Student v. Dennis Yarmouth Regional Schools – BSEA #03-4447



<br /> Student v. Dennis-Yarmouth Regional Schools – BSEA #03-4447<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

Student v. Dennis-Yarmouth Regional Schools

BSEA #03-4447

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 regulations promulgated under said statutes.

A hearing was held on November 19, 2003 at the Bureau of Special Education Appeals, before Catherine M. Putney-Yaceshyn, Hearing Officer.

PROCEDURAL HISTORY

Parents requested a Hearing on April 29, 2003 and a Hearing was scheduled for May 16, 2003. The School requested a Postponement of the Hearing on May 6, 2003, which was granted and a Pre-Hearing Conference was held on May 19, 2003. There were telephone conference calls on June 13, 2003, September 11 and September 29, 2003. A Hearing was scheduled for October 14, 2003. The Parents requested a postponement of the Hearing on September 30, 2003 which was granted. The Hearing was scheduled for November 7, 2003. There were telephone conference calls on October 24 and November 3, 2003 and the Parties’ joint request for postponement was granted. The Hearing was scheduled for November 19, 2003.

On November 17, 2003, the matter was administratively reassigned to Hearing Officer, Catherine Putney-Yaceshyn. The Hearing was held on November 19, 2003. After the close of testimony, the parties agreed to submit written closing arguments by December 9, 2003. Both parties submitted their closing arguments on December 10, 2003 and the record closed.

Those present for all or part of the Hearing were:

Student’s Mother

Student’s Father

Beth Crowell Parents’ evaluator

Kathryn McEwen Parents’ evaluator

John J. Harrington1 Parents’ psychologist

Toni Saunders Advocate for Parents

Leslie Carson Wilson tutor

Ann Wolf Special Education Teacher, M.E. Small School

Dianne O’Connell Consulting Teacher of Reading, Dennis-Yarmouth

Fred Stein School Psychologist/Team Chair, Dennis-Yarmouth Kelly Dunn Special Education Teacher

Daniel Kennedy Director of Special Services, Dennis-Yarmouth

William Butler Attorney for Dennis-Yarmouth Regional School District

Catherine M. Putney-Yaceshyn Hearing Officer

The official record of this hearing consists of jointly submitted documents marked J-1 through J-24 and approximately 6.5 hours of recorded oral testimony.

ISSUES

1. Whether the IEP proposed for the period March 7, 2003 to March 7, 2004, and the IEP amendment dated June 9, 2003, are reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment.

2. If not, whether Student requires instruction using the Wilson Reading Method to receive a free appropriate public education in the least restrictive environment.

SUMMARY OF THE EVIDENCE

1. The student (hereafter, “Student”) is a nine-year-old fourth grade student residing in West Yarmouth, Massachusetts, within the Dennis-Yarmouth Public School District (hereafter, “D-Y”). Student has been determined to be within the average to high average range of intellectual functioning. Student’s capacity to process information was assessed within the superior range. His comprehension-knowledge and auditory processing are also in the average range and his long-term retrieval is in the low average range. Student’s oral expression and listening comprehension are average for his age. Student has a diagnosis of language-based learning disability or dyslexia and is on medication for ADHD. (J-18, Father) Student has difficulty in organizing multiple items and may have difficulty processing lengthy or complex information. Results of Auditory Processing testing were consistent with an Auditory Output Organization Deficit. (J-5) Student’s language skills are in the average to above average range. He has strong expressive and receptive language skills and vocabulary knowledge. Testing revealed a mild word retrieval problem and below average rapid naming skills. His phonological awareness skills were assessed in the low average to average range. Student is described as motivated and eager to please. (J-15)

2. Beth Crowell testified that she evaluated Student on January 22, and 27 and February 3, 20032 . (J-4) She testified that Student had a significant weakness in the area of long-term retrieval which she found quite significant given Student’s significant strength in processing speed. (Crowell) She noted with concern that when Student completed cognitive portions of the test he was enthusiastic and enjoyed the different tasks, but when the tasks were more “academic in nature, his attitude changed drastically in that he complained about the tasks, sighed often and pushed his chair away from the table asking if he could leave.” (J-4, Crowell)

