COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In re: Ben1 and Bourne Public Schools
BSEA #03-2817
DECISION
This decision is rendered pursuant to 20 USC 1400 et seq . (Individuals with Disabilities Education Act), 29 USC 794 (Section 504 of the Rehabilitation Act), MGL chs. 30A (state administrative procedure act) and 71B (state special education law), and the regulations promulgated under said statutes.
A hearing on the above-numbered case was held on June 19, 2003 and July 10, 2003 at the Bourne Public High School in Bourne, Massachusetts. At the request of the parties, the record remained open until July 23, 2003 for receipt of closing argument. Parents submitted their closing arguments by such date. However, because the school’s closing argument was not received until July 24, 2003, and seeing no prejudice to Parents, the record was kept open until the 24 th for receipt of such.
Persons present for all or part of the hearing were:
Mother
Father
Ben
Toni Saunders Advocate for family2
Donna McGonagle Grade five language arts teacher, Bourne Public Schools
Douglas Haines School Psychologist, Bourne Public Schools
Steven Lamarche Dean of Students, Bourne Public Schools
Lawrence Sweeney Director of Special Education, Bourne Public Schools
Brian Walsh Attorney for Bourne School Committee
Diane Godfrey Secondary Department Head, Bourne Public Schools
Patricia Fairbanks Elementary Department Head, Bourne Public Schools
Brigette Bass Occupational Therapist, Bourne Public Schools
Gail Casassa Speech Therapist, Bourne Public Schools
Laura Perry Special Education Teacher, Bourne Public Schools
Rose Williams3 Special Education Teacher, Bourne Public Schools
STATEMENT OF THE ISSUES
1. Whether the Bourne Public School’s (Bourne) 2002 – 2003 IEP calling for services including special education rather than mainstreamed language arts / literature classes, as well as occupational, physical, and speech therapies, is reasonably calculated to provide an appropriate education in the least restrictive setting; or whether Ben should receive the language arts and reading classes in both regular education as well as special education settings4 .
2. Whether Bourne’s IEP includes appropriate assistive technology, whether such is being implemented, and whether the assistive technology should be provided in the special education and/or the regular education setting.
3. Whether Ben’s educational needs require that the 1-1 aide be a male to assist with his personal hygiene needs.
STATEMENT OF THE PARENTS
Ben has cerebral palsy, however, he has the motivation and cognitive capabilities necessary to handle the mainstreamed sixth grade curriculum, as long as he is provided the appropriate assistive technology to compensate for his physical, visual, expressive/ receptive language disabilities as well as his specific reading/spelling/math learning disabilities. This past year, he earned grades that support his ability to handle the mainstreamed classes. Cognitive testing should not include composite verbal scattered scores, for such do not accurately describe Ben’s cognitive abilities. Rather, the subtest scores and a full description of them should be provided. Further, Ben’s learning disabilities have not been acknowledged or adequately treated; he therefore needs further testing by a specialist in learning disabilities, and the specialist’s recommended programs must be delivered with the specialized software on Ben’s laptop. Accordingly, the program must be developed in conjunction with the assistive technology specialist. Yearly standardized testing should be administered in order to measure Ben’s progress in reading, spelling, and math. Ben’s special education reading and spelling should be scheduled during the non-academic “Specials” periods. Ben, his teachers, and Parents should be provided training as necessary to implement Ben’s assistive technology programs. Bourne must obtain and implement all assistive technology devices and accommodations necessary to address Ben’s visual and motor needs, his organizational needs re scheduling as well as writing, and his reading needs. Ben also requires a male aide to assist with his personal hygiene needs.5
STATEMENT OF THE SCHOOL
Ben cannot effectively access the regular education curriculum, even with the assistive technology. He requires direct instruction in reading/writing/math. Ben’s lack of reading/writing/math skills, as well as his cognitive deficits, distractibility, need for extra processing time, and his anxiety levels, all dictate the need for a special education setting. Such needs were deemed necessary by Bourne’s speech/language therapist, occupational therapist, and psychologist, and confirmed by the Children’s Hospital Boston’s (CHB) extensive neuropsychological evaluation report. If Ben is to receive special education as well as regular education language arts and reading/literature, they should be provided during the seven-period school day due to his limited stamina. Bourne has implemented the assistive technology that it agreed to, but such is not a panacea for Ben’s physical, motor, cognitive, and learning deficits. Finally, Bourne cannot ensure that Ben’s aide will be a male, unless such is deemed to be a bona fide requirement for employment.
