 34 C.F.R. 300.300(3)(ii); Lenn v Portland School Committee , 910 F. 2d 983 (1 st Cir. 1990), cert. Denied, 499 U.S. 912 (1991) and Burlington v Mass. Dept. of Education, 736 F. 2d 773, 788 (1 st Cir. 1984). In addition, the IEP must be reasonably calculated to provide a student the opportunity to achieve meaningful educational progress. This means that the program must be reasonably calculated to provide effective results and demonstrable improvement in the various educational skills identified as special needs; Roland v Concord School Committee , 910 F. 2d 983 (1 st Cir. 1990).

LEAST RESTRICTIVE ENVIRONMENT (LRE)

In addition to meeting the above standard, special education and related services must be provided in the least restrictive environment. This means that to the extent appropriate, students with disabilities must be educated with children who do not have disabilities. Programs and services can only be implemented in separate settings when the nature and severity of the child’s special needs is such that the student can not make meaningful progress in a regular education setting even with the use of accommodations and specialized services; see 20 U.S.C. 1412 (5)(A). In Massachusetts, the IEP must also enable the student to progress effectively in the content areas of the general curriculum; 603 CMR 28.02 (18). Massachusetts has defined “progressing effectively in the general education program” as “mak[ing] documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to the chronological age and expectations, the individual educational potential of the child and the learning standards set forth in the Massachusetts curriculum frameworks and the curriculum of the district”; Id.

After review of the documents and testimony presented in this matter, I find that Emily’s proposed IEP is reasonably calculated to allow Emily to make meaningful educational progress. I further find that Emily’s proposed program at the 6 th grade program at the John Glenn Middle School is the least restrictive environment for Emily.

Parents do not dispute that Emily has made progress since receiving special education services. Emily’s work samples, comparison of achievement tests, progress reports, grades and testimony from her teachers and Ms. Kantrovitz support this conclusion. Parents however are concerned that Emily will not be able to access a middle school curriculum due primarily to her decoding deficits. They are also afraid that in addition to falling behind, she will become lost in the school and anxious due to the change of classes and teachers for all academic subjects.

Parents’ concern is understandable. A transition to middle school can be nerve racking for any child and parent, but may be more so for parents and children when the children have disabilities especially those who will be included with their middle school peers. However, the evidence shows that Emily was, with pull out assistance in decoding and fluency, and consultation and team-teaching in language arts able to make effective progress in 5 th grade. In 6 th grade Emily will receive more coteaching in language arts, as well as cotaught classes in math four days per week and cotaught science and social studies each for one day per week. Emily will also continue to receive Wilson instruction as well as additional pull out instruction in reading, writing and academic support. Emily’s teachers will also receive consultation from the special education staff and the school adjustment counselor. Emily will additionally have access to the school adjustment counselor when needed. Dr. Kantrovitz observed Ms. Kraeger coteach students with Emily’s profile. Dr. Kantrovitz also observed Ms. Kraeger in the learning center. She found both her coteaching and pull-out instruction to be effective. Both Ms. Kraeger and Dr. Talkowski presented as qualified and dynamic teachers who would be able to implement Emily’s program.

The Parents’, Ms. Timmel’s and Dr. Sanders’ opinions have been considered. However, neither Parents nor their evaluators have observed the proposed 6 th grade program. Both evaluators based their conclusions on assumptions of what an inclusion program could offer Emily as well as on testing that was flawed. Ms. Timmel administered the same test (the GORT) that had been previously administered a few months prior, thus affecting its validity. She also based her conclusions on comparison of grade equivalents which can be misleading. In addition Emily was anxious during Ms. Timmel’s, Dr. Sander’s and the Carroll School testing. Dr. Kantrovitz and Ms. Foley (as well as Emily’s 5 th grade teachers and Mother) all agree that Emily gets anxious during testing. Dr. Kantrovitz and Ms. Foley’s assertion that this anxiety could affect the test scores was credible. Conversely, Emily did show improvement on the Wilson Assessment of Decoding and Encoding (WADE). In addition, comparison of WIAT testing in November 2002 and February 2004 show growth in Emily’s reading comprehension, math reasoning, spelling and pseudoword decoding. Dr. Sanders, after looking at the protocols, found these results to be valid.