3. She recommended that Student receive a “highly structured, phonetically based multi-sensory approach to reading that provides much repetition and review to insure mastery.” She also recommended steps to take to increase Student’s confidence in his reading and writing abilities3 . She indicated that Student requires a “multi-modal approach that spirals and revisits skills in order to establish them in his long term memory.” She recommended Student receive additional explanations of directions and frequent comprehension checks. She testified that she attended the March 2003 Team meeting and reported that Student was basically a “non-reader” based upon her testing results. She testified that she compared Student’s scores on the Woodcock-Johnson from October 2001 with her own results from January or February 2003 and was concerned that his progress was not what she would have hoped. (Crowell, P-4, P-22) Ms. Crowell testified when she tested him in January and February 2003 Student had made some progress. However, she would have hoped that he would have made at least one year’s progress. She testified that she has not observed him in his current placement at D-Y. (Crowell)

4. The Team convened on March 7, 2003 and proposed an IEP for the period from March 7, 2003 until March 7, 2004. The IEP proposed a reading consultation with the special education teacher 1 x 10 minutes per five-day cycle. It proposed direct services from a special education teacher in reading in the general education setting 5 x 40 minutes per week from March 7, 2003 until June 18, 2004. It proposed direct services in reading in a separate setting with the special education teacher 5 x 40 minutes per week from September 8, 2003 until March 7, 20044 . The IEP proposed speech/language 2 x 30 minutes per week for the entire IEP period. The IEP also provided for extended year reading instruction with the “summer staff” 3 x 45 minutes per week from July 7 until July 31, 2003. The IEP contained a number of accommodations5 . (J-15, Stein)

5. Parents rejected portions of the March 7, 2003-March 7, 2004 IEP on April 15, 2003. (J-15) Parents wrote a letter, dated April 15, 2003, to Mr. Stein explaining why they could not accept one portion of the IEP. They did not accept the reading program because they believed Student required a “phonetic based multisensory reading program delivered by a certified reading specialist.” Parents stated their belief that Student required a program “that was designed to teach children with dyslexia to read” such as Wilson or Orton-Gillingham. (J-16; Stein)

6. Ms. Wolf, Student’s third grade special education teacher, testified that she was confused by Ms. Crowell’s statement that Student was a non-reader. She testified that he was reading when he came into the third grade and she read with him daily. He made mistakes in his reading, but they read books together. (Wolf)

7. The Team reconvened on June 9, 2003 to discuss the rejected portions of the IEP. The amended IEP continued to offer a ten minute weekly consultation with the special education teacher in reading; direct reading services in a separate setting with the special education teacher 5 x 40 minutes per week from September 8, 2003 until March 7, 2004; speech and language with the speech language staff 2 x 30 minutes per week. The amended IEP increased the proposed duration of Student’s summer reading services from four weeks to ten weeks. The IEP Amendment also stated that the tutor would provide a “structured phonics program three times a week for forty minutes each session.” It provided for pre-testing using the Wilson and Developmental Reading Assessment and post-testing in September to assess Student’s progress. Parents accepted the IEP amendment on June 16, 2003. (J-17)

8. Ann Wolf testified that she has been a special education teacher at the elementary level in the Dennis-Yarmouth school district for twenty three years. She teaches reading and math to small groups of special education students in second through fourth grade. She worked with Student last year when he was in the third grade. She saw Student every day for thirty minutes and twice per week she also assisted Student with writing in his classroom for thirty minutes. While teaching Student reading, she used a comprehensive reading program that included phonemic awareness, phonics, vocabulary, fluency, comprehension and writing. For phonics she used the SCORE program, a 1:1 sequential phonics program which systematically teaches the mastery of sound blending short and long vowels, blends, dipthongs, two and three syllable words, and other phonetic categories and variance and 65% of the basic sound words. She chose the program after consulting with his second grade special education teacher, Debbie Clemmons, who had used the SCORE program with Student. Ms. Clemmons had chosen the SCORE program after reviewing assessments done on Student and noting that individual letters and sounds were not the best method to use with Student and he learned best by reviewing chunks of words. Toward the end of the year Student did not want to do the program as much as he had at the beginning of the year. She used portions of “Explode the Code” which reinforces the systematic progression of SCORE. He liked that part of the program. Most of the time she worked with Student one on one.