STATEMENT OF THE FACTS
1. Ben is a twelve and a half-year old boy who has just completed his 5 th grade at the Bourne Middle School. Due to complications at birth, he has cerebral palsy and right arm Erb’s Palsy. His relative strength is in his overall expressive language, however, he has receptive and expressive language deficits with difficulty processing and organizing his language. His reading/spelling skills are at the K-1 st grade level. He is working on adding and subtracting single digit numbers. He has low physical stamina. He has relative strengths in his left-hand grasp and manipulation skills; his relative weaknesses are his motor, ocular-motor, visual perceptual, and bilateral task skills. He has vision deficits with consecutive exotropia and hypertropia. Acuity is reduced to 20/100 at near with his present glasses. He can detect large and bright objects, but not smaller and dimmer objects. The parties disagree as to Ben’s cognitive profile, with Parents asserting that his profile is too complex to assign a verbal IQ score that is misleadingly low. (S-43, P-20, S-10, Bass, Haines, Godfrey, McGonagle)
2. Ben resided with his family and received educational services in England until age 7 when the family moved to the town of Bourne, Massachusetts. He attended Bourne’s mainstreamed second grade and receiving pull-out special education services for reading/math/language 4 x 60 minutes, speech/language therapy and occupational therapy, each 1 x 30 minutes, and physical therapy and adaptive physical education 2 x 30 minutes. In third grade, he again received the pull-out special education services. In his 2001-2002 fourth grade year, he was placed in an inclusion science and social studies classroom, and on a pull-out bas,.is, again received the special education services. (S-43, S-34) In fourth grade, the services continued for the first semester. His fourth grade language arts goals/objectives included learning 3-5 sight words / week, composing 4-6 related sentences, developing pre-reading skills, and recognizing vowel and consonant sounds. His math goal addressed adding and subtracting single digits. His speech goals focused on following directions, sentence formation, and retelling a story. His occupational therapy goals addressed writing his name and keyboarding 8-10 words in 15 minutes. (P-5). Bourne conducted a comprehensive evaluation/assessment in the fall of this 4 th grade year. The TEAM convened in October to review the evaluations, and Bourne developed an IEP calling for the special education classes for reading/language arts/math, speech/language and occupational therapies, adaptive physical education and physical therapy. (S-34) At the meeting, his teachers reported that his application and transfer of skills is weak, that all of his academic work is modified to his reading level or is read to him, that he needs many verbal cues to stay on task, and that he has many physical and cognitive accommodations during the day. (S-39)
Parents believed that because Ben was making such poor progress in reading, writing, and math, it was more important to bypass such skills in order to keep up with his 4 th grade curriculum. Thus, the special education reading/writing and math services were terminated pursuant to a February 7, 2002 mediation agreement. He then participated in all regular fourth grade activities, was accompanied by a 1-1 aide, and continued to receive the speech and occupational therapies, as well as the vision consult. Assistive technologies were to be provided, including IntelliTalk, Intellikeys, and Co:Writer. (S-1, S-32, S-34, P-7) In April, by agreement, a new IEP issued with speech/language and occupational therapies and math services. (S-25) Thereafter, Bourne developed another IEP calling for the special education reading/language arts, speech/language, math, and occupational therapy services. Parents rejected this. (S-10) Again, a mediation session resulted in an agreement that Bourne reluctantly entered into, calling for a laptop computer, training for the software, and regular education classes. (S-11)
4. In Ben’s 2002-2003 fifth grade year, Ben was mainstreamed for all academics except math and occupational therapy, and he had a 1-1 aide throughout the day. (Parents provided speech and physical therapy services after school.) (P-8) Ben continued to work on the goals of typing 8-10 words within 15 minutes and of adding and subtracting single digit numbers. (P-5) His report card reflects academic grades of B’s and C’s, with one D+, and in Health, C.I., and chorus, A’s. The science and math teachers noted their use of adjusted grades and grades based on a modified program. The social studies teacher noted his low test/quiz grades. The English teacher noted the use of “academic accommodations”; the literature teacher noted his contribution to class discussions and his attentive listening skills. The math, physical education, art, and F.C. Sci. teachers noted his good effort. (P-18, P-21) Ben’s language arts/literature teacher testified that with accommodations, he handled her class