COMMONWEALTH OF MASSACHUSETTS
Bureau of Special Education Appeals
In Re: Xola1 & Boston Public Schools
BSEA# 05-4594
DECISION
This decision is issued pursuant to M.G.L. c. 71B and 30A, 20 U.S.C. § 1401 et seq. , 29 U.S.C. § 794 and the regulations promulgated under those statutes. A hearing was held in the above-entitled matter on July 14, 2005, at the Massachusetts Department of Education in Malden, MA. Those present for all or part of the proceeding were:
Mother
Isabel Stevens Psychologist
Lorie Miller Friend of Parent
William Henderson Team Facilitator, Boston Public Schools
Joy Salesman-Oliver Principal, Higginson School, Boston Public Schools
Margaret Wyse-McLaughlin Wilson Tutor 2003-2004, Boston Public Schools
Ingrid Samuel 3 rd Grade Teacher, Boston Public Schools
Aida Ramos Assistant Program Director, Boston Public Schools
Paula Brassil Orton-Gillingham Tutor, Boston Public Schools
Amy Leuchte Law Clerk, Boston Public Schools
Elizabeth Kurlan Program Director, Boston Public Schools
Andrea Alves-Thomas Attorney, Boston Public Schools
Caitlin Dale Intern, Ed Law Project
Shruti Desai Attorney, Ed Law Project
Marlies Spanjaard Attorney for Student
Lindsay Byrne Hearing Officer, BSEA
The official record of the hearing consists of documents submitted by the Parent marked P-A through P-H; documents submitted by the School marked S-1 through S-11; and approximately 6 hours of recorded testimony and argument. The School requested, and was granted, a brief extension of time in which to submit written closing arguments. Written closing arguments were received from both parties on July 21, 2005, and the record closed on that date.
Issues
1. Whether the Student is eligible to receive extended year services as a component of a free, appropriate public education?
2. Whether the 2004-2005 IEP provides the least restrictive setting in which the accepted special education services can be delivered?
Summary of the Evidence
There is no dispute about the nature of the Student’s disability, nor about the appropriateness of the accepted special education services. The Parent has not raised any significant procedural issues. The substantive issues are narrowly focused: whether the Student requires continuation of intensive Orton-Gillingham tutoring during the summer school holiday period in order to prevent substantial regression in his basic phonological processing skills; and whether the Student should receive his special education instruction in an “inclusion” classroom rather than a resource room. Only evidence that is pertinent to the resolution of these issues is discussed below:
1. Xola is a nearly ten year old Boston resident. He has just completed the third grade at the Higginson School. He will begin the fourth grade in September 2005. Xola is described as likeable, charming, motivated, creative and hard working. He has been diagnosed with dyslexia and attention deficit hyperactivity disorder. Functionally these disorders are expressed in discrete language weaknesses in phonological processing skills, sequential skills, and visual-spatial skills, as well as in poorer than average working memory and executive skills. These weaknesses result in specific difficulty with the reading rate, reading comprehension and written expression expected at his grade level. In other areas Xola tests and functions in the average range for his grade. (Parent; Stevens; Samuel; S-5; P-D; S-5; S-6; S-8; P-E; P-F)
2. Isabel Stevens, a psychologist at North Shore Children’s Hospital, evaluated Xola on two occasions. (P-G) In January-February 2003, when Xola was seven years old, she found that he had age appropriate vocabulary and social judgment skills as well as broadly average receptive and expressive language skills. His difficulties centered on weak phonological awareness and memory skills, weak attention skills and executive function deficits. Though, at that time, he was achieving at his expected first grade level, Dr. Stevens recommended that he: participate in a structured, sequential reading program; use a writing process approach; receive an occupational therapy assessment; be placed in a quiet, structured, distraction free classroom environment which incorporates simple, sequential instructions and explicit teaching of study and organizational skills. (P-F; Stevens)
3. During the subsequent 2003-2004 school year Xola worked with a tutor using the Wilson Program, a structured, phonetic, sequential, multisensory reading program. Xola made effective progress in reading skills during that 2 nd grade year at the Higginson School. His tutor, Margaret Wyse-McLaughlin testified that based on his progress during the school year, she would not have anticipated regression in skills during the summer 2004 break between 2 nd and 3 rd grade. (Parent, Wyse-McLaughlin)
4. Dr. Stevens re-evaluated Xola in August 2004. The essential findings and recommendations remained the same as those contained in the 2003 report. (Compare P-E and P-F) There is no recommendation for an “integrated” or “inclusion” program in either report. Dr. Stevens testified that she has no training or background in education or special education, did not observe Xola’s classroom or speak to his teachers. She also acknowledged that inclusion programs are implemented differently in different school systems and that she could not discuss whether a Boston “inclusion” program would be appropriate for Xola. Dr. Stevens testified that the decline in Xola’s phonological processing as indicated on the CTOP score, from average in 2003 to the 5 th percentile in 2004 could indicate substantial regression in his skills, though it could also indicate inappropriate interventions and/or attentional issues. Dr. Stevens stated that the services and accommodations outlined in the 2004-2005 IEP developed by Boston are consistent with the recommendations she made in the August 2004 evaluation report. (Stevens; P-E; P-F; S-1; P-1)