9. Another piece of his reading program was guided reading. They would do a “picture walk” through the book and Student made predictions and they would review vocabulary. Student would read aloud and they would discuss the story when he was finished. Student made progress in reading. At the end of second grade he was evaluated at being at the end of the first grade level. During the year she gave him developmental reading assessments and he was reading at an independent level of K (middle of second grade). By the end of the year (May 2003) he read a level L (end of second grade), but was not independent. He was able to tell her about the story, but his fluency was very slow. He had to work at an instructional level at that level, so she would send home books that were lower than that level (level K) so he could work at an independent level on them at home. Student had good strategies and would realize when a misread word did not make sense and would go back and correct it at the end of a sentence. He was very cooperative and interested in what they were doing. (Wolf)

10. In April or May 2003 Mother called Ms. Wolf because Parents felt that Student was not reading at a level K and they wanted her to tape record him. She thought that would be anxiety provoking and did not think it was a good idea. She told them they could come in and observe a lesson. She prepared a lesson and picked out books on which they had been working6 .

11. Ms. Wolf testified that Student was able to read the level K at an independent level and when a child reads a level independently the program requires that the teacher present him the next level. He passed the comprehension and accuracy level on the Level L, but he needed to improve his fluency by reading more books at that level.

12. Kathryn McEwen testified that she has a Master’s degree in education and reading and she has been tutoring children with special needs and learning disabilities since 1975. She completed an educational evaluation on Student at the request of the Parents and wrote a report based upon her April 14 and 16, 2003 testing7 . (J-7) Her report states that Student “exhibits all the signs of a student … with dyslexia.” She estimated his reading level to be at the end of the first grade or beginning of second grade level when he was at the end of third grade. She wrote that he would benefit from placement in a one-on-one tutoring situation with a reading specialist who has been clinically trained to address his language disability and that the teacher must be experienced “in a systematic, multisensory, sequential, phonetic approach to reading, such as the Orton-Gillingham method8 .” She doesn’t think Student would make effective progress without a phonetic based, multi-sensory approach to reading. She testified that she did not review information from school files, has not seen Student’s IEP and has not met with his teachers or school counselors. She testified that a dyslexic child requires phonics instruction regardless of his or her profile. (McEwen, J-7)

13. Kelly Dunn testified that she is a special education teacher in the Dennis-Yarmouth Regional School District and teaches fourth and fifth grade. She teaches reading, writing, and math in the resource room. She sees Student daily along with four other students. She does a great deal of 1:1 instruction with Student. The approach she uses in helping Student with reading is similar to Ms. Wolf’s. She works on phonemic awareness by tapping and clapping sounds and hearing and rhyming. The phonics is systematic and she uses a lot of repetition. She uses multi-sensory methods such as using tile letters and foam cards that he can manipulate and feel where they go. She teaches vocabulary when doing guided reading. When she explains a word to Student she draws connections to his knowledge. His spelling program incorporates vocabulary. She works on fluency by using shared reading, repeated reading, and guided reading. They work on writing and he uses his reading knowledge and recognition of words in writing and in comprehension. (Dunn)

14. Ms. Dunn testified that for Student to remember a rule she has to help him to make a connection from his knowledge. He needs to learn rules in context. She uses analogies with him. Student benefits from seeing words in chunks because his strength is in making connections to words he already knows and putting them together. In September she received testing results showing he was at level and he recently tested at level K as an instructional level. He’s able to comprehend what he is reading and he is demonstrating more fluency instead of focusing on each word. Ms. Dunn testified that she read with Student this week and he self-corrected. In the classroom he is very comfortable and relaxed and she tries to build on his confidence. She stated that Student is making progress this year in reading. He is now more involved and more attentive than at the beginning of the year. He seems more confident and is comfortable asking questions (Dunn)

