COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
Re: Student v. Gill Montague Public Schools
BSEA # 02-1776
DECISION
This decision is issued pursuant to 20 U.S.C. 1401 et seq. (the “IDEA”), 29 U.S.C.794, M.G.L. chs. 30A, 71B, and the Regulations promulgated under those statutes.
A Hearing in the above-referenced matter was convened on June 18, 19, 21 and July 8, 2002, at Catuogno Reporting Services Office, 446 Main St., 19 th floor, Worcester, MA, before Rosa I. Figueroa, Hearing Officer. The Hearing was requested by the Parents on October 15, 2001 when Gill-Montague Public Schools District (hereinafter, “Gill-Montague”) sought to have the Student return to the District for the 2001-2002 school year.
A BSEA decision of August 17, 2001, by Hearing Officer William Crane, ordered reimbursement to the Parents for their unilateral placement of the Student at Eagle Mountain for the previous year. The BSEA Hearing Officer found that Gill-Montague’s previous IEP was not reasonably calculated to maximize the Student’s educational development in the least restrictive environment. The matter before me originally included the 2001-2002 school year, but ultimately, the parties agreed to allow the Student to remain placed at the Eagle Mountain School, at Gill-Montague’s expense through June 2002. Although the IEP in dispute covers the period from January 2002 through January 2003, the Hearing before me addresses only that portion of the placement covering the 2002-2003 school year.
The Parents’ written closing argument was received on July 26, 2002 and the Schools’, postmarked on August 2 nd , was received at the BSEA on August 6, 2002. The Record closed on August 6, 2002 upon receipt of the parties’ written closing arguments.
Those present for all or part of the Hearing were:
Student’s Mother
Student’s Father
Buffy Dewey Advocate for the Student/Parents
Dr. Cheryl Muzio Clinical Psychologist
Marilyn Schmidt, Esq. Attorney for the Parents/Student
Dr. Judith Souweine Psychologist, Consultant to Gill-Montague Public Schools
Ira Band Psychologist, Gill-Montague Public Schools
Peter Smith, Esq. Attorney for Gill-Montague Public Schools
Richard Weber Director of Special Education, Gill-Montague Public Schools
Laurie Farkas Principal, Sheffield Elementary School, Gill-Montague Public Schools
April Minor Special Education Liaison, Gill-Montague Public Schools
Parents’ Exhibits 1 through 12 and Schools’ Exhibits 1 through 30 were admitted in evidence and were considered for the purpose of rendering this decision.
ISSUES PRESENTED
1. Whether the IEP proposed by Gill-Montague Public Schools for the 2002-2003 school year as delineated in the IEP covering the period from January 2002 through January 2003 offers the Student a Free Appropriate Public Education in the least restrictive environment appropriate to meet the Student’s needs in accordance with State and Federal Special Education Law. If not;
2. Whether the Student is entitled to continue placed at the Eagle Mountain School at School District’s expense.
POSITION OF THE PARTIES
Parents’ Position:
No dispute exits between the parties regarding the Student’s entitlement to special education services or his areas of disability. Their disagreement stems from their view of the severity of the Student’s disabilities and the placement options. The Parents argue that the program proposed by Gill-Montague, which offers the Student a substantially separate language based program at the Sheffield Elementary School’s Language-Based Classroom, with participation in a co-taught model for Science and Social Studies, as well as assistance by an aide for specials, i.e. art, music, physical education, lunch and recess, along with pull out services for speech, language therapy, occupational therapy, a social skills group and counseling, will not meet the Student’s needs. They are concerned that those responsible to design and implement the Student’s program in Gill-Montague have a fundamental misunderstanding of the Student’s needs. They are further concerned about the little time allocated to lesson planning and curriculum modifications required to adapt the language of the 6 th grade inclusion classes to the Student’s language skills. Lastly, they question the lack of clarity regarding the role of supervision of staff, and the little provision for accountability and quality management of the program. Since the Student has one more year at Eagle Mountain he should remain there until the completion of the 2002-2003 school year.
The Parents distrust Gill-Montague and favor continued placement at Eagle Mountain where he has progressed effectively in a manner commensurate with his abilities.
Schools’ Position:
Gill-Montague asserts that it has created and is able to provide the Student with an appropriate educational program in the Language-Based Classroom at the Sheffield Elementary School for the 2002-2003 school year. As such, it seeks to have the Student return to the District.
FINDINGS OF FACT
· Born on 8/27/1990, the Student is an 11 years 11 month old youngster entering the 6 th grade in August/ September 2002. (PE-1) No dispute exits between the parties regarding the Student’s entitlement to special education services or his areas of disability.
· The Parents distrust Gill-Montague and favor continued placement at Eagle Mountain for the Student’s sixth grade. (Testimony of the Parent)
· The Student was placed by the Parents at Eagle Mountain in 1998, Student’s second grade. He has remained at that placement through June of 2002. The Parents have been reimbursed by Gill-Montague for the Student’s placement between April of 2000 and June of 2002 partly pursuant to a decision issued by the BSEA on August 17, 2001 and partly by agreement of the parties. (PE-4)
· Eagle Mountain School is an independent day school which offers a complete curriculum for children of average to above average intelligence who have experienced difficulties with academics, especially reading, math and writing. It offers a nurturing supportive environment where students are able to relate positively to academics and peers so that each child can develop his/her own potential. (PE-9) The instruction is offered in small groups of one teacher to five students or on a one- to-one basis in a structured sequential consistent program designed to foster success. (Id.) Eagle Mountain uses a structured, multi-sensory sequential program, namely the Lindamood Auditory discrimination in Depth Program, and incorporates Visualizing/Verbalizing, an effective concept imagery program, to develop the students’ decoding and encoding skills. (PE-9) Eagle Mountain School’s Staff’s curriculum vitas, credentials and certifications are found at PE-10.
· The Student has made meaningful effective progress at Eagle Mountain School in a program that provided him with the appropriate structure and support recommended by Dr. Muzio. (Testimony of Dr. Muzio and Dr. Souweine) The Student’s mid-term report of January 2002, states that in reading the Student worked on a daily one-to-one tutorial in the Lindamood Phoneme Sequencing program and reviewed all the consonant vowel sounds, reading and spelling rules and advanced suffixes applying his understanding of sounds and rules to reading and spelling. (PE-11; SE-29) The Student also worked on decoding phonetically regular, nonsense and real words up to four syllables, practiced applying spelling rules to phonetically regular words up to two syllables and used symbol imagery for spelling phonetically irregular words. For particularly difficult words he used a Visual Spelling Chart. He completed Book 7 and was working on Book 8 of Explode the Code workbook series and moved on to Book E of the Reading Comprehension workbook series. After practicing lower case single cursive letters he moved into connecting letters. Because he does not understand the meaning of many words, he struggles with comprehension and frequently misinterprets what he reads. (Id.) For writing he worked on writing compound sentences, structured paragraphs, letters, poetry and creative writing showing good knowledge of the grammar concepts studied in the fall. The purpose of the literature class was to improve the student’s comprehension, build his vocabulary and increase reading fluency. The Student was observed to apply his decoding skills to unfamiliar words with more frequency and his reading fluency improved when he relaxed and did not rush through. Relaxing also improved his comprehension skills. With written work he frequently hurried, an indication that he still struggles with written output. (PE-11; SE-29) In math he worked on solving long division problems with and without remainders, practiced adding fractions with uncommon denominators, added and subtracted decimals, practiced multiplying decimals, was able to determine what operation to use to solve word problems demonstrating accuracy rates between 80% and 90 % for all of these. In social studies he worked on the basic features of world and United States geography, studied the migration of Europeans to North America during the 17 th century and the effects of colonial settlements on the Native Americans and the land. His class participation improved in this area, he asked more questions, raised his hand and answered questions in front of the small group. (Id.) The focus of science was botany concentrating on angiosperms. They studied photosynthesis, built a molecule model, studied the vascular system through which plants transport water and sugar, and worked on the School’s vegetable garden. The Student was described to have done very well on hands-on activities but needed a lot of guidance and support with the written reports. Lastly, the focus of the art class was on three-dimensional construction, alternating with drawing and design. The Student enjoyed three-dimensional projects and was enthusiastic about starting to make puppets. According to the art teacher, his drawing and design work showed maturation. (PE-11; SE-29)
· Dr. Cheryl Muzio, Psy. D., licensed psychologist in MA and VT, first performed an independent evaluation of the Student on 12/18/2000 and 3/12/2001. (PE-8; PE-3) A detailed description of her findings and recommendations can be found in PE-4, Hearing Officer Crane’s decision. (See PE-4, p.15 et seq.) Dr. Muzio diagnosed the Student with a reading disorder, a mathematics disorder and a disorder of written expression as he was found to be significantly impaired in these areas. His performance in the WISC-III placed him in the lower end of average range of cognitive ability (Verbal IQ-99, Performance IQ-82, Full scale IQ-90.) Dr. Muzio found a severe discrepancy between his cognitive ability and his academic achievement. The discrepancy “appeared to be related to a disability in the basic psychological process of auditory short-term memory, auditory discrimination, phonemic awareness/auditory analysis as well as visual processing, particularly visual short-term memory, visual-spatial relations and visual-motor skills.” (PE-3) His performance revealed significant weaknesses in visual fine-motor performance as well as in basic reading, numerical operations, and spelling. He also demonstrated weak word attack skills but stronger reading comprehension. (PE-3) He exhibited a strength in awareness of conventional norms, and evidenced mid-average comprehension of orally presented information. Dr. Muzio’s analysis of her findings suggested Student’s strengths in verbal thinking and reasoning skills, general knowledge and adaptive behavior. As a result of these disabilities, she recommended provision of highly specialized services. She recommended that services to the Student be offered in a substantially separate classroom with a small student/teacher ratio, with opportunity for individualized instruction that provided a specialized curriculum. She stressed that the program must offer “an environment in which the academic and emotional needs of children with severe learning-based disabilities are specifically and consistently addressed.” (Id.) Dr. Muzio discouraged a regular education setting with provision of pull-out special education services. (Id.)