well. Her class met two times daily, and they worked on spelling, (weekly tests), grammar, writing (they wrote eight five-paragraph essays), and literature (they read six fifth grade level novels). Her class included whole-class as well as small group work. (The sixth grade language arts/literature class is similarly structured.) Ben’s grades were not modified, although the writing requirements (even with a scribe) were waived, for he was too frustrated with them, even, for instance, when the five-paragraph essays were reduced to three-paragraph essays. The sequencing and organizing was too difficult for him. His grades were therefore based on test/quiz scores, projects, spelling, homework, and participation. The Intellitalk and Co-Writer technologies were used, but neither she nor the aide had sufficient time to input the necessary material. Accordingly, it was not used to its fullest. Ben could definitely handle the literature class; he contributed a lot in class discussions, he had excellent comprehension, and he loved the literature class. Grammar was difficult for him. He was equally enthused about and able to keep up with children in the social studies class. He was less successful in science, but with the aide, was able to handle it. In Ms. McGonagle’s opinion, Ben struggles with his limitations, pushing himself too hard, being anxious and hard on himself, and always comparing himself to the other children. However, in her opinion, he would not be sufficiently challenged, and his intellectual abilities would not be tapped in the special education class. She noted that his vocabulary is higher than the children in Ms. Perry’s special education math class. (McGonagle)
According to Bourne’s Occupational Therapist, the IntelliTalks technology can be used in lots of ways and is appropriate, however it is not reasonable to request a regular education teacher to be responsible for it, because it requires too much time scanning in the information. As a word processor, adjusting font size, color, etc., is fine. As the technologies change, there will be improved matches, however, in her opinion, the current technologies are inadequate. His reading level is too low, his processing levels are too slow, and he has motor as well as spatial deficits. You can limit the vocabulary, but it reduces the level, and becomes less helpful. The Co-writer is recommended if the skills are 1 – 2 years below; Ben’s are significantly lower. She questions the validity of the recommendations in the CHB Computer Learning Program Consultation report, for the evaluator thought his reading skills were at a 2 nd grade level – far above the K-1 st grade level. Further, the evaluator did not have a full grasp of his attentional and organizational deficits. (Her testing showed weaknesses in visual closure and visual memory – putting little pieces together in your head to make a bigger picture. He had significant difficulty with this.) Ms. Bass stated that with the help of a special educator in the mainstream, the technologies would have been more helpful. (In her opinion, the aide is there for mobility and safety, and therefore is not equipped to help Ben work with the technologies.) Further, having an educational technology expert work with the special educator, would also be helpful. However, in her opinion, Ben has too many issues impacting his ability to handle the mainstreamed materials (Bass)
In February of this 5 th grade year, Ms. Godfrey observed Student for a half-hour during a language arts class. While the students were rereading a section of a novel, Ben listened to the section on tape. The teacher then spent about 30 seconds with Ben, and he was able to recall facts from the reading and was easily understood, although he struggled to formulate sentences and express his ideas. Then, in a small group setting, the students developed questions relating to the material. Ben formulated one question that was not related to the text, and was unable to come up with another question. (S-24) Ms. McGonagle did not think this was a typical display of Ben’s abilities. (McGonagle)
5. Bourne conducted psychoeducational, educational, speech, and physical therapy assessments in 1998 and again (plus an occupational evaluation) in the 2001 fall of his fourth grade. (P- 2, P-10, P-2, S-43)
The speech/language evaluator reported Ben’s overall expressive language skills were within normal limits, however, he experienced difficulty in word retrieval, as well as in arranging word clusters together in order to make meaningful and correct sentences. His receptive vocabulary skills are within normal limits, however, at the sentence level, they were below normal. He exhibited difficulty understanding, recalling and following through on instructions. Comprehending word relationships were difficult, for the task relied on working memory. He experienced difficulty interpreting comparative, spatial, temporal, sequential, and passive relationships in sentences. Overall, he had significant difficulty processing and organizing his language. (P-2, S-43)