15. Leslie Carson testified that she is certified as a special education teacher and a Wilson tutor. During the summer she tutored Student in Wilson and he was cooperative, enthusiastic, and eager to learn how to read and increase his skills. She saw Student approximately three times per week. They completed his 30 sessions in mid-September. She started Student in book 1.1, the first step of the Wilson program. Student is still in book one at step 1.5. There’s one more step, 1.6, and then she will administer a post-test to determine his readiness for step 2. She testified that it takes about one to three years for a student to go through the Wilson program. She thinks Student has made some progress. She testified that Student’s long-term retrieval difficulties impact his ability to progress in Wilson to some extent. They have worked on two letter sounds, x and y and Student still has difficulty remembering the sounds after 45 sessions of tutoring. She now sees him twice per week. He has some difficulty with the “s” and “sh” sounds and continues to have some “b/d” confusion which continues to be a problem when he is decoding words. (Carson)

16. Student’s father testified that now when Student reads to him he does not cry or refuse to read. He often used to ask why he cannot read like the other kids and cried himself to sleep until the middle of last summer. He objects to the school’s proposed reading program because it is not a researched based approach and believes the school is taking parts from different approaches and putting it together in a manner that is not proven to work. He testified that Student is currently happy with reading. (Father)

17. John Harrington, Ph.D., testified that Student was referred to him by his Parents in September 2003. Parents informed him that Student was diagnosed with ADHD and was receiving medication. Dr. Harrington testified that he has seen Student five times between September 12 and November 12. In his report he wrote, “several years of school struggling have resulted in an incipient post-traumatic stress disorder (hereafter, PTSD).” (J-14) During his testimony he clarified that he had mentioned PTSD in relation to Student because he knew it would “raise the level of attention to the distress he’s experiencing as a result of his reading and learning difficulties.” He testified that Student’s psychological functioning has been affected by his learning difficulties and he is considering PTSD a rule-out diagnosis9 . He testified that on November 3 Student talked about his reading improving and said he was starting to feel smart. He has not reviewed Student’s school records, spoken to any teachers or school counselors, or observed Student in his placement. He recommended that Student continue to receive the Wilson Reading Program. (J-14)

18. Dianne O’Connell testified that she is a Consulting Teacher of Reading in the Dennis-Yarmouth School District; she has a Master’s degree in education and reading; and she is a certified reading teacher. She consults with special and regular education teachers when students have reading difficulties. In the spring of 2003 Father reported that Student was a non-reader and requested that she review Student’s progress in reading. She reviewed Student’s records, spoke to faculty, assessed Student, and wrote a report of her findings. (J-18) She also sought to determine whether or not the Wilson reading program would be appropriate for Student. (O’Connell)

19. Ms. O’Connell’s report states that while not performing at grade level, Student has made continued progress in reading. He began second grade reading at an early first grade level and began third grade reading at a mid/end first grade level. By May of third grade he was reading at a mid second grade level. Ms. O’Connell testified that she used the Eckell-Shanker reading inventory to determine Student’s competency with basic sight word recognition in spring 2003. On one sub-test Student knew 26/36 and on another he knew 193/220 words. She testified that students are expected to master said sight words by the end of third grade and student was on his way to accomplishing that goal. She testified that his fluency was weak; his listening comprehension was higher than his reading comprehension; and his phonics skills were “okay.” (O’Connell, J-18)

20. Ms. O’Connell administered the Wilson Reading assessment to Student because parents had requested that Student receive Wilson instruction. He was able to identify all of the consonant sounds, digraphs and many vowel sounds. He tried to sound out, letter by letter many other letter combinations, but was unsuccessful. (J-18) She noticed that Student could not pronounce “kn” appropriately but could pronounce the words “knot, knife, and knob”. He could not pronounce “tion” correctly but could pronounce “question” correctly. She determined that Student’s strength is in reading whole words in context rather than sounding out parts. She did not want him to break words apart into their individual letters because he was getting hung up on that. She noted that the “chunks” of words were important to him. When she assessed him with the Developmental Reading Assessment10 (hereafter, “DRA”) she noticed that he uses meaning. (J-18) She noted that Student could decode real words out of context and he told her he could not decode nonsense words. (O’Connell)