· A Team meeting notice was sent by Gill-Montague on October 24, 2001 inviting the Parents, their advocate, Hedi Christianson from Eagle Mountain and nine other Gill-Montague staff to participate in the development of an IEP for the Student. (SE-15) The invitation proposed to convene the Team on November 7, 2001. This was a re-scheduled meeting. (SE-15) The Team did not convene on that day. (SE-14)
· On November 16, 2001, Mr. Weber from Gill-Montague wrote to Ms. Christenson to ascertain her availability for one of three possible dates, December 6, 13, or 15, 2001, to participate in a Team meeting. The two previous TEAM meetings had been cancelled due to conflicts with either Ms. Christenson’s or the Parents’ schedules. (SE-14)
· On November 19, 2001, Gill-Montague sent the Parents another Team meeting notice re-scheduling the previous meeting to develop the IEP for the Student. The meeting was scheduled for December 11, 2001. (SE-13) Hedi Christianson from Eagle Mountain, the Parents and their advocate, Ms. Buffy Dewey, were invited to participate in addition to nine (9) other Gill-Montague staff members. (SE-13)
· Another Team meeting notice was sent by Gill-Montague on December 12, 2001. The invitees were notified that the Team would convene on January 8, 2002 to discuss placement for the provision of services to the Student. (SE-11)
· The Student’s Team met on January 8, 2002 to develop the IEP covering the period from 01/08/2002 through 1/8/2003. (PE-5) The IEP developed offered the Student services in a Language-Based Classroom at the Sheffield Elementary School in Turners Falls, MA. The plan provides specialized instruction to be offered in a small group setting and outlines numerous teaching instruction accommodations of a modified grade level curriculum, inclusive of modifications of subject tests. Assistance and small group instruction is specifically provided for reading, writing, spelling, and oral communication skills. It recommended small group instruction in the classroom for math, science and social studies as needed. It also offered language therapy on an individual basis in the Language therapy room as well as within a small group in the Language-based classroom to allow for practice and carryover of the skills he learns. (PE-5; SE-2; SE-3)
· The service delivery grid in this IEP specifically offered the Student direct special education and related services in other settings as follow: organizational/time skills at a rate of 5.0 x 10 by the special education teacher, written language 1x 45 by the sped/sp. lang., written language 3.0 x 45 by the special education teacher, language therapy 1.0 x 30 by the sped/sp lang., reading comprehension 4.0 x 45 by the sped teacher (SE-2 calls for 5.0 x 45), math 5.0 x 45 by the sped teacher, phonics/spelling 5.0 x 45 by the sped teacher, occupational therapy 2.0 x 30 by the OT therapist, counseling 1.0 x 30 by the home school liaison (SE-2 states yhat it will be provided by the school psychologist, oral expression 1.0 x 30 by the spec.ed/sp lang. and a 1:1 paraprofessional sp/lang pathologist (the 1:1 paraprofessional sp/lng pathologist is missing from SE-2.) (PE-5) Under Consultation, indirect services to school personnel and Parents, the plan listed Language Consultant 1.0 x 30 by the sp/lng pathologist and 1.0 x 60 Lesson Planning by the special education teacher. Lastly, the IEP proposes that the Student receive science and social studies 5.0 x 45 of direct services in the general education classroom, by the classroom teacher and/or the /special education staff. (PE-5; SE-2; SE-3)
· Gill-Montague’s IEP stated that the Student’s deficits impact upon his ability to “understand new and abstract vocabulary and concepts when presented without conceptualized information and the use of pre-teaching strategies; process and respond to fast paced discourse that is not inter-dispersed with teacher-directed comprehension checks;-retain information in memory while thinking and responding to mental tasks at hand without the use of visual aids and interactive instruction; -recall words and express knowledge concisely and coherently without modeling and prompting cues; -respond to multi-step directions without verbal prompts from a teacher;-and respond to open ended types of questions and writing prompts.” It described the Student’s progress in all academic areas, especially where demands for written output are made, as very slow as he finds it very difficult to develop his skills to a level of automaticity. Pacing was stated to be critical for him. (PE-5; SE-3)
· Under this IEP the Parents are to be apprised regularly of the Student’s progress including his behavior as he is described as having problems with impulsivity. (PE-5; SE-3) Additional information calls for modification of the school’s policy in determining detentions and suspensions. It specifically states that violations of school rules that would normally result in suspensions or detentions will become in-school suspensions. If this happens he is to be assigned to a social skills classroom with a professional that can work with him on anger management strategies and he will continue to receive all of the direct services special education provided in the Student’s IEP grid. However, if the suspension is related to a violation of the school rules regarding its zero tolerance policy, i.e. weapons, and drugs, the IEP provides that a normal suspension will take place. (PE-5; SE-3) This IEP was forwarded to the Parents on January 9, 2002, and both Parents rejected it in full on January 25, 2002. (SE-3) This IEP incorporates the recommendations made in the Massachusetts General Hospital’s Speech Language Pathology Initial Evaluation of December 28, 1999 and the Neuropsychological Evaluation of June 4, 1999. (See SE-9 and SE-10)
· SE-1 as amended shows the schedule prepared by Gill- Montague for the Student’s 6 th grade inclusive of the services in the IEP.
· On March 12, 2002, Dr. Cheryl Muzio observed the classroom proposed by Gill-Montague for the Student. (PE-12; SE-12) She arrived at 9:00 a.m. to observe the special education classroom ran by Ms. McGrath, special education teacher, and assisted by Ms. Otter. The classroom was a combined sixth (four boys) and fifth grade (three boys.) It was described as skills, not content, based. The physical setting was found to be appropriate in all respects regarding space, light, furniture, and ambiance and included materials such as graphic organizers on story structure and sentence, as well as an alphabet model and story maps on the walls. Some ambient noise was noticed but it did not interfere with the instructional environment. The classroom time and activities observed included both the fifth and sixth graders working together as well as separately. When working separately, the fifth graders attended to task and followed instructions. (PE-12; SE-12)The sixth grader’s group was harder to manage behaviorally. At least one of the sixth graders, described as student A, was very disruptive to the class and consistently displayed oppositional behavior and was very rude during the individual session. During activities that combined some of the fifth and sixth graders, the teacher and her assistant had great difficulty managing the students’ disruptive behaviors and controlling the classroom. More students acted out refusing to attend to task, speaking loudly or out of turn, complaining about and mocking the materials, talking back at the teacher and the assistant, refusing to work in cooperative groups or pairs, etc. (Id.) As the day went on, the behavior of the sixth graders continued to escalate becoming significant. Some demanding and oppositional behavior was directed at Ms. McGrath. As their behavior escalated, the classroom noise became very distracting. Eventually, the teacher was able to regain control of the classroom but soon lost it again. Ms. Gavin, the speech and language pathologist, also had difficulty controlling the group of she handled for speech and language instruction. The behaviors continued to escalate and by 12:07 p.m. some students were burping, some walked behind the observer and barked at Dr. Muzio, one student made noises with his mouth, as a group they were off task and defiant to the teacher and Ms. Otter. (Id.)