The educational evaluator reported Ben’s verbal reasoning abilities to be in the low average range, and his abilities to sustain attention, concentrate, and exert mental control were in the mentally deficient range. Such refers to his ability to attend to and hold information in short-term memory while performing some operation or manipulation with it. She further reported that he achieved his best performance on the Listening Comprehension (in the average range), and lowest score on Numerical Operations (well below average range). Finally, she reported that given his cognitive abilities, his achievement scores in Reading Comprehension, basic reading, mathematics composite, numerical operations and mathematics reasoning, and spelling, were significantly below that what would have been predicted. She stated that based on her discussions with staff and through observation, Ben’s abilities to sustain attention, concentrate and hold information in his short-term memory have inhibited Ben’s academic progress. He is unable to work independently in all academic areas. Although he tries very hard in school, he becomes easily frustrated with himself and will apologize for his inability to perform a task. She recommended continued direct instruction in a multi-sensory classroom for reading/written language and math. (P-2)
Mr. Haines’ psychological report further addressed Ben’s cognitive skills. He reported in 1998 as well as in 2001, that Ben is functioning potentially in the low average range of verbal academic learning abilities . However, he noted the significant variability within his verbal profile. That is, Ben had strengths in the areas of expressive vocabulary (verbal fluency, word knowledge and word usage) and similarities (abstract, logical thinking and verbal reasoning and the ability to form verbal concepts). He had weaknesses in retrieval and expression of factual information, numerical reasoning, short-term auditory sequential memory and practical social reasoning. Mr. Haines cautioned that the low score could be impacted by Ben’s atypical experiential exposure due to his disabilities. Finally, Ben’s Freedom from Distractibility index score was quite low. (Such “affects the ability to attend, concentrate, and remain undistracted, … [tending] to have difficulty attending to the foreground of material in the visual or auditory fields. They appear to have a “wandering” mind set, jumping from one area to another.”) However , Mr. Haines pointed out that, because such score is impacted by difficulty with numerical concepts, it is unclear to what extent it reflects Ben’s ability to attend, etc .. Further, the arithmetic subtest score may be unreliable because of visual-motor factors. If focusing is deemed to be a problem, he recommended reducing auditory distractions, provided cueing, eye contact, and praise for good listening, highlighting etc. while reading. (S-43, P-10) Mr. Haines further elaborated on his 1998 report. Through extensive questioning, he explained that the low average verbal IQ score and the average verbal comprehension index score are misleading if not understood in conjunction with an understanding of the various subtest scores. That is, Ben’s testing reflected an unusually large eleven-point scatter in the subtest scores (more than a three-point scatter is significant). Further, several of the lower subtest scores are questionably unreliable due to visual-motor deficits, and cultural deficits due to his being in a wheelchair and growing up in England. (S-43, P-2, Haines) He noted that the average vocabulary subtest score of 12 “assesses verbal fluency, word knowledge and word usage. … Ben did exceptionally well on this subtest. He performs solidly within normal limits on an exercise that involves abstract, logical thinking and reasoning and the ability to form verbal concepts. … Still within normal limits is performed a task which explores common sense, social knowledge, practical judgment in social situations, and level of social maturation as well as development of moral conscience. Ability to answer questions relevant to real life situations is required.” (P-10, page 5) He agreed to a further conclusion: the verbal comprehension index score was in the average range, and this score would have been higher if the tester had excluded the unusually low and potentially unreliable information subtest score. This verbal comprehension index score reflects average skills in verbal knowledge and understanding. (Haines) The solidly average comprehension subtest score (9) best measures his ability to process or use information. Mr. Haines was asked to infer from the Woodcock-Johnson Test of Academic Achievement’s broad knowledge scores (science 80%, social studies 70%) whether they reflected solidly average factual knowledge, long term memory, and recall abilities. He stated that such scores did require those abilities, however, one strong ability may compensate for another weak ability. Thus, the scores could not be used to argue that the low and potentially unreliable WISC –III information subtest score was in fact unreliable. However, it is unlikely that he could get the high achievement scores if his factual knowledge, long term memory, and recall abilities, were in the borderline range. (Haines )