21. Student received Wilson tutoring over the summer. Ms. O’Connell assessed Student using the DRA on September 16, 2003 after he had received 30 sessions of Wilson tutoring. (S-19) She found that Student was not able to read at the same level as he had at the end of the prior school year and his reading level had declined “quite a bit.” In April 2003 Student had read at level 18/J with 97% accuracy and adequate comprehension. His instructional level had been 20/K. In May 2003 he was at an independent level K and at instructional level L. Therefore, in September, she thought he would be able to read a level I. However, he only had a 93% accuracy rate and 94% is considered acceptable. He only had some comprehension. She testified that his fluency had “broken down” because instead of using the strategies he had used in the past he was breaking words down by the letter. She proceeded to present a DRA level H (first grade reading level) and he read much more fluently. His comprehension was adequate and he had a 94% accuracy rate. She testified that he probably should not have made the errors he made because he had learned the letter patterns in the Wilson program during the summer. She reviewed Wilson step 1.3 with him and he missed 4 of 15 real words and 9 of 15 nonsense words. She asked him to read a step 1.3 passage and he made a few errors and kept asking if it was making sense11 . Student came to the word “an” and did not know what it was even though he has learned it with Wilson and can recite it. Ms. O’Connell concluded that during the summer in which he received Wilson tutoring, his accuracy, comprehension and fluency all declined12 . She did not find that Wilson has benefited him. (O’Connell; J-19)

22. Ms. Wolf testified that she is familiar with the Wilson Program. She thinks the program she used is more appropriate for Student than Wilson because he does not do well with “just sounds and learning rules because he has a memory problem.” She thinks he’ll become overwhelmed as he progresses in the program and has to remember more and more rules to decode a word. She thinks he has to read books that make sense. She explained that Wilson uses the words students are working on at that time and the stories sometimes do not make sense. Student really likes to read for meaning. She stated that by the end of third grade Student was not interested in reading lists of words, he was more interested in reading for meaning. (Wolf)

23. Ms. O’Connell testified that she does not think the Wilson Program is appropriate for Student. She testified that the Wilson Program systematically breaks down every word into its components’ individual sounds. She explained that each step requires mastery prior to proceeding to the next. Wilson also requires the memorization and application of numerous rules. Student’s difficulties with long-term retrieval may impact this. (J-18) Another problem with Wilson for Student is that many words he encounters are not going to follow the rules he’s been presented with in Wilson so far. She testified that the Wilson Program does not focus on Student’s strengths, it focuses on his weaknesses. She predicted it would take a long time for him to get through Wilson even if he can remember the rules with his memory difficulties. She acknowledged Student’s scores had increased in some areas as assessed by the Wilson pre and post-testing, but does not think the increases were significant. Finally, Student uses meaning as his primary strategy for understanding text he is reading. Ms. O’Connell testified that Wilson uses nonsense words and sentences that do not make sense to reinforce words that students are learning. (O’Connell)

24. Ms. O’Connell testified that the phonics program D-Y has in place is working well for Student13 . She does not think Student requires a certified reading teacher and she does she think that a smaller group would have any impact on his progress. She stated that when Student was assessed in November 2003 with the DRA he was at a level J14 . (O’Connell;J-24)

FINDINGS AND CONCLUSIONS:

Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA)15 and the state special education statute.16 As such, he is entitled to a free appropriate public education (FAPE). Neither his status nor his entitlement is in dispute. Under the FAPE standard, the IEP proposed by the school district must offer the student a free appropriate public education that meets state educational standards. This education must be offered in the least restrictive environment appropriate to meet the student’s individual needs17 . Federal law also requires that the student be able to fully participate in the general curriculum to the maximum extent possible. 20 USC § 1415(d)(1)(A)(iii); 34 CFR 300.347(a)(2)(I) and (a)(3)(ii); 64 Fed. Reg. No. 48, page 12595, column 1; See also, In Re: Worcester Public Schools, BSEA # 00-1912, 6 MSER 194 (2000).