Finally, Ms. Kraeger will serve as a liaison not only for Emily so that she will not get lost with multiple teachers, but will also be a liaison for Parents to address any concerns with homework or any issues that Emily has in class. With all of these supports in place, the evidence shows that the IEP as configured will provide Emily with a Free Appropriate Public Education (FAPE) in the Least Restrictive Environment (LRE).

ORDER

The IEP designating a team taught inclusion program with pull out language arts support and consultation, along with access to the school adjustment counselor will provide Emily with a FAPE in the LRE. As such Parents’ request for an IEP designating the Carroll School is DENIED.

By the Hearing Officer,

Joan D. Beron

Date: July 21, 2004


1

Emily is a psuedonym used for confidentiality and classification purposes.


2

On June 28, 2004 Parents waived their right to submit a written closing argument; see Correspondence Augustine, June 28, 2004.


3

The Parties have stipulated that if the program can not be made appropriate, Bedford will place Emily at Carroll School.


4

Emily is an excellent horseback rider, riding daily at a farm near her home.


5

Emily’s word reading scores on the WIAT were at the 18 th percentile (standard score 86) with pseudoword scores at the 16 th percentile (SS 85) Spelling scores were at the 30 th percentile (SS 92) (JD). Emily’s phonological processing on the Lindamood Test of Auditory Comprehension was equivalent to the suggested minimum for 1 st grade (JD)


6

At home Emily refuses to read aloud to Mother (Mother). At school Emily becomes more anxious if asked to read aloud in a group but has improved in this area (JG, JI).


7

The grade equivalent rose from 1.9 to 2.5 in word reading and from a 2.2 to a 2.3 GE in spelling (JFF).


8

Ms. Timmel is a licensed educational psychologist and certified elementary school teacher. Ms. Timmel’s teaching experience is as a substitute and tutor including Wilson instruction. Ms. Timmel has no Wilson certification (JJ, JDD).


9

Ms. Timmel participated in the TEAM meeting (JL, Timmel).


10

Ms. Foley was Emily’s TEAM chairperson and provided her Wilson instruction in 5 th grade for four 30-minute sessions per week. Ms. Foley is Wilson certified (Foley).


11

Emily received accommodations of additional time, testing in a small group and directions or questions read aloud or clarified. She received no accommodations in reading comprehension.


12

Spelling scores on the Woodcock-Johnson III were at the 42 nd percentile (SS 91, G.E. 4.1).


13

Woodcock Johnson scores in word attack were similar (42 nd percentile, G.E. 4.7) (JV).


14

In November 2003 Ms. Sanders assessed Emily’s fluency to be on a 3 rd grade level using a different test instrument (Sanders).


15

Emily’s editing skills as tested on the Woodcock Johnson III were found to be at the 61 st percentile (SS 104, G.E. 6.7) with punctuation and capitalization at the 62% percentile (SS 105, G.E. 6.3).


16

The TEAM inadvertently did not discuss continuation of summer services that Emily had received but continued to recommend them and included them in the IEP giving Parents and other TEAM members the option of reconvening the TEAM to discuss summer programming; see (JX). Summer services were addressed at a TEAM meeting on May 5, 2004; see (JZ).


17

Ms. Timmel uses and compares grade equivalents feeling that they are a valid indicator of progress (Timmel). Dr. Sanders and Bedford staff does not feel that grade equivalents are as substantially reliable as comparing standard scores or percentile ranks; see e.g. Sanders.


18

Dr. Talkowski has been a Reading Specialist at the John Glenn Middle School since 1990. She is Wilson certified and certified by DOE in all levels of reading. Dr. Talkowski also has approximately thirty years experience in education and mental health; see (JCC).


19

Ms. Kraeger is a certified Master’s level special education teacher (JCC).


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