The occupational therapist reported Ben’s relative strength in his left-hand grasp and manipulation skills, weaknesses in his motor skills, ocular motor skills, visual perceptual skills and bilateral tasks. She recommended direct therapy services 2 x week. She stressed the importance of carrying over the therapeutic activities and task accommodations into the classroom and home. She recommended strategies for visual tasks, learning new motor plans, writing, and keyboarding. (S-43)
The physical therapist reported that Ben’s physical stamina is very low, that over the past year, he has lost significant functional skills and endurance in gait, that he lacks self-motivation to perform independently. She recommended continued physical therapy 2 x week to work on transfer skills, gait and general strengthening and endurance. (S-43)
The ophthalmologist reported that Ben’s acuity was reduced (20/100) at near with his present glasses. She made recommendations for his lower visual field defects, she recommended enlarged print, increased spacing between lines with increased width of a single line of text, use of highest contrast for reading, memorizing the keypad’s letter positions. Finally, she recommended a Low Vision evaluation to see whether an optical aid would improve his reading. (S-43)
6. In the spring of 2002 (Ben’s fourth grade year), Parents obtained a Children’s Hospital Boston (CHB) Computer Learning Program Consultation (at the Communication Enhancement Center). An occupational therapist and educational specialist assessed Ben’s computer skills and needs regarding the integration of technology into his educational plan. They recommended the IntelliTalk II as an appropriate word processing program and as a supportive writing environment; the Co:Writer 4000 for rate enhancement and spelling support when in adult-supported writing activities; and MathPad. Further, they recommended books on tape. They recommended reinforcing and building his reading skills with Simon Sounds It Out as well as the phonics-based reading programs by Lexia Learning Systems, which are based on the Orton Gillingham method. They recommended that an assistive technology specialist provide hands-on training to parents and teachers in order to be familiar with his software and able to customize the programs. They stressed Ben’s need for specific instruction in reading/writing and in the use of the computer as a tool to support his reading/writing. They noted that the upcoming neuropsychological evaluation should provide additional insight into Ben’s learning style and his cognitive strengths and weaknesses. Finally, they recommended a six-month follow up session to review Ben’s progress. (P-3)
7. In the spring of 2002, Parents also obtained a CHB neuropsychological evaluation. Dr. Christine Mrakotsky assessed Ben’s learning difficulties and neurobehavioral status, in order to assist in educational planning. In so doing, she reviewed Parents’ history questionnaire, the Behavior Assessment System for Children, the Behavior Inventory of Executive Function (BRIEF), and the Scales of Independent Behavior-Revised (SIB-R). The BASC and BRIEF ratings were also obtained from Ben’s teachers, speech pathologist, and occupational therapist. In addition, she conducted a variety of psychological tests, including the Wechsler Intelligence Scale for Children, 3 rd Edition (WISC-III) – selected subtests; Children’s Memory Scale (CMS) – Story Memory, Sequences; Clinical Evaluation of Language Fundamentals 3 rd Edition (CELF-30) – Recalling Sentences, Concepts and Directions; Boston Naming Test (BNT); Comprehensive Test of Phonological Processing (WRAVMA) – Matching; Beery’s Visual Motor Integration, 4 th edition (VMI-4); Grooved Pegboard; Purdue Pegboard; Gray Oral Reading Test, 3 rd edition (GORT-3) – selected paragraphs; Woodcock-Johnson, 3 rd edition (WJ-III) – Letter Word Identification; Sentence Completion. The report makes findings as to Interpersonal Style; Social Cognition/Processing; Affect/Mood; Thought Process/Content; Arousal/Attention; Executive Control Processes; General Cognitive Abilities; Auditory/Linguistic Processing; Visuo-Spatial Processing; Motor/Sensory; Emotional/Personality; Academic Achievement; and Adaptive Skills. Thereafter, the evaluator rendered three pages of impressions, and four pages of recommendations.
Some of the recommendations’ highlights are as follows:
By report, Ben has made progress in the mainstream setting to this point – although the development of fluency in basic skills remains a major challenge. Both the physical and the neuropsychological impact of his medical condition, however, argue for a more intensive and supported educational setting as he proceeds to higher grades. Developing the appropriate educational plan for Ben over this and the coming grades will thus need to incorporate both short-term and long-term educational and vocational goals.