As discussed in In re: Gill-Montague Public Schools District , BSEA # 02-1776, “the Massachusetts statute defines FAPE as “special education and related services as consistent with the provisions set forth in 20 U.S.C. 1400 et seq. [the IDEA], its accompanying regulations, and which meet the education standards established by statute or established by regulations promulgated by the board of education,”18 , including the Massachusetts state curriculum frameworks.19 The IDEA in turn defines FAPE as “special education and related services that:
(A) have been provided at public expense, under public supervision and direction, and without charge;

(B) meet the standards of the State educational agency;

(C) include an appropriate preschool, elementary, or secondary school education in the State involved; and

(D) are provided in conformity with the individualized education program required under section 614 (d).”20

As stated by the federal courts, the LEA is responsible to offer students meaningful access to an education through an IEP that provides “significant learning” and confers “meaningful benefit” to the student21 , through “personalized instruction with sufficient support services …”22 . The requirements of the law assure the student access to a public education rather than an education that maximizes the student’s individual potential. Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993); GD v. Westmoreland School District , 930 F.2d 942 (1 st Cir. 1991).

The First Circuit Court of Appeals interpreted minimally acceptable standards of educational progress requiring that the IEP yield “effective results” and “demonstrable improvement” in the “various educational and personal skills identified as special needs,”23 in the context of the potential of the particular student.24

Similarly, the Massachusetts special education statute defines “special education” to mean “educational programs and assignments . . . designed to develop the educational potential of children with disabilities . . .” which permit a student to make meaningful educational progress.25 MGL c. 71B § 1, the special education statute in Massachusetts, requires that eligible students receive special education services designed to develop the student’s individual educational potential”26 consistent with the interpretation provided by other Courts. The IEP is the road map that defines the services to be offered and the measurable goals embodied therein determine whether the student has made educational progress.27 See also, In Re: Arlington Public Schools , BSEA # 02-1327, issued on July 23, 2002.

Student’s eligibility is not in dispute. The issue of the appropriateness of his current IEP is somewhat moot, as the evidence shows that Parents accepted the most recent IEP amendment which includes the reading services Student currently receives28 . There is nothing in the evidence to suggest that Parents have rejected the IEP since their June 16, 2003 acceptance. (See J-17) Furthermore, Parents have not met their burden of showing that the IEP is inappropriate for Student. None of Parents’ witnesses was familiar with the reading program being provided to Student by D-Y. Although Ms. Crowell had attended a Team meeting to discuss her evaluation results, she had never observed Student in his reading program and had not assessed his ability to read connected text. Since she was unfamiliar with the services D-Y was providing to Student, she was unable to provide an opinion as to whether D-Y’s program met her recommendations for Student. She described Student to the Team as a “non-reader” despite the scores she attained placing Student in the low average range in most areas of reading. Although she testified that she would have hoped Student would have made a year’s growth in reading from October 2001 through February 2003, she did not provide any basis for her expectation. Ms. Wolf’s testimony that she read often with Student during his third grade and he made progress was credible. (Wolf) Ms. Dunn’s testimony that Student was making progress in reading was also credible. She described Student’s learning style in a way that showed that she had an understanding of his strengths and weaknesses and was appropriately addressing them. Her testimony also demonstrated that she used many of the techniques recommended by Ms. Crowell, although not in the context of the Wilson Reading Program. (Dunn) Even if Parents had rejected the IEP, they have not met their burden of showing that it was not reasonably calculated to provide Student with a free appropriate public education.

The Parents also failed to persuade me that Student required the Wilson Reading Method to receive FAPE. Case law generally allows the school district discretion to determine the appropriate methodology of the education services so long as the student is able to make meaningful and effective progress. See E.S. v. Independent School District, No. 196 , 135 F.3d 566 (8 th Cir. 1998) (“As long as a student is benefiting from her education, it is up to the educators to determine the appropriate methodology.”) The persuasive evidence shows that not only did Student benefit from the reading services provided by D-Y, but he actually showed regression after receiving tutoring in the Wilson Reading Program. Ms. O’Connell was instructive in her testimony regarding Student’s weaknesses and their impact upon his ability to benefit from the Wilson Reading Program. Ms. Wolf and Ms. Dunn were also instructive regarding their observations of Student’s ability to use context and meaning to assist in his decoding of text.

I discounted the testimony of Ms. McEwen with respect to Student’s need for Wilson tutoring because her recommendations were based upon her opinion of what all dyslexic children require rather than what Student individually requires. She did not take Student’s memory difficulties into account nor did she consider Student’s individual strengths and weaknesses in recommending Wilson instruction. Additionally, her only knowledge of Student and his profile was what she gleaned during the two hours she spent assessing him.