· Dr. Muzio concluded that while ongoing classroom management issues interfered with classroom activities and instruction both Ms. McGrath and Ms. Otter worked hard to create an engaging and upbeat educational environment. (PE-12; SE-12) According to her, the attentional, behavioral and emotional issues displayed by a number of students required frequent prompting and redirection to instructional activities which compromised effective instruction for all the students in the classroom. The skill-based activities however, were found to be appropriate for the remediation of language-based learning disabilities. (Id.) Dr. Muzio commented that the reading materials chosen were at the appropriate reading level but failed to capture the students’ interest. The only piece discussed which was of interest to the students was a tobacco article chosen by the students which appeared to be beyond their instructional level. The students’s demeaning comments about themselves, e.g.,“I am in a baby class. I don’t care. I’ll dis myself all day,” “I can’t work with an idiot like him,” “I hate it in this dump. It smells and it stinks,” and their classmates raised concerns in Dr. Muzio in regards to the impact that being placed in this classroom had on the students’ social and emotional health. She concluded that due to the overall programmatic deficiencies, the significant and persistent classroom management difficulties, the language-based classroom observed at Gill-Montague’s Sheffield School, would be inappropriate to meet the Student’s needs. (PE-12; SE-12)
· Dr. Judith Souweine, Ed.D, licensed psychologist, observed the Student at Eagle Mountain on April 29, 2002. She also observed the Language-Based Classroom program at Sheffield Elementary School in May of the same year. (SE-25; Testimony of Dr. Souweine) At both sites, she had discussions with staff. In her career, Dr. Souweine has focused on special education, staff and parent training, and psychological assessment. She has also worked as a special education teacher, is a consultant to Eagle Mountain School and a neuro-psychological consultant to Gill-Montague. (SE-25; Testimony of Dr. Souweine)
· Dr. Souweine summarized her understanding of Joseph’s strengths, weaknesses and disabilities as follows: he has language-based learning difficulties which affect his reading, writing, spelling, as well as math. Testing revealed visual/perceptual, grapho motor output, and mild attentional difficulties. According to her, he appears to have some average level language abilities, with mild to moderate deficits in some areas of language learning. His strength, at this point, is in reading. Based on listening to him read, reports from Eagle Mountain, and discussion with Ms. Christenson, Joseph’s decoding has improved significantly within the last year. Ms. Christenson described the Student as a severely learning disabled child who had made progress in school. She stated, however, that his progress was not “tremendous,” which she attributed to the level of his disability. Dr. Souweine’s observation of Joseph at Eagle Mountain revealed him to be well integrated into all aspects of the program. (Testimony of Dr. Souweine)
· On April 29, 2002, during her observation of the Student at Eagle Mountain, Dr. Souweine received a list of test results from Ms. Christenson. Reviewing test scores, Dr. Souweine opined that the Student had made good progress in the years he had been at Eagle Mountain, and that progress had been steady in all areas except spelling. At the time of this testing, the Student was close to grade level in terms of reading (4.1 GE). She noted that Social Studies and Science were both above grade level, which indicated to her that Joseph continues to learn information in content areas at a level consistent with, and in this case, above his peers. She testified that there may need to be accommodations and modifications in terms of output, but it seemed to her that the Student is absorbing information that youngsters learn in school and in their environment about the world-at-large. She noted that she did not see overlapping among subjects at Eagle Mountain. (Testimony of Dr. Souweine)
· Ms. Christenson expressed concerns to Dr. Souweine about the Student’s behavior, stating that there had been a variety of instances of difficult, bullying behavior, that he had hurt other children without provocation, and evidenced moments of aggressive behavior. Ms. Christenson indicated that most of these behaviors had “toned down” but described Student as a youngster with “severe” social issues. (Testimony of Dr. Souweine) The Father stated that while there had been some issues with the Student’s behavior at Eagle Mountain, these had been few and not prevalent at all over the last year. (Testimony of the Father)
· Dr. Souweine, observed the Language-Based Classroom at Sheffield Elementary School, proposed for the Student, on May 3 and May 6, 2002. On May 3 rd Dr. Souweine first observed a tutorial consisting of three 5 th grade students. After initial instruction, two of the students worked with Ms. McGrath and one student worked with the paraprofessional. (SE-4) The students were generally cooperative and completed the tasks. Second, she observed a Reading session with 6 5 th and 6 th grade students. Some of the 6 th graders complained that the task involved was “baby work”, but listened fairly attentively, and no infractions of the rules posted on the board for the behavioral system were observed. They also read “My Side of the Mountain” aloud. (SE-4) The writing session, which contained 6 students, came next. The 5 th grade students all worked independently and completed the task, conforming to the pattern. Two of the 6 th graders resisted work. One made obnoxious comments and the other put his head down on the table. There were no consequences for the rude remarks made by the students. Both, Ms. Otter and Ms. McGrath were in charge of the lesson. (SE-4)
· On May 6, 2002, Dr. Souweine completed the second day of observation. The observation started with lunch/recess for the 5 th grade students. (SE-4) All of the Language-Based Classroom students were observed to be well integrated into the mainstream group. They sat dispersed within several tables. At recess they were engaged in a loosely organized football game of eight students. Following recess, the 5 th graders went to the social studies class which focused on Colonial history. Ms. Gutierrez asked questions to the whole group and two (2) of the program students volunteered to answer. Ms. Otter took notes on the computer during the discussion and at one point circulated around the room to make sure that her students as well as others had found a word in the dictionary as instructed by the head Teacher. The Language- Based Classroom students demonstrated interest in the discussion and participated at about the same level as the other students; one of them volunteered an answer. Ms. McGrath explained that she audio-tapes text material, modifies and breaks down long-term assignments into manageable chunks, and re-writes any tests so that the readability is at the level of the Language-Based Classroom students. (SE-4) The integrated Math class under Mr. Kovalsik was comprised of 19 students including four 6 th graders from the Language-Based Classroom. The students answered their questions correctly. One of the 6 th graders had his head down on the desk during much of the presentation with his eyes closed. Ms. McGrath was observed to circulate around the room helping many students. Mr. Kovalsick sat next to another 6 th grader student who raised his hand and asked for help. He helped him begin, re-explaining each of the steps, following which the student worked independently. Later, Mr. Kovalsick handed out a worksheet and checked in with this student to make sure that he understood and helped him until he began working independently. One other student worked with Ms. McGrath, and the fourth 6 th grader worked effectively with his friends. (SE-4) Mr. Kovalsick reported minimal behavioral issues with 6 th grade program students in his classroom, and that the collaboration between himself and Ms. McGrath had worked well throughout the year. (SE-4; Testimony of Dr. Soweine) With regard to reading-connected text, Ms. McGrath re-wrote texts or obtained text material at a more appropriate reading level when necessary. (Testimony of Dr. Souweine) Dr. Souweine found Mr. Kovalsick to be very committed to the Language-Based program and to have a good rapport with the students. He seemed to be a veteran teacher who had experienced a variety of models over the years for working with students with disabilities. He believed that the co-teaching model was particularly effective, and that Ms. McGrath’s presence in his classroom and her responsiveness to the needs of the curriculum had made a great difference in terms of the ultimate success of the integration. (Testimony of Dr. Souweine)
· Dr. Souweine concluded that the Language-Based Classroom utilized a variety of learning strategies and materials appropriate to the students’ needs, the instruction was individualized and well thought out. (SE-4) The teachers were encouraging and positive and appeared well-versed in remedial approaches. Materials and tests were modified when necessary. Mainstream teachers were in good communication with program staff, who took an active role in team teaching and the integration into mainstream classes was done with care and planning. Concepts and assignments from the mainstream were reinforced in the Language-Based Classroom and students were given assistance to complete tasks and study for tests. The students appeared comfortable in the classes, appeared to be well integrated socially with the mainstream students, and were active participants in the inclusion classes. The behavior of the 6 th and the 5 th graders was quite different. While the 5 th graders appeared to be generally compliant, the 6 th graders engaged in self-deprecatory, resistant and non-compliant behavior. (SE-4) Her review of individual student’s growth in reading, as measured by formal testing, indicated that the students had progressed. She however stressed that Ms. McGrath did not exhibit good behavior management strategies that proved effective in controlling the non-compliant behavior. After observing the Sheffield Elementary school Language-Based Program, reviewing the Student’s previous evaluations, observing him at the Eagle Mountain School and reviewing his level of functioning as described in recent testing, Dr. Souweine concluded that the program as developed by the Gill-Montague School District appears appropriate to meet his needs in the Least Restrictive environment. In reaching this conclusion she assumed a staffing change for the Language-Based Classroom for the following year that could insure better classroom management. She recommended individualized instruction in reading and writing, as well as modifications of content area materials for the Student and opined that the program would provide a good transition from the substantially separate school he has attended and the mainstream. The 5 th graders who would be the Student’s peers in the Language-Based Classroom for the Student’s sixth grade have similar educational needs. (SE-4) Dr. Souweine noted that the redacted IEPs of these students show that all three (3) students have similarities to the Student in the severity of their needs. She was of the opinion that that “many of the teaching techniques that are appropriate for these three (3) students are also appropriate for Student” and there would be “social compatibility” among them. (Testimony of Dr. Souweine; SE-16, SE-17, SE-18)