Ben’s placement in an inclusion classroom is endorsed to provide maximum access to age-appropriate curriculum content and reach expected grade level curriculum goal. He will, however, continue to need direct individualized instruction in reading, written language, and math. It will be important not only to incorporate instruction in basic academic skills, but also to make sure that skills can be effectively applied in the real world (“survival reading”, “consumer math”) as a foundation for meeting future adaptive and vocational goals.
All instructional materials should be scrutinized for both their visual and physical demands with accommodations made to facilitate Ben’s use of the materials (increased font size of written materials, support easel for books, technological supports for writing, etc.). The services of an individual aide with expertise working with children with neurologically-based learning disorders and physical limitations is strongly recommended to allow Ben to participate to the fullest extent possible throughout the school day.
Continued provision of direct services in speech and language, physical and occupational therapy are strongly endorsed; these should be complemented by consultation to classroom teachers as indicated. We encourage Ben’s parents and his educational team to work together to arrange a schedule that permits direct special educational services be provided – to the extent possible – during times when Ben is not participating in mainstream activities.
Physical and occupational therapies will need to address functional limitations in vision and mobility with a focus on exploring accommodations, modifications and assistive technology to develop greater independence.
For the longer term, we have serious concerns about Ben’s ability to function and make progress in the regular mainstream classroom setting which is geared to the needs of the normally-developing youngster and thus lacks the types of experiences and direct instruction needed to maximize the development of a student with Ben’s range of needs and limitations.
…
The major impediments to Ben’s learning can be expected to be his difficulties in attention, executive skills (shifting, fluency), and information processing. As these impact his ability to understand and learn more complex information across the board, he is likely to benefit from the integration of the following principles in his curriculum:
· Enhance attention: …frequent cueing, checking back, and teaching him to monitor his progress in the classroom setting. …accommodations to reduce the “noise” around him, such as sitting close to his teachers. The provision of small-group instruction is highly endorsed in this context.
· Manage load: [he] can be expected to be easily overwhelmed in situations where he must manage a lot of information or tackle assignments that involve complex processing. [He needs] strategies that structure the learning process and decrease load to help [him] focus on relevant information. …labeling strategies for defining target behaviors/information in high-stimulation situations will be important to minimize [his] tendency to become anxious or overwhelmed.
· Program for success – to minimize the potential for overload …
· Maximize structure …
· Structure assignments: Break down tasks into smaller components. …
· Build strategies for memory and learning: [He] benefits from structure, familiarity and meaning of information. He is more likely to process and encode information when provided with outlines and overview of information. It is also encouraged that complex or novel material be presented in close relationship to more familiar or meaningful information …
· Accommodate visual limitations: … well-lit workspaces; increase[d] font size … ; [use of] easels to support books at an optimal reading angle. (pages 11 – 14)
Finally, Dr. Mrakotsky addressed Ben’s reading, writing/dictation, and math needs. She recommended supplementing the phonics-based and reading-fluency strategies with direct teaching of “survival reading skills” … such as the Edmark program …, using larger font, less information on a page .. to keep track of lines. She endorsed the recommendations from the Visual Functions Program and Computer Learning Program Consultations, including visual accommodations of reading material and alternative ways of delivering written information such as with specific software/assistive technology. She recommended condensed and/or taped books, as well as high interest/low vocabulary materials. She endorsed the Computer Learning Program Consultation’s recommendations for writing/dictation. Finally, she recommended “consumer math” instruction, and again, endorsed the use of the Computer Learning Program Consultation’s recommendations for software to bypass the motor demands. (P-20)
Because Parents believed the report was based on faulty information, they did not share the report with Bourne until June 12, 2003, pursuant to a BSEA order.