I disregarded Dr. Harrington’s testimony regarding Student’s suffering from PTSD after he admitted that he used the “rule-out” diagnosis as a way to call attention to Student’s difficulty with reading and acknowledged that the DSM IV does not refer to an inability to cope with school. I did not find any basis for relying upon his recommendation that Student receive Wilson tutoring.

Student’s tutor, Ms. Carson’s, testimony corroborated Ms. O’Connell’s testimony that Student’s long-term retrieval difficulties impact his ability to progress in the Wilson Program. Ms. Carson stated that Student continued to have difficulty remembering some sounds after 45 Wilson sessions. Ms. O’Connell’s testimony was perhaps the most convincing testimony because she was able to demonstrate Student’s progress over time and show that his progress declined when he received Wilson tutoring. (Carson, O’Connell)

It was heartening to hear from Father and Dr. Harrington that Student has told them he is “starting to feel smart” and that Student is currently happy with reading. The evidence does not show that Student’s improvement is due to the Wilson Reading Program though. It is important that both Parents and school staff continue to support Student in his efforts to improve his reading skills. Student has experienced anxiety as a result of his reading difficulties in the past. The adults involved in this matter must ensure that Student is not placed in a situation such as that alluded to in footnote 5 as that is likely to cause his anxiety to return. Although Parents believe that the Wilson Program is the appropriate program for the Student they must be careful not to allow their feelings to impact Student’s success in D-Y’s program. Similarly, if Parents choose to continue the outside Wilson tutoring at their own expense, D-Y staff must not allow Student to know their feelings about the tutoring. The Student’s progress should continue to be closely monitored and services adjusted as needed.

ORDER

I find that the IEP proposed by the Dennis-Yarmouth Public Schools for the periods between March 7, 2003 and March 7, 2004 was reasonably calculated to provide Student with a free and appropriate public education in the least restrictive environment. I do not find that Student requires instruction using the Wilson Reading Method to receive a free appropriate public education in the least restrictive environment.

By the Hearing Officer,

____________________________________

Catherine M. Putney-Yaceshyn

Dated: February 13, 2004


1

Testimony taken via speaker phone per agreement of the Parties.


2

Ms. Crowell’s report indicates that she administered the Woodcock-Johnson III Test of Cognitive Abilities, the Woodcock-Johnson Test of Achievement –Form A, the Bender Test of Visual Motor Integration and the “Draw-A-Person.


3

Her recommendations include: Having Student read books at home that are at an easy level to instill an enjoyment of reading; and having Student listen to a tape while following along in the text of a more difficult text.


4

Mr. Stein testified that Parents requested that Student receive his reading in a resource room setting instead of an inclusion setting.


5

The accommodations included: small group instruction; frequent teacher check-ins; verbal directions with visual demonstrations; extra time to finish work; reduced written output; repetition of information to improve long-term memory; information broken down into manageable steps, appropriate modification of curriculum when needed; additional time to process verbal and visual information; graphic organizers; books on tape; sending books home regularly that are at his independent reading level; preferential seating; “metacognitive strategies should be taught and utilized to help Student recall verbal directions such as verbal rehearsal, tag words, chunking, visual imagery, and visualization.”


6

I do not find the testimony describing the ensuing events relevant to the determination of appropriate services for Student or the appropriateness of the Wilson Program for Student. The testimony was indicative of the strained relationship between school staff and Parents and Student’s reaction to the strained relationship. In the interest of preserving the relationship between Parents and school staff, I decline to describe the event and I do not draw any conclusion regarding Student’s reading ability based upon the event.


7

She testified that she spent two hours with Student.


8

She was trained in Orton -Gillingham in 1978 .


9

He acknowledged that the DSM IV does not refer to an inability to cope with school.


10

The DRA assesses children on accuracy to see how well they read passages; their comprehension, to see whether they are comprehending what they are reading. The DRA has several books that increase in difficulty. The child usually looks at the selection that someone has presented to him/her and determines where he feels comfortable reading. The DRA assesses the child’s independent instructional level and from that you can determine his/her instructional level. (O’Connell)


11

She testified that that was an example of how Student relies on meaning heavily and she thinks D-Y should use that area of strength.