· On June 8, 2002, Lauri Olson-Porter, MBA, OTR made recommendations for occupational therapy for the Student. (SE-6) Ms. Olson-Porter has worked as an occupational therapist for Gill-Montague since 1993. She is certified in the administration and interpretation of the Sensory Integration and Praxis Test. (SE-24) Ms. Olson-Porter pointed out that she had not met or evaluated the Student. She based her recommendations on her review of an OT evaluation performed at Massachusetts General Hospital on December 28, 1999, a record review of the Student’s file, and a comprehensive Developmental/Behavioral Vision Assessment by Theresa J. Ruggiero, O.D., FCOVD, of May and August 1999. (SE-6) This last assessment indicated that the Student “appears to have a severe visual processing deficit… that [could not] be remediated through Vision therapy.” The evaluation from Massachusetts General Hospital found that “[Student] demonstrated difficulties with fundamental visual organizational skills which are necessary for continued development and progress with reading, handwriting, and other school classes; [Student] showed significant impairments with visual closure, spatial relations, motor planning, organization and sequencing issues; [Student] will need to gain more solid ground with his visual organizational skills in order to continue to progress as he moves into more challenging grades.” (SE-8) Based on these findings, the Massachusetts General Hospital evaluation made the following recommendations: “1) a continued small, adaptive classroom setting to allow for an optimal learning setting; 2) 1:1 work with teacher or special education aide to reinforce and teach organized note-taking, sequencing, and move toward a wider base of problem-solving strategies; 3) multi-sensory learning; 4) occupational therapy in order to continue development of visual organizational skills as well as for compensatory teaching; and 5) use of computer for written work with provisions for spell check and assistance with organizing his assignments and directions.” (SE-8)
· Ms. Olson-Porter proposed an occupational therapy program that would consist of 1:1 direct occupational therapy twice weekly for thirty-minute sessions to facilitate written output skills and computer keyboarding. (SE-6) The occupational therapist would consult with the Language-Based Classroom teacher to carry over skills addressed during OT sessions both in the Language-Based Classroom and the regular education classroom. She also proposed the use of the “Benbow Kinsethetic Approach to Handwriting,” a formal methodology in teaching cursive written output devised to provide a kinesthetic approach to hand-writing, in lieu of a visual and auditory approach. Ms. Olson would assess the Student’s grasp on writing tools and provide an appropriate pencil grip if needed. She proposed other modifications such as an inclined desktop to provide increased extension of the wrist/forearm musculature which can contribute to improved grapho-motor skills. She also suggested changes in the type of paper used by the Student for one with divided lines, green lines, or raised line paper to facilitate proper spacing. The Sunburst Communications’ “Type to Learn” software program should also be used as it encourages the development of language arts skills as it teaches the essentials of keyboarding. The program combines lessons with entertaining games that aim at reinforcing each keyboarding skill. Twenty-two lessons in this program build keyboarding skills and automatically adjusts to meet the individual needs of the Student. According to Ms. Olson-Porter, the program has features that are very helpful for students who have difficulties with motor planning and or proprioception. (SE-6)
· On May 21 and 30, 2001,Valerie Townes, M.A., CCC, Speech-Language Pathologist, performed a speech-language evaluation of the Student at Eagle Mountain School. (SE-26) In gathering background information, she used an observational rating scale which was filled out by a teacher at Eagle Mountain in which information was provided regarding the Student’s difficulties with listening comprehension, speaking, reading comprehension and written expression. She also reviewed Dr. Muzio’s report and various other school reports. (SE-26) Ms. Townes administered the following assessments: Clinical Evaluation of Language Fundamentals-3 (CELF-3); Peabody Picture Vocabulary Test-3 (PPVT-3); Expressive One word Picture Vocabulary Test-Revised (EOWPVT-R); The Word Test-Revised (TWT-R); Test of Word Finding (TWF); Clinical Evaluation of Language Fundamentals-Revised Screening Test: Oral Expression Subtest (CELF-R ST); Observation; Informal Listening and Oral Language Activities; Teacher Questionnaire; and Parent Questionnaire. (Id.) During testing, the Student was cooperative, showed some impulsivity when answering questions, asked questions when curious about something, but not to have information repeated or when he was confused about directions. In general he evaded tasks that he perceived as challenging, most especially with activities that required “focused use of working auditory memory.” (Id.) He responded well to prompting and encouragement. (SE-26) The Student’s linguistic profile reflected areas of strengths and weaknesses. With the exception of semantic knowledge, his receptive language fundamentals were at age-appropriate levels. His comprehension difficulties were mild to moderate as a result of a significant deficit in understanding semantics. Listening comprehension was strong for contextualized oral information, but he demonstrated fatigue during tasks requiring focused listening and his working auditory memory was found to be weak for remembering details and factual information. His auditory recall of information was better when he was able to relate what he heard to prior personal experiences, when visual aides were simultaneously utilized, or, as stated before, when contextual information was available. His expressive language fundamentals were age-appropriate and his oral language reflected mild to moderate weaknesses in the areas of verbal planning, oral narration, word retrieval, expressive vocabulary usage, aspects of semantics, and use of syntax during speaking activities that involved the expression of new information. (SE-26) Ms. Townes raised concerns over the Student’s decreased performance on two sub-tests of the CELF-3 and on the PPVT-3 when compared with results obtained during testing in December of 1999. The scores in 2001, although still within normal limits, could be reflective of a negative widening gap for the specific skills measured, between his performance and that of typically developing peers. The decrease was noted in areas involving receptive vocabulary, comprehension of semantic relationships in sentences and sentence formulation. Observation of the Student with peers on the playground showed that his verbal interactions were appropriate within that setting. (SE-26)
· Ms. Townes recommended the following: 1) direct language therapy sixty (60) minutes per week, focusing on enhancing expressive language and including weekly consultation with his teachers for program planning and coordination and to discuss the carryover of skills learned across all settings. Progress should be monitored on an ongoing basis; 2) because of the multi-faceted nature of the Student’s learning disabilities, consisting of co-morbis learning disabilities involving reading, written language and math as well as significant visual perceptive deficiencies, he should receive intensive language-based instruction in mathematics and all language arts subjects. The setting for provision of these services should be no greater than an 8:1 student/teacher ratio; and, 3) he should have access to peers with normal language skills to capitalize on his strong listening comprehension skills. Because of his reading disability, he is at risk of falling behind in the acquisition of academic-related subject content. Therefore, exposure to class discussions with typically developing peers would allow him to access knowledge that he would not be able to access through reading, as well as understand and use social language and abstract language forms commonly used by students his age. (SE-26)
· The Student’s end of the year test results, at Eagle Mountain, indicate that he has continued to make steady gains. (SE-30) In one year, word attack/decoding increased from a 5.3 grade equivalency (GE) to a 6.7 GE; arithmetic increased from 6.0 GE to 7.0 GE. His contexual oral reading is beyond a third grade level. He was reported to read fluently from novels at the fourth or fifth grade level in his classes. (SE-30) When the Student was at a grade equivalent of 5.9 and an age equivalent of 11.9 test scores were as follows:
Peabody Picture Vocabulary Test Age Equivalent – 12 – 1
Percentile – 58%
Wide Range Achievement Test – R – Arithmetic Grade Equivalent – 7
Percentile – 68%
Woodcock Reading Mastery Test – R – Word Attack Grade Equivalent – 6.7
Percentile – 50%
Gray Oral Reading Test – 3 – Passage Grade Equivalent – 4.6
Percentile – 37%
Gray Oral Reading Test – 3 – Comprehension Grade Equivalent – 5.4
Percentile – 37%
Lindamood Auditory Conceptualization Test 100/100
Woodcock Johnson Test of Achievement:
Writing Fluency Grade Equivalent – 4.5
Science Grade Equivalent – 8.1
Social Studies Grade Equivalent – 5.8
· On June 9, 2002, Linda Gavin, CCC-SLP wrote to Mr. Weber describing the role of the speech and language pathologist in the Language-Based Program at Sheffield Elementary. (SE-5) Ms. Gavin, MA, CCC-SLP, is a certified speech/language pathologist with thirteen years of experience primarily with the school-age population. (SE-20) She described the Language-Based Classroom as a substantially separate class for students with language-based learning disabilities which provides an “environment in which students are immersed and surrounded with language training (in oral language, reading, and written language) in a structured and deliberate manner, rather than with isolated language activities. The speech language pathologist (SLP) and special education teacher develop curriculum and teaching methodology to teach language structure, concepts, vocabulary, reading and writing in a small group that includes a variety of situations, activities, and modalities to provide reinforcement and a high level of mastery. All lessons from the previous day are reviewed the following day with new information integrated/related to the previous information to ensure retention. The Language-Based Classroom displays the ‘language’ of instruction that is constantly used throughout all curriculum areas.” (SE-5) Posters are created that visually displays the important story elements to provide students with a consistent, sequential pattern to enhance recall of essential points of the story and support organized, sequential oral expression of ideas; starter words for the four (4) predicate expanders to help expand sentence structure; and a chart displaying process writing. Ms. Gavin’s role includes suggesting, teaching, monitoring and supporting the implementation of the accommodations, modifications, and strategies stated in the Student’s IEP to reach optimal performance within the academic setting. Small group and individual instruction in writing and oral communication skills are provided with a focus on stated individualized goals and objectives. (SE-5) Grade level content will be modified to assist the Student’s comprehension and performance. He will receive specialized instruction to increase his understanding of words/concepts, oral language skills, understanding and use of language processing and retrieval strategies. He will also receive individualized therapy sessions, once per week for 30 minutes, in which the speech and language pathologist will target specific aspects of writing, oral expression, and language processing with which the Student may be having difficulty. Materials will be taken from or will be directly related to curricular content so that the Student may be taught to apply newly learned language strategies to classroom