5. The only academic achievement test administered by Dr. Stevens to Xola in both the January/February 2003 evaluation and the August 2004 evaluation, shows growth in two discrete skill areas:
WIAT 1/03 8/04
Word Recognition 1.3 2.1
Pseudo word K-9 1.8
(P-E and P-F)
6. Dr. Florence Lai of the Massachusetts General Hospital Learning Disorders Unit wrote a letter to the Team on October 28, 2004 at the Parent’s request. She wrote that Xola should participate in a rule based, phonetic reading program such as Orton-Gillingham individually or in a small group 4-5 times per week. She also wrote that it would “be helpful” if Xola were in “an inclusion class where an aid…may be able to help him…with reading…”. She recommended continuing occupational and speech language therapies, preferential seating and a medication trial. (P-C, P-B)
7. The Team convened on November 15, 2004. The Team considered assessments and progress reports prepared by the educational evaluator, Ms. Napue, the speech-language pathologist, the occupational therapist, and the classroom teacher, as well as the evaluation report of Dr. Stevens and the recommendation letter from Dr. Lai. (S-3-10; P-B, C, E, F) The information was consistent: Xola needed direct sequential and multisensory instruction in a quiet, structured environment to maximize his comprehension. He needed extra processing and production time as well as organizational and output modifications in the regular classroom. He needed to continue occupational and speech therapies. He needed to participate in a structured, sequential reading program. There was no recommendation for or discussion of extended year services. The was no discussion of an “inclusion” program.
8. The Team developed a 2004-2005 IEP providing for special education services in a resource room or small group setting to address goals in the areas of reading, writing, arithmetic, speech and occupational therapy. Xola was removed from the regular 3 rd grade class for approximately two hours per day for his special education services. In addition Paula Brassile provided one-to-one Orton-Gillingham tutoring at his home three days a week after school. (S-1, P-1; Parent; Brassile) The proposed IEP was sent to the Parent in November 2004. The Parent returned the IEP on March 29, 2005, accepting all the special education services but rejecting the failure to provide Orton-Gillingham tutoring services during the summer.
9. The Team reconvened on April 25, 2005, to discuss the Parent’s request for a summer tutoring program and an inclusion class placement. The Team facilitator, William Henderson, testified that the Team has no evidence that Xola would regress in the summer “any more than anyone else” or that it would take him longer to recoup his skills. Mr. Henderson also stated that the Team concluded that Xola was making adequate yearly progress toward achievement of his goals with his current IEP services and placement and thus that movement to a different model was not warranted. (Henderson; S-2)
10. Diagnostic Reading Assessments conducted by Boston during the past two years show slow, steady growth in the acquisition of basic reading skills:
Date – Level
Spring ’03 – 16
Winter ’04 – 24
Spring ’04 – 28
September ’04 – 30
March ’05 – 34
June ’05 – 38
(P-9, 10)
11. Paula Brassil has provided individual Orton-Gillingham tutoring to Xola three days a week after school since November 2004. She testified that he is making slow, gradual progress. Ms. Brassil received her Orton-Gillingham training at Massachusetts General Hospital. She testified that MGH recommends that if the Orton-Gillingham intervention is working it be continued in the summer to maintain progress. Because Ms. Brassil believes that Xola is making gradual, steady progress with the Orton-Gillingham service model she recommends continuing Orton-Gillingham tutoring with Xola during the summer vacation. Ms. Brassil acknowledged that she had not seen Xola lose any skills after school vacations, and could not know whether or not he would regress during the longer summer break without Orton-Gillingham tutoring. (Brassil)
12. The Parent testified that she is seeking summer tutoring services because Xola is doing so well with the Orton-Gillingham instruction. Now he is an o.k. reader, according to the Parent, but she wants him to be great. The Parent also testified that she believes the “pull out” model of regular classroom/resource room placement is inappropriate, primarily due to poor Team communication and poor coordination of modifications such as reduced homework demands. The Parent did not observe either the regular education classroom or the resource room during the 2004-2005 school year. She did not describe the “inclusion” model of service delivery she requested. (Parent)
Findings and Conclusions
There is little dispute about the nature and severity of the Student’s disability. The issues presented here center on the extent and setting of the special education services necessary to address Xola’s special learning needs. The Parent contends that Boston has failed to develop an IEP that ensures a free, appropriate public education to Xola because it does not extend tutoring services into the summer vacation and because the academic year special education services are not provided in an “inclusion” setting. Boston asserts that the Team considered both parental requests and rejected them after determining that Xola was progressing effectively with the type of services he currently receives through the 2004-2005 IEP. After careful consideration of all the evidence introduced at the hearing, and the fine arguments of counsel for both parties, it is my determination that Boston has shown by more than a preponderance of the evidence that the IEP it developed for Xola provides him with a free, appropriate public education in the least restrictive setting consistent with that goal.