8. In April of 2002, and again on June 3, 2002, Bourne convened a TEAM including special educators, the classroom teacher, occupational, speech, and vision specialists. It developed Ben’s 2002 – 2003 IEP and in June, a new IEP after addressing the CHB Computer Learning Program Consultation Report. (At this time, Bourne did not have access to the CHB neuropsychological evaluation report.) This later IEP describes Ben as “performing in the low average range of verbal academic learning abilities”. It also describes his strengths in expressive vocabulary and similarities, less well-developed expression of factual information, numerical reasoning, short-term auditory sequential memory and practical social reasoning. It notes his weakness in freedom from distractibility. It notes his overall normal expressive language skills, weak word retrieval skills, below normal receptive language skills, and processing and organizing deficits. It notes his low physical stamina and fatiguing, his weak application and transfer of skills within academic domains, his modified reading materials with 36 point type, his need for verbal and visual cues to stay on task, and his many physical and cognitive accommodations during the day. Finally, it notes Ben’s use of assistive technology. – Intellitalk and Co-Writer – , pointing out that Ben’s use of the regular keyboard is compromised by the motor demands. It notes that Mathpad and Kidsperation/Inspiration are possibilities for his fifth grade. It states that Ben’s ability to access the curriculum is compromised by his reading skills at the pre-K – K level, his weak reading comprehension skills, his receptive language and overall language deficits. It calls for the following accommodations, among others: limiting the amount of copying, using enlarged 36-point type, encouraging eye contact when speaking with Ben, and using books on tape. It calls for adjusted material and homework commensurate with his abilities. It calls for the use of chunking material, preferential seating, and structured formats. Finally, it calls for adjusted grades.
The IEP’s service delivery grid calls for special education pull-out services in reading/writing 4 x 6-day cycle, math daily, occupational and speech/language therapy each 1 x cycle, physical therapy 2 x cycle. It calls for no inclusion special education services in the mainstreamed setting (social studies and science), but does call for visual consultation (no listed frequency). (S-10, S-25, P-1)
Parents rejected this IEP, but pursuant to a September 13, 2002 mediation session, the parties reached an agreed upon amended IEP. It eliminated the special education reading/language arts, and speech/language therapy, and physical therapy, for the parents would provide their own speech and physical therapy services. The agreement also called for a 1-1 aide, and if Bourne’s town counsel deemed it legal, a male aide. This aide would help in toileting issues, as well as in the use of assistive technology in the mainstreamed setting. The Bourne technology director would train the aide, parents, and teachers. Finally, it called for all textbooks to be available on tape, and the vision specialist would provide consultation to the teaching staff at least 30 minutes/month. (S-11, P-8)
Although Bourne agreed to the amended IEP for settlement purposes, they assert that Student requires the special education language arts/reading program, the speech/language therapy, and the physical therapy. One of the two possible language arts classes is Ms. Perry’s class that Ben attends for math. There are ten 5 th – 7 th graders whose academic skills are in the pre-k through 3 rd /4 th -grade range. Although Ben’s cognitive abilities are at the higher end, at least four of the children are at Ben’s level. The teacher and six assistants (two of them are 1:1 aides) teach the class. (Perry)
Ms. Godfrey detailed the team meeting discussion held on this same day. She noted that Parents want the software loaded onto a laptop; Bourne does not agree to a laptop. Parents want the software used in the mainstreamed setting; Bourne wants it used in conjunction with writing instruction. Further, the Parents do not want Ben to learn to read, rather, that alternative measures be used. (S-12)
9. Ben testified that he needs a male aide, for being an adolescent, he wants to be as normal as possible, and therefore, he wants to use the boys’ bathroom, not the staff bathroom (with a single stall). Clearly, a male, not female aide would be needed if he were to have access to the boys’ bathroom. (Ben)
10. In January of 2003, Parents requested a BSEA Hearing, requesting an order that Ben’s laptop be attached to his wheelchair; that the special education math teacher, aide, and Ben be trained on mathpad software, that the aide be trained to input vocabulary words/dictionary list for all classes on a regular basis utilizing the Intellitalks software; that all staff involved with Ben, be trained in the use of his laptop software. (S-15) At the February 3, 2003 BSEA prehearing, Bourne stated that it was requesting a hearing on the denial of FAPE, asserting that Ben required special education, not regular education, services in reading and language arts, and that technology cannot supplant the need to learn to read and write.
FINDINGS AND CONCLUSIONS
I find that Bourne’s 2002 – 2003 IEP appropriately addressed Ben’s educational needs to the extent that it calls for special education classes for reading, language arts, and math, mainstreamed social studies and science, and assistive technologies. However, I find that the IEP should have provided mainstreamed literature. Further, it should have provided for a special education teacher or special education supervised aide within the mainstreamed setting. Although some assistive technology consultation and training was in fact provided to the fifth grade teachers and Parents, the IEP should have called for such. (See S-10, IEP service delivery grid) I find that although a male aide is preferable, there is insufficient evidence to support a finding that it is needed for educational reasons. A more detailed finding and reasoning follows.