activities and assignments. Direct intervention for oral language will also be provided in a small group setting co-taught by the speech and language pathologist and the Language-Based Classroom teacher, once per week for 45 minutes, to facilitate the practice and carryover of skills learned within the Language-Based Classroom. They will also co-teach a written language session twice per week for 45 minutes. A 30 minute weekly consultation will be provided to the Student’s teachers by the speech and language pathologist. In consultation, she will provide strategies to enhance comprehension, ability to understand and utilize memory strategies to improve auditory memory, listening skills, word retrieval strategies to aid ability to recall; and increase knowledge of new vocabulary/concepts, and support social/pragmatic development. (SE-5) Teacher-directed instruction is used, with the teacher modeling language, monitoring for comprehension of instruction, encouraging active participation of the students, so as to foster comprehension and interaction with the material, rather than memorizing it. Group interactions will be highly structured and a multi-sensory instructional approach will be used as well as material review. Development of written expressive skills will be enhanced through the use of the Writing Process, to teach strategies such as story grammar schema, sequence maps, and webbing. Writing is included in all subjects throughout the day to promote carry-over of instruction, enhance memory. Written output modifications will be provided as needed. Pragmatics training (social communication) will take place across the curriculum. Specific teaching techniques will include visual imagery, Story Grammar Marker, rehearsal, use of (word retrieval) word banks, fill-in the blanks, matching, definitions, gestures, associations, synonyms, antonyms, initial sound/syllable cues, rehearsal visual chart of appropriate pragmatic skills, lists of new vocabulary/concepts for new unit or chapter, and pre-teaching of concepts. Written and verbal directions will be provided. Visual aids will be used to facilitate the Student’s recall and production of language. (Id.) Contextual cues will be used by the teachers to trigger his attention and help him focus on critical points, help him anticipate information, see relationships and organize and remember information. Written language methodology consists of small group instruction with a focus on individual goals and instruction in process writing. The “Framing Your Thoughts” program, a structured, sequential, multi-sensory approach to teaching written expression will be used. (SE-5)
· Ms. Laurie Farkas has worked as a Principal at the Sheffield Elementary School in Gill-Montague since August 1998. She is certified as a Principal/Assistant Principal PreK-6, 5-9, and 9-12, a general science teacher 5-9, and an Administrator of Special Education (all levels.) (SE-23)
· The school serves approximately three hundred sixty (360) students in grades three (3) through six (6). (Testimony of Ms. Farkas) She worked to develop the Language- Based Classroom program, which began in February 2001. The objective of the LBC program was to give students intensive education in reading, writing, and related language arts with support in as many areas as possible. Since its inception, Ms. Farkas has added speech and language services as well as additional supports to this classroom. (Id.) She conceded the classroom management deficiencies demonstrated by Ms. Ms.Grath, the first Language-Based Classroom teacher appointed. Ms. McGrath was officially terminate in early June 2002, and Ms. Minor, a School District staff member since 1987, whom she described as a “master” of classroom management, was reassigned to teach the Language-Based Classroom program on June 5, 2002. (Id.) Ms. Farkas testified that Ms. Montalvo will be the new paraprofessional in this program and stated that she has a gift for developing appropriate relationships with students, helping them produce work and behave appropriately. She has extensive training in behavioral interventions and will be trained in Wilson Reading through a Wilson training program. She will also receive on-going training in language-based interventions through Ms. Minor. (Testimony of Ms. Farkas) Ms. Montalvo is both gentle and firmly supportive, never seems to get irritated and is excellent at taking direction. (Testimony of Mr. Band)
· According to Ms. Farka, the Physical Education teacher is trained in adaptive physical education and is skilled at creating a class that “includes all children.” She also observed that the Music teacher is experienced with middle school children, and the Art teacher is adept at including “children of all abilities,” making accommodations and modifications as necessary. She testified that all of the Language-Based Classroom students are able to participate in extra-curricular activities, including the after-school enrichment program, after-school tutoring program, and the Artist-in-Residence program. The school offers on-site athletic and recreational programs through outside agencies, and the curriculum includes the DARE program and a Health Education component. Ms. Farkas noted that teachers at Sheffield Elementary are expected to make accommodations and modifications to meet the needs of “all” students in their classes. (Testimony of Ms. Farkas) Ms. Farkas stated that part of Ms. Minor’s responsibility will be to engage with Mr. Kovalsick in making accommodations and modifications to presentation, and expectations for the Student. (Id.) Ms. Minor and Mr. Kovalsick have an excellent working relationship. Mr. Kovalsick implements a curriculum based upon thirty (30) some years of experience, and has a wealth of knowledge about varied teaching approaches. Ms. Farkas testified that the Language-Based Classroom and integrated classroom teachers meet frequently before and after school to do planning. (Testimony of Ms. Farkas)
· Ms. Farkas & Mr. Band stated that none of the four (4) boys who were in the 6 th grade 2001-2002 program will be in Sheffield Elementary School for the 2002-2003 year. (Testimony of Ms. Farkas and Mr. Band) Ms. Farkas confirmed that the three (3) boys who will be entering the 6 th grade Language Based Classroom are gentle, well-liked students who have been positive participants in the classroom and school community, have no behavioral problems and were positively engaged with their peers in all subjects. The same is true for the one 4 th grader who has been designated to the program. (Testimony of Ms. Farkas) Two of the 5 th grade students were described as “bright students and conceptual thinkers, who have difficulty with the reading and writing processes.” (Testimony of Mr. Band)
· Mr. Ira N. Band has a Masters Degree in Educational Psychology, a Certificate of Advanced Study in School Psychology, and is a Doctoral Candidate in School Psychology. (SE- 22) He is certified as a school psychologist for all levels. (Id.) Mr. Band performs evaluations, meets students for individual counseling, designs Behavior Support Plans and Behavioral Intervention Plans, and performs Functional Behavioral Assessments. He has frequently consulted to school districts, assisting them in creating plans to reduce anxiety and increase positive social behavior. (Testimony of Mr. Band) He divides his time between two schools in Gill-Montague. Mr. Band will provide the Student with a 30 minute weekly individual counseling and will be involved with him on an informal basis. He will also be responsible to consult the Student’s teachers. His initial objective would be “making Joseph comfortable” with him. His staff includes a student adjustment counselor, a social worker and an intern at Sheffield Elementary School. They all work “as a team.” Mr. Band would provide direct services to the Student while his team would be familiar with him and run the Social Skills group. (Testimony of Mr. Band) Kevin White is the team member responsible to provide the social skills curriculum as part of the Language- Based Classroom. Mr. White facilitates constructive feedback, integrating social skills training while targeting specific language skills for the Language-Based Class. To facilitate as much social bridging as possible, in terms of peer acceptance and involvement with regular education students, the Social Skills group frequently invites “guests” from the regular 6 th grade classroom. (Id) Mr. Band will also assist the Student transition back into Sheffield Elementary. (Testimony of Mr. Weber)
· Mr. Richard J. Weber holds a Master of Education degree in Special Education and is currently enrolled in a doctoral program at the University of Massachusetts. (SE-19) He is certified as a Teacher of Special Needs 5-12, Middle School Teacher 5-9, Administrator of Special Education (all levels), and Director of Pupil Personnel Services. He is currently the Director of Special Education/Student Services for Gill-Montague and has held that position since July 10, 2001. (SE-19)
· Mr. Weber participated in the Team meetings held in December 2001 and in January 2002. He testified that in January Ms. Christenson provided information regarding the Student’s then current performance levels. Mr. Weber corrected Joseph’s proposed schedule and Service Delivery grid to reflect the twice-daily 1:1 intervention regarding organization skills, social studies, and science would be co-taught by the LBC teacher, there would be both direct services and consultation from the occupational therapist and school psychologist, and a paraprofessional would accompany Joseph to Physical Education, Music, and Art. Mr. Weber also corrected the schedule and grid to include coverage at lunch and recess by either the LBC teacher or aide, writing services two (2) times per week from the speech/language pathologist, forty-five (45) minutes per week in oral expression, and the inclusion of the social skills program taught by Kevin White. Mr. Weber noted that there were omissions in the original grid of services which were, in fact, implemented in the Language-Based Classroom during the 2001-2002 school year. With regard to social studies and science, the TEAM determined that the Language-Based Classroom teacher would develop accommodations and modifications and help to plan lessons to meet the Student’s needs. For instance, Ms. Minor will have the option to take a group of students out of social studies and science and continue to work on these subjects in the Language-Based Classroom if needed. (Testimony of Mr. Weber)
· Mr. Weber testified that assistive technology, such as the use of an Alpha Smart and the computer lab to assist the Student to communicate his ideas on paper are available, as well as other software to help the Student develop typing skills, something with which he has difficulty. He spoke highly of Linda Gavin, the speech and language pathologist, Ms. Minor, the special education teacher whom he supervises, and Lauri Olson-Porter, the occupational therapist, during his testimony. Mr. Weber also stated that the integrated classroom teacher, Richard Kovalsick, possessed the competence to integrate the Language-Based Classroom students into his social studies and science classrooms. (Testimony of Mr. Weber) He explained that the math class proposed for Joseph is very small, with no more than two to four students. All of those students have similar language-based disabilities. Mr. Weber stated that Kevin White’s social skills program includes techniques to help the Student learn to self-advocate. The program is designed to provide strategies for students to use when they are experiencing difficulties in academic areas, with emotional problems, or problems with other students or adults. Teachers are also involved in the social skills program so that they can remind students to use the strategies they have learned when difficulties arise.