I.
Special education services may be provided beyond the 180 day minimum established for all students when an eligible student requires such services to receive a free, appropriate public education. . 603 CMR 28.05 (4)(d) 1 provides:
1. An extended year program may be identified if the student has demonstrated or is likely to demonstrate substantial regression in his or her learning skills and/or substantial difficulty in relearning such skills if an extended program is not provided.
Determining which student may need extended year special education, and what type of educational services should be provided, is a Team decision. The Team must consider the individual needs, learning style and rate, goals and objectives, and other factors unique to each student’s circumstances, to decide whether extended year services are appropriate. Here the Team determined that Xola did not require extended year services in order to receive FAPE. As Mr. Henderson pointed out, there was no evidence before the Team that Xola had demonstrated substantial regression in the past without special education service over the summer vacation. Indeed Xola demonstrated steady progress in the acquisition of basic reading skills, as shown in DRA results, over two years including summer vacations. None of the teachers who worked closely with Xola recommended extended year services. No evaluator who had seen Xola over time recommended extended year services. The only professional suggestion that Orton-Gillingham tutoring continue during the summer months came from Dr. Lai who, as Ms. Brassil explained, generally recommends continuation of Orton-Gillingham services for all students receiving academic year Orton-Gillingham tutoring. (¶ 11) Due to the non-individualized nature of that recommendation, combined with the observation that Dr. Lai did not actually evaluate Xola before making that recommendation, I accord it little weight. The only other evidence before the Team was the Parent’s assertion that Orton-Gillingham tutoring during the summer would permit Xola to derive greater benefit from the program. That is probably true. But it does not meet the regulatory standard for providing extended year services. There has been no credible showing at this hearing that Xola will experience substantial regression in his targeted reading skills without a continuation of Orton-Gillingham tutoring during the summer months. Neither is there any evidence that Xola will have substantial difficulty relearning those reading skills he may forget, as children do, over the summer break without on-going tutoring. Therefore I find that the Team’s determination that the provision of Orton-Gillingham tutoring to Xola during the summer is not necessary to ensure that he receives a free, appropriate public education is amply supported by the evidence in the record and is consistent with the parameters of 603 CMR 28.05 (4)(d) 1.
B. Inclusion
The Parent requested for the first time that Xola be placed in an “inclusion” class in April 2005. In support of her request the Parent pointed to Dr. Lai’s letter of October 2004, in which Dr. Lai stated that an “inclusion” class would be “helpful”. There is no other recommendation for placement in an “inclusion” class in the record. There is, as Dr. Stevens acknowledged, no consensus on what constitutes an “inclusion” class. No one at the hearing described what such a class would look like, how it would benefit Xola, or whether it is indeed “less restrictive” than his current placement. As noted above, I give Dr. Lai’s recommendations little weight. There is no evidence that she evaluated Xola, spoke to his service providers, observed his classroom performance, or read his current IEP. There is nothing in the record to indicate her qualifications to make recommendations concerning Xola’s special education programming, or her working definition of/experience with “inclusion” programming. The Team’s determination that Xola was making slow, steady progress with the level and location of the special education service he received under the 2004-2005 IEP is supported in the record. Therefore the Team’s decision to maintain the “pull-out”, resource room model of service delivery for Xola for the balance of the 2004-2005 IEP is reasonable.
The Parent admitted the primary impetus underpinning her request for an “inclusion” class is her perception of poor Team communication. She cited regular difficulties with coordinating homework modifications, inconsistent use of recommended instructional modifications in the regular classroom, and brief appearances by Team members at meetings as particularly irksome components of her experience at the Higginson School. The record shows Boston’s attempts to address the Parent’s dissatisfaction with regular meetings, and comprehensive evaluations and services. There is nothing in this record which would support a parental claim for either substantive or procedural noncompliance with the requirements of state or federal special education laws. Nonetheless, improved documentation and communication procedures could go a long way toward addressing parental anxiety and expectations and averting escalation into the due process arena.
Order
The 2004-2005 IEP developed by Boston is reasonably calculated to ensure a free, appropriate public education to Xola in the least restrictive setting. Individual Orton-Gillingham tutoring during the summer vacation is not a necessary component of a free, appropriate public education for Xola.
Lindsay Byrne, Hearing Officer
1
Xola is a pseudonym chosen by the Hearing Officer to preserve the privacy of the Student in publicly available documents.