12

Ms. O’Connell compared Student’s reading progress during the summer of 2003 to the progress he had made during other school years and noted the following. Student’s reading level had declined during the summer between first and second grades when he did not receive services. He made steady progress throughout second grade, but remained below grade level. He received tutoring with the school’s reading program during the summer between second and third grades, made progress, and did not regress.


13

They use the five components that the national reading panel has deemed necessary for a comprehensive reading program (phonological awareness, phonics, fluency, comprehension, and vocabulary).


14

Ms. O’Connell testified that it was possible that Student is currently at a higher level, but he was absent on the last date he would have been assessed. (O’Connell)


15

20 USC 1400 et seq .


16

MGL c. 71B.


17

20 USC 1412(5)(A)


18

MGL c. 71B, §1.


19

See the Mass. Department of Education’s Administrative Advisory SPED 2002-1: Guidance on the change in special education standard of service from “maximum possible development” to “free appropriate public education” (“FAPE”), Effective January 1, 2002 (hereafter Mass . FAPE Advisory ), 7 MSER Quarterly Reports 1 (2001).


20

33 USC 1401(8). The federal regulations adopted pursuant to the IDEA include a similar definition of FAPE. 34 CFR 300.13.


21

For a discussion of FAPE see Hendrick Hudson Bd. Of Education v. Rowley , 458 U.S. 176, 188-189 (1992); Cedar Rapids Community School District v. Garret F., 526 U.S. 66 (1999); Burlington v. Department of Educatio n , 736 F. 2d 773 (1 st Cir. 1984). Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000); Stockton by Stockton v. Barbour County Bd. of Educ., 25 IDELR 1076 (4 th Cir. 1997); MC v. Central Regional School District , 81 F.3d 389 (3 rd Cir. 1996), cert. denied 519 US 866 (1966); Ridgewood Board of Education v. NE , 30 IDELR 41 (3 rd Cir. 1999). See also GD v. Westmoreland School District , 930 F.3d 942 (1 st Cir. 1991).


22

Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 203, 102 S.Ct. 3034, 3049 (1982).


23

Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993) (program must be “reasonably calculated to provide ‘effective results’ and ‘demonstrable improvement’ in the various ‘educational and personal skills identified as special needs’”); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990); Burlington v. Department of Education , 736 F.2d 773, 788 (1 st Cir. 1984).


24

Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) (a disabled child’s development must be measured with respect to the individual student, not by his relation to the rest of the class, as declining percentile scores may represent the student’s inability to maintain the same level of academic progress achieved by regular peers and not necessarily a lack of educational benefit); Ridgewood Board of Education v. NE , 172 F.3d 238 (3 rd Cir. 1999); MC v. Central Regional School District , 81 F.3d 389 (3 rd Cir. 1996), cert. denied 519 US 866 (1996); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990); Kevin T. v. Elmhurst , 36 IDELR 153 (N.D. Ill. 2002).


25

The Massachusetts Department of Education (DOE) stated that the “FAPE standard . . . requires the school district to provide personalized instruction tailored to the student’s needs, with sufficient support services to permit the student to make meaningful educational progress .” Mass. FAPE Advisory (see footnote 8 above for full title and citation of Advisory) (emphasis supplied).


26

603 CMR 28.01(3). The Massachusetts Department of Education has also noted that the Massachusetts Education Reform Act “underscores the Commonwealth’s commitment to assist all students to reach their full educational potential.” Mass. FAPE Advisory (see footnote 8 above for full title and citation of the Advisory). M.G.L. c. 69, §1 states in part that a paramount goal of the commonwealth is “to provide a public education system of sufficient quality to extend to all children the opportunity to reach their full potential.”


27

County of San Diego v. California Special Educ. Hearing Office, 93 F.3d 1458 (9th Cir. 1996) (the correct standard for measuring educational benefit under the IDEA is whether the child makes progress toward the goals set forth in IEP and not just whether the placement is reasonably calculated to provide the student educational benefits.); Evans v. Board of Education of the Rhinebeck Central School District , 930 F.Supp. 83 (S.D. N.Y. 1996) (the IEP must include measurable criteria to assess the student’s progress).


28

This issue was not raised during the Hearing, but became apparent upon review of the evidence.


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