· Ms. April Minor holds a Masters of Education degree. She is certified as an elementary teacher K-8 and teacher of special needs K-9. (SE-21) She is not certified as a severe special education teacher. Ms. Minor completed Level One of the Wilson Reading training course, in which she is certified, and took all coursework related to Level Two and uses this multi-sensory sequential program based on aspects of Lindamood-Bell and Orton-Gillingham, with her students. She also uses portions of Lindamood-Bell and Orton-Gillingham, which may be effective for students on an individual basis. She wrote a grant to bring mediation and conflict resolution to Gill-Montague and was the coordinator of this program in the middle school and high school. She has also provided consultation to other teachers regarding discipline.(Testimony of Ms. Minor )
· In terms of integrating language-based strategies into the curriculum, she uses the principles of “clarity of instruction” which come out of Landmark College and the Landmark Study Skills Program, using the Cornell note-taking methodology which helps students keep materials organized. (Testimony of Ms. Minor) This method calls for key words are written on one side of a page, while information appears on the other side. She adapted the Landmark Study Skills Program to the 7 th and 8 th grades, and now uses aspects of the program at the 6 th grade level. With it, the students are able to keep their materials organized and to study for tests, and the notebook serves as a communication device between teacher, parent and student. (Testimony of Ms. Minor) She has worked with several children who present co-morbid disabilities in reading, writing, and math. (Testimony of Ms. Minor)
· Ms. Minor’s vision for the Student’s reading program includes phonics/spelling (language structure, a reading/writing interactive piece) and reading comprehension. The phonics/spelling would be primarily Wilson-based methodology, using words taken from the 6 th grade curriculum. The Lindamood-Bell format will be used at times if he has difficulties in the Wilson program. (Id.) The Student’s reading program will involve reading three types of material, two of which will happen through his tutorial. The first type of material is “controlled text;” the second “non-controlled” text, and the third portion is a forty-five (45) minute class which follows the 6 th grade literature-based program. Pre-reading strategies and fluency work are utilized. The Student will not be expected to read 6 th grade material without support. As part of his reading program, the Student may also work with younger students in a program that pairs 6 th graders with kindergarten students for reading, thereby contributing to the school community. Her goal is that the Student reads for pleasure and to gain information. (Testimony of Ms. Minor) She combines reading and writing instruction. The writing program also consists of three parts. During the Wilson work he will write dictated sentences to hold in his working memory, which will help to expand active working memory, an important skill in the writing process. He will have active writing samples and edit them. Another part consists of writing a narrative each week on the computer. Ms. Minor would like to introduce the Student to Power Point and the use of the Internet to gain information and do presentations so that the physical amount of his writing may be reduced but his communication will benefit. The Student can use spell check and grammar check, as well as the thesaurus which will help his editing skills. (Testimony of Ms. Minor)
· In math, Ms. Minor proposed ongoing diagnostic teaching initially to ascertain what the Student’s actual capabilities are. She believes that while the Student may have solid calculation ability but is concerned about his problem solving ability. (Testimony of Ms. Minor) She will be following the 6 th grade curriculum. She suggested integrating math into a science project, since the student understands concepts best when they are in context. With regard to science and social studies, she envisions a co-teaching model in which she and Mr. Kovalsick present information which would already be written out in Cornell method notes. Many concepts would be pre-taught through the vocabulary portion of Joseph’s tutorial. The science text used in class is also read professionally onto tapes. Social studies would follow the same format. He will not read science and social studies materials without assistance. There are several projects planned in these classes which will offer the Student an opportunity to facilitate his social development through participation in small cooperative work groups. To facilitate peer interaction Ms. Minor intends on having the Student identify classmates whom he finds enjoyable, helpful and comfortable and include them in small cooperative groups. In Ms. Minor’s opinion, the language in Mr. Kovalsik’s classes will not be overwhelming to the Student. Mr. Kovalsik is very clear in his presentations and is conscious of his paraphrasing. He delivers information at an appropriate pace and checks with student’s to ensure that they are able to paraphrase what he says. (Testimony of Ms. Minor)
· Ms. Minor has worked with all of the service providers who are proposed for Student’s program including Linda Gavin, Lauri Olson Porter, Ira Band and Kevin White. The LBC classroom is also next door to the computer lab and Ms. Minor has been promised priority in scheduling three (3) periods a week there. She will directly supervise Gloria Montalvo, the Language-Based Classroom paraprofessional. Ms. Montalvo will report to her daily and Ms. Minor will support her work with the Language-Based Classroom students in art, music, and physical education. Ms. Montalvo will take notes on the content of the classes, and will watch the Student so that potential problems can be addressed before they develop. (Testimony of Ms. Minor)
RULINGS OF LAW
No disputes exist that the Student presents with severe disabilities which fall within the purview of the IDEA entitling him to special education services. The nature of his disability, three inter-related, but separate disabilities, namely a reading disorder, a written language disorder, a math disorder compounded with attentional problems and memory deficits, is also not disputed. The Parties however, see the severity of his needs differently. Thus, the Parents believe that he should continue placed at Eagle Mountain whereas Gill-Montague argues that the Student’s needs can be appropriately met in the District. The question before me is whether the placement offered by Gill-Montague for the 2002-2003 school year is the least restrictive environment capable of assuring the Student a Free Appropriate Public Education (hereinafter, “FAPE”). Upon considering the evidence before me, I am persuaded that the program offered by Gill-Montague with some modifications, constitutes the least restrictive environment that can assure the Student a FAPE. My reasoning follows:
I. Legal Framework :
In deciding special education cases, the Massachusetts legislature adopted the Federal standard in January 2001. Under this 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 needs. Federal law also requires that the student be able to fully participate in the general curriculum to the maximum extent possible. 20 USC §1414(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 # 00-0912, 6 MSER 194 (SEA MA 2000).
The Massachusetts statute defines FAPE as “special education and related services as consistent with the provisions set forth in the 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”, including the state curriculum frameworks. 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).
The United States Courts have interpreted a FAPE to mean that the LEA is responsible to provide the student meaningful access to an education, in compliance with the IDEA requirements that the IEP provide “significant learning” and confer “meaningful benefit” to the student. (For a discussion of FAPE see Hendrick Hudson Bd. Of Education v. Rowley , 458 U.S. 176, 188-189 (2992); Cedar Rapids Community School District v. Garret F., 526 U.S. 66 (1999); Burlington v. Department of Education , 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).) The student’s education must provide “personalized instruction with sufficient support services to permit the child to benefit educationally.” 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) (“benefit conferred need not reach the highest attainable level or even the level needed to maximize the child’s potential”); GD v. Westmoreland School District , 930 F.2d 942 (1 st Cir. 1991) (“FAPE may not be the only appropriate choice, or the choice of certain selected experts, or the child’s parents’ first choice, or even the best choice”). It must however, offer an opportunity for meaningful educational progress or benefit.
In BSEA # 02-1327, Hearing Officer Crane discussed the First Circuit Court and other Courts of Appeal’s interpretation of minimally acceptable standards of educational progress in terms of
“effective results” and “demonstrable improvement” in the “various educational and personal skills identified as special needs.”
Several federal Courts have further explained that progress should not be evaluated in a vacuum, but rather in the context of the potential of the particular student to benefit from the educational services. 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 . . . .” And, the identified purpose of the state special education regulations is “to ensure that eligible Massachusetts students receive special education services designed to develop the student’s individual educational potential.” Several courts have also noted that educational progress may be determined through measurable goals in an IEP.
In summary, FAPE requires special education and related services that are reasonably calculated to permit a student to make meaningful educational progress. Meaningful educational progress includes “effective results” and “demonstrable improvement” (as those terms are used in the First Circuit Court of Appeals decisions cited above), and is evaluated in the context of the student’s educational potential (as discussed above). In Re: Arlington Public Schools , BSEA # 02-1327, issued on July 23, 2002.
In light of this legal framework, analysis of the evidence in the case at bar shows that the program proposed by Gill-Montague with some modifications is the least restrictive appropriate alternative capable of providing the student with a FAPE in accordance with State and Federal law.
II. Gill-Montague’s Program :
The IEP drafted by Gill-Montague for the 2002-2003 school year, the Student’s 6 th grade calls for placement of the Student in the Language-Based Classroom at the Sheffield Elementary School described below. (SE-3)
The Student’s proposed IEP for the 2002-2003 school year resulted from Team Meetings held on August 22, 2001, December 11, 2001, and January 8, 2002. (SE-3) The Student’s primary disability is listed as a Specific Learning Disability, requiring a separate classroom setting. The Parents, advocate Buffy Dewey, and Eagle Mountain Director Hedi Christenson, were members of the Team and participated in the discussions. (SE-3; SE-27; SE-28) The Student’s most recent academic scores were obtained from an evaluation by Dr. Muzio of December 2001, and the latest testing from Eagle Mountain. The IEP describes the Student as having disabilities in all areas of language processing, revealed through his weakness in written language, verbal expression, and organization. He requires that information be given in a sequential, organized manner. He needs constant monitoring to ensure his understanding of concepts. (SE-3) His deficits and areas of weakness affect his ability to: understand new and abstract vocabulary and concepts when presented without contextualized information and the use of pre-teaching strategies; process and respond to fast-paced discourse that is not inter-dispersed with teacher-directed comprehension checks; retain information in memory while thinking and responding to mental tasks at hand without the use of visual aids and interactive instruction; recall words and express knowledge concisely and coherently without modeling and prompting cues; respond to multi-step directions without verbal prompts from a teacher; and respond to open-ended types of questions and writing prompts. (SE-3) The IEP states that the Student’s progress in all areas of academic work is very slow with particular difficulties with written output and because it is hard for him to demonstrate automaticity in the use of skills learned, pacing is extremely important. (Id.) His Vision Statement goal is that he will work at an academic level consistent with age-level peers, will be able to participate independently in a standard curriculum, and attend college preparatory courses at the secondary level. (Id.)
As a result, the IEP proposes that the Student receive the following accomodations: “language-based instruction in mathematics and all language arts subjects; interactive, multi-sensory approach to instruction; use of pictures and visual aids to help with organization, memory, and retrieval; direct instruction and modeling in the use of semantic/graphic organizers to facilitate language processing, organization and recall of spoken and written language; pre-teaching and modeled use of important vocabulary and concepts in a text; semantic links and retrieval strategies modeled and practiced; key vocabulary and concepts written on the board to refer to when needed, with frequent review; the connection between already learned concepts and new material explicitly stated; use of story grammar tools during reading and writing activities to facilitate comprehension of spoken and written language story forms; allow extra time to process, retrieve and formulate responses to oral information and questions; oral directions will be given one at a time and should be simply stated; preferential seating in mainstream classes; frequent comprehension checks during instruction/discussions by asking closed-ended questions and by providing frequent summarizations of discussions; short breaks throughout the day to prevent listening fatigue; use of various test formats to facilitate recall of information; testing in a small group setting with minimal distractions, untimed testing; test directions read to and clarified for [the Student], a scribe provided during any written output portions of the assessments when permitted by test protocol; writing assistance and/or extra time to write during class-work and tests, Quick Pad or Alpha Smart II for classroom use when [the Student] has mastered keyboard typing skills, and a calculator for classroom use when permitted.” (SE-3; See also SE-27 and SE-28)
The IEP provides that grade level content and subject tests will be modified to meet the Student needs regarding comprehension and performance. The Student will receive specialized instruction to increase his understanding of words/concepts, oral language skills, understanding and use of language processing and retrieval strategies. Services will be delivered through small group instruction and assistance for reading, writing, spelling, and oral communication skills. For math, science and social studies he will receive small group teacher instruction in the Language-Based Classroom when needed. Language therapy will be provided on an individual basis, and within a small group setting to facilitate the practice and carryover of the skills he learns. (SE-3)
The Student has difficulties with tasks that involve writing because his fine motor skills are weak. Therefore, written assignments should focus on quality versus quantity. He will receive occupational therapy in the areas of handwriting and keyboarding skills. Expectations for written work will be modified due to address his increased anxiety and frustration, another area of concern, that result from his difficulties with graphomotor skills. He is easily overwhelmed with the “quantity” of work and requires support with the development of independent organization and time management skills. He requires structure and guided support to help him with self-esteem issues and need for control as limited social interactions with peers has affected his ability to work within larger group settings. The Student is expected to participate in a social skills program with his classmates on a weekly basis and in an Oral Expression group lesson. He is expected to participate in all statewide and District assessments with accommodations. Because of reported issues with impulsivity, the school’s policy in determining detentions and suspensions will be modified. An assignment book, phone calls/e-mails, and meetings will be used to keep the parents appraised of the Student’s progress. (SE-3)
The IEP offers an extended school year consisting of a 675 minutes per week for six weeks summer program for reading, writing and decoding, and special transportation on a mini-bus during the transitional period. (SE-3)
The corrected service delivery grid in the Student’s proposed IEP for the 2002-2003 school year offers the following services: weekly consultation by the speech/language pathologist (30 minutes) and Language-Based Classroom teacher (60 minutes) and consultation as needed by the occupational therapist and school psychologist. Special education in the General Education Classroom (inclusionary services) includes co-taught science/social studies with the Language-Based Classroom Teacher, and support in art, music, physical education (Language-Based Classroom aide) and lunch/recess (Language-Based Classroom teacher, the aide; as well as other staff). (SE-28) Direct special education and related services in the Language Based Classroom include: writing (co-taught two (2) out of four (4) times a week with the speech/language pathologist); 1:1 reading daily; small group reading (Wilson) daily; small group math daily; oral expression co-taught with the speech/language pathologist; 1:1 counseling with the school psychologist; social skills co-taught with the adjustment counselor, 1:1 speech/language therapy; 1:1 occupational therapy; and 1:1 organizational support/instruction daily in the morning and afternoon. (SE-28)
In its closing brief Gill-Montague offered an analysis of the proposed schedule for the upcoming 2002-2003 school year. (SE-27) It shows that, of the five hours twenty minutes (5:20) instructional portion of the school day (excluding lunch/recess), twenty-nine (29%) percent (7:55 per week) involves 1:1 special education or related services; in addition, forty-six (46%) percent of Joseph’s instructional day is allocated to small group instruction within the Language-Based Classroom (staff-student ratio ranging from 1:3 to 3:8); and twenty-five (25%) percent involves supported integration (3:45 per week of social studies/science co-taught by the Language-Based Classroom teacher, and 3:00/week of art, music, and physical education supported by the aide). (SE-27)
Dr. Souweine, Ms. Farkas, Mr. Weber and Dr. Muzio all agreed that the Language-Based Classroom Program during the 2001-2002 school year with Ms. McGrath had major class management difficulties that interfered with the instruction. According to Ms. Farkas, Ms. McGrath allowed misbehavior to occur, had difficulty maintaining compliance with paper work and did not follow through on recommendations. Ms. Minor, the new classroom teacher for the 2002-2003 was described as a “Master” who has excellent classroom management style and great diagnostic ability. (Testimony of Ms. Farkas, Mr. Band) According to Mr. Band, Ms Minor “has a way of getting kids to feel good about themselves and is able to draw their skills out.” (Testimony of Mr. Band) The new paraprofessional and the rest of the service providers were described as committed, responsive, knowledgeable, effective professionals who are willing to make accomodations. (Testimony of Ms. Farkas)
In response to the Parents’ concerns regarding the Student’s ability to handle socio-emotional demands, raised at the January 2002 Team meeting, the Team proposed that this be handled through individual counseling with Mr. Band and participation in the social skills group with Mr. White, the social worker. (Testimony of Mr. Band)
Dr. Souweine testified that Ms. Gavin’s description of the Language-Based Classroom program at Gill-Montague was “very appropriate” for the population of students targeted and stated that this program would also be appropriate for the Student. (SE-5)
The Parents participated in the development of this IEP and their concerns were expressed and addressed by the Gill-Montague staff. Both Parents rejected this IEP in full on January 25, 2002.
III. Analysis:
There is no doubt that over the past years Eagle Mountain offered the Student a Free Appropriate Public Education where he was able to maximize his potential. David D. v. Dartmouth School Committee , 775 F.2d 411 (1 st Cir. 1985). (Testimony of Dr. Muzio and Dr. Souweine) The Student was found to be happy, healthy and well adjusted at Eagle Mountain and neither observer, Dr. Muzio or Dr. Souweine, witnessed any behavioral problems with him during their observations at that school. (Testimony of Dr. Muzio and Dr. Souweine)
The evidence supports a finding that the Student’s co-morbid disabilities are severe . (Testimony of Dr. Muzio) Dr. Muzio explained that the Student’s disabilities affect written expression, math and that he also has a reading disorder. He evidences problems with word retrieval and working memory, presents with visual perceptual weaknesses that impact his graphomotor functioning. This would cause him to find it more difficult than a typical student to take note of something that he sees on the board. He performs better if asked to recognize something rather than coming up with the correct answer from independent recall. His attention is also compromised but his social emotional functioning was found to be within typical ranges. (Testimony of Dr. Muzio) He requires a special education setting that offers integrated language based instruction across the curriculum to address his weaknesses. The information needs to be presented at his instructional level in all subjects. (Testimony of Dr. Muzio) Dr. Muzio opined that this specialized program should be geared toward students with severe learning disabilities. This program should provide small class size, specialized curriculum, opportunity for individualized instruction and an environment in which the academic and emotional needs of children with severe learning-based disabilities are specifically and consistently addressed. Dr. Muzio discouraged a regular education setting with provision of pull-out special education services. (Id.)
Dr. Souweine testified that in her opinion, the IEP proposed by Gill-Montague addresses the Student’s needs. She explained that it is important that all youngsters be in as normal an environment as possible, with as many peers as possible and that there is a danger in communicating to students that they can only be successful in a specialized setting. She opined that ultimately non-participation in more inclusive types of settings erodes their self-esteem as learners. Dr. Souweine believes that the Student could be successful and could benefit from a more normalized environment. Dr. Muzio found many parts of the proposed IEP appropriate specifically section C of the grid in SE-3 and also the recommendations of the Speech and Language Pathologist as described in SE-5. (Testimony of Dr. Muzio) Dr. Souweine concurred with Dr. Muzio regarding the appropriateness of Ms. Townes’ findings and recommendations for the Student. (Id.) Dr. Souweine had no concerns about the Sheffield Elementary School Language-Based Classroom program, assuming that the change in staff proposed for the 2002-2003 school year provides competent behavior management from the teacher. (Testimony of Dr. Souweine)
In general, Dr. Souweine was of the opinion that the materials used in the Language- Based Classroom were appropriate for the targeted population. They included specific phonological programs and writing approaches to improve writing fluency and to employ structured organization. The day’s organization was well-thought-out, included appropriate breaks and “provided a nice structure” for students. (Testimony of Dr. Souweine) During her observation of the Language-Based Classroom at the Sheffield Elementary School, Dr. Muzio found the content of the lessons to be appropriate for the most part, as was the instruction itself. (Testimony of Dr. Muzio) She did not observe the mainstream classrooms but expressed concerns regarding the presentation, environment, note-taking, class size. (Testimony of Dr. Muzio) Dr. Souweine observed the integrated parts of the program at Sheffield Elementary, namely the science and social studies classes and stated that they were done well, with a lot of care to ensure that the students were successful in the mainstream. It was smooth. (Testimony of Dr. Souweine) She noted that what was taught in science overlapped with things taught in other classes. (Testimony of Dr. Souweine)
The three 5 th grade students observed in the Language-Based Classroom at the Sheffield Elementary School, during the Spring of 2002, who will be the Student’s peers during the next academic year, have similar needs to the Student’s, as evidenced by their IEPs. (Testimony of Dr. Souweine; See also SE-16, SE-17, SE-18) According to Dr. Muzio, one of these fifth graders has needs similar to those of the Student while another presents with more significant non-verbal disabilities that affect his social functioning. (Testimony of Dr. Muzio) The third peer has disabilities that are primarily based in auditory processing. She opined that while their needs are different, the students would benefit from portions of the same type of program. (Testimony of Dr. Muzio) Dr. Souweine concurred and stated that although each child is unique in terms of needs, the techniques appropriate to address the needs of these students would also benefit the Student. (Testimony of Dr. Souweine)
The evidence supports the Parents’ contention that success of the program for the Student will require clarity in the role of the staff, accountability of the staff, and basic checks and balances to ensure a quality educational program. (Testimony of the Father, Dr. Muzio)
Mr. Weber testified that the one hour planning time which appears in the Student’s IEP represents one hour during the school day. According to him, teacher planning also takes place before and after school, during staff meetings, and in professional development activities which do not appear on the IEP’s Service Delivery grid. He stated that the amount of time Ms. Minor would spend in preparing accommodations and modifications for the Student is not reflected on the grid because the grid reflects student hours, not teacher hours. Without specific scheduled times for all of this paraprofessional development and specific consultation time between the special education teacher and the paraprofessional, set out in the IEP, it is unlikely that the Sheffield Elementary School staff will have sufficient time to help the Student accomplish the goals in his IEP.
Mr. Weber also noted that training and supervision of the Student’s aide is not contained in the IEP’s Service Delivery grid, and that the District has planned “a lot” in terms of paraprofessional development. Mr. Weber, Principal Farkas, and Ms. Minor would be responsible for ensuring that the aide(s) who cover(s) lunch, recess and specials work(s) effectively with the Student and others. Regarding the efficacy of using the assistance of the paraprofessional for the inclusion of the Student in specials, lunch and recess, according to Dr. Muzio this would depend on use of the aide. She supported using the aide as an extra teacher who could check with the Student regularly to ensure that he was attending and understanding and could assist him if there were a problem. Among the possibilities for intervention Ms. Minor stated that if the aide advised her of a problem, she could work with the Student on the specific problem after class. There is however, no specific time built into the Student’s schedule for this remedial work to occur. Therefore, it may have to occur during lunch, recess, after school or at another reasonable time.
Both Dr. Muzio and Dr. Souweine opined that the Student needs to focus on language skills in all of his substantive classes. Given the District’s proposed program, this can only be accomplished with appropriate modifications implemented in his inclusion courses. The evidence is persuasive that in order for the Student to access the curriculum in a meaningful way the language and techniques of his inclusion classes require modifications. (Testimony of Dr. Muzio, Dr. Souweine, Mr. Weber) Said modifications may require pre-teaching, post-teaching and modification of the reading materials, the content and tests, among others; a very time-consuming task which cannot be accomplished in the one hour per week lesson planning allocated to the special education teacher in the Student’s IEP. (Testimony of Dr. Muzio and Dr. Souweine) Gill-Montague shall provide additional time in the Student’s IEP for the aforementioned modifications without sacrificing other important services to the Student.
Along these lines, the Student’s IEP shall be modified so that Ms. Minor is given additional time to modify the reading materials and tests in the inclusion classes as well as additional time to consult with the teachers in the Specials regarding the Student’s needs. Modification of the materials can be worked in conjunction with the speech and language pathologist.
The Parents raised concerns regarding Ms. Minor’s testimony that she would pre/post teach curriculum vocabulary to the Student so that he can follow what takes place in the inclusion classes. In accomplishing this she intends to develop he Student’s sight words. Since the Student is currently reading at the 3 rd grade level and developing sight words involves memory, an area in which the Student has substantial difficulties, he may require additional modifications. Valerie Townes’ (speech and language evaluator) reports that the Student’s receptive language skills are in the 9 th percentile and that he demonstrates fatigue during tasks requiring focused listening must be considered as well. (SE-26) For these reasons, Dr. Muzio did not believe that the Student could function in a regular education class with typical peers. (Testimony of Dr. Muzio) Dr. Souweine was informed at Eagle Mountain that he requires a great deal of work in order to make progress because of the severity of his disabilities. (Testimony of Dr. Souweine) While I am persuaded by Dr. Souweine’s recommendation that the Student would benefit from a less restrictive, more inclusive education, consistent with State and Federal law, the rest of the evidence pointing to the Student’s possible difficulties in inclusion models cannot be ignored. If it is found that the Student is unable to progress effectively in the inclusion courses despite these modifications, the possibility of his receiving direct services or small group instruction in social studies and science, outside the general curriculum, must be left open as an option.
The staff at Gill-Montague insists that the Student’s disabilities are not severe even when they have not had the benefit of having worked with or observed the Student. Mr. Weber and April Minor testified that the Student’s difficulties were moderate. (Testimony of Mr. Weber and Ms. Minor) Given this view, Mr. Weber testified that in his opinion, the Student would have made progress in the Language-Based Classroom at the Sheffield Elementary during the 2001-2002 school year. Notwithstanding this part of his testimony, which I do not credit, the evidence is overwhelming that given the amount of difficulties with classroom management, direction and supervision, meaningful progress was most unlikely to occur. The evidence is equally overwhelming that the same however, is not true for the 2002-2003 school year.
Given Gill-Montague’s position and their view that the Student’s needs are only moderate, to this extent the Parents’ concern regarding the District’s ability to implement an appropriate program for the Student is reasonable. To ensure that the program is implemented in a manner that is effective for the Student across the board,the District is ordered to 1) hire Dr. Cheryl Muzio as a consultant to oversee the effectiveness of the program for the Student and 2) to implement her recommendations. Dr. Souweine and Dr. Muzio generally agreed in their recommendations for the Student but the Parents’ support of the program at Gill-Montague which is essential to the success of the Student is likely to occur if someone they trust, specifically Dr. Muzio, oversees the effectiveness of the program for the Student.
Should Dr. Muzio not be able to fulfill this responsibility, then Dr. Souweine shall be considered as a consultant. Consultation shall include observation of the Student in inclusion, small group and direct services settings as well as during structured and unstructured times. The Consultant shall have access to the materials used in the different settings and shall have the opportunity to perform those observations at least monthly. Consultation time may include any other task that the District deems appropriate.
Gill-Montague suggested that the Student would benefit from counseling for frustration, tolerance building and anger management. (SE-12) These concerns were brought up during the Team meeting of December 2001, when Eagle Mountain personnel reported that the Student had episodes of inappropriate behavior including hitting peers without provocation. (SE-12) In terms of psychological help, the “severe” social issues reported by Ms. Christenson of Eagle Mountain could be addressed directly or on a preventative basis by way of social skills training, counseling, and behavioral interventions if necessary. (Testimony of Dr. Souweine) These services are a part of the Student’s proposed IEP for the 2002-2003 school year and are found to be appropriate.
Lastly, it is essential that the Student become acclimated to the new building and to his new environment at the Sheffield Elementary School. As recommended by Mr. Weber and Mr. Band, he should be brought in to meet the teachers, introduce him to the building meet with Mr. Band and maintain the lines of communication open between home and school. (Testimony of Mr. Weber, Mr. Band) The Parents’ participation and support of this program is key to the Student’s success.
Since I have found that the Language-Based Classroom at the Sheffield Elementary School in Gill-Montague with modifications is the appropriate program for the 2002 through January 2003 school year, I need not evaluate the appropriateness of the program offered at Eagle Mountain.
ORDER
Gill-Montague is ordered to offer the Student a language-based program at the Sheffield Elementary School consistent with this decision, to retain Dr. Cheryl Muzio as a consultant for the Student’s program for the 2002-2003 school year and to make all other modifications to the Student’s program and IEP as stated Supra in this decision.
The Student’s Team shall be convened the end of October to review the Student’s overall progress as well as his performance in science, social studies and math. The Team shall determine whether the Student may continue to participate in the science and social studies inclusion classes or whether he may need small group instruction in these areas, outside the regular education classroom. To the extent that the Team fails to reach consensus, the Parties right to request a hearing on this issue is preserved. Dr. Muzio shall have the opportunity to observe the Student in all areas including the inclusion settings and shall be invited to participate when the Team meets to discuss her observations and recommendations.
So ordered by the Hearing Officer,
Rosa I. Figueroa
Dated: August 28, 2002