1. First, clarity as to Ben’s profile will facilitate a determination of an appropriate education. Ben and his parents possess admirable dedication and determination that Ben fulfill his potential; I am persuaded that he indeed will. Despite the significant consistency between Bourne’s and CHB’s findings, Parents have raised numerous questions about the validity of the findings and recommendations. Having reviewed not only these evaluation reports, but the testimony of Bourne teachers and therapists, report cards, progress reports, and the closing statements (read for purposes of understanding the parties’ positions, but not for purposes of obtaining further evidence), several themes prevail. In addition to being a delightful boy, Ben’s strengths lie in his overall expressive language skills, his excellent vocabulary, his motivation to learn, and his willingness to work hard. Without diminishing the significance of these strengths, Ben also has deficits that significantly affect how he learns. As stated in CHB’s neuropsychological evaluation report, “The major impediments to Ben’s learning can be expected to be his difficulties in attention, executive skills (shifting, fluency), and information processing.” (P-20 at page 13)
· His distractibility and organizational deficits interfere with his learning. Such was deemed problematic not only by CHB’s testing, but by Bourne’s psychological, occupational, educational and speech/language testing. It is puzzling that the teachers working directly with Ben did not express this level of concern. (McGonagle, Perry). This discrepancy warrants closely monitoring his attention.
· His processing deficits are significant. The speech/language evaluator reported this is 2001 and based on her work with him two times / week, she found this to be true. (Casassa, P-2) Ms. Godfrey observed it. (Godfrey) The educational evaluator reported it. (P-2) CHB reported it. (P-20 at page 6) Ms. McGonagle was apparently able to provide him with sufficient structure to compensate for processing difficulties, but she also acknowledged that he needed time to compose and express his thoughts. (McGonagle)
· He has low physical stamina; such was observed by the CHB’s evaluator, and noted by his teacher, Ms. McGonagle.
· Finally, his vision is significantly compromised such that he needs enlarged print, increased spacing, use of contrast for reading. (S-43)
Parents’ cross-examination of Mr. Haines’ WISC test results raised interesting questions regarding Ben’s strengths and weaknesses, however any inconclusive nature of the cognitive testing does not, by itself, undermine the findings of distractibility, organizational deficits, processing deficits, etc. noted above. It is unfortunate that so much focus has been placed on Ben’s WISC verbal scores, for a child’s ability to handle a mainstreamed class is driven by so much more than that. Thus, a very bright child may require a more individualized, highly structured, small group placement if his/her learning profile (including emotional, neurological, physical, visual, and/or auditory, etc. factors) call for such. Given the challenges to Ben’s learning, his accomplishments thus far are a testament to his cognitive strengths and hard work, as well as to his parents’ and teachers’/therapists’ work.
2. After reviewing the numerous Bourne evaluations, Ben’s progress reports, and testimony from the Bourne staff, I find the CHB 2002 neuropsychologist’s report to be instructive and persuasive. It cautiously calls for mainstreamed inclusion classes including an “individual aide with expertise working with children with neurologically-based learning disorders and physical limitations” (page 12). It calls for direct specialized special education instruction in reading, writing, and math. It calls for speech/language, physical and occupational therapies with consultation to the teachers. It calls for special education services developing attentional and organizational skills. It calls for the use of assistive technology, with training and consultation. (P-20) In fact, despite moments of polarized exchange during the course of the proceedings, the parties essentially agreed to these recommendations. Over the past year, it appears that the parties became polarized over two very legitimate concerns. Bourne focused on Ben’s weaknesses and his critical need for intensive, individualized instruction in reading, writing, and math. Parents focused on Ben’s strengths and his corresponding need to maximize his learning of grade level content. The record supports the legitimacy of both concerns.
Bourne’s concern is in fact Parents’ concern, as evidenced by Parents’ focus on Bourne’s 2001 educational evaluator’s reporting the significant discrepancy between Ben’s reading/writing/math skills and his potential, given his cognitive profile. (S-43, Parents’ closing statement) Thus, Parents, CHB, and Bourne’s evaluators all support the need to address his reading/writing/math in a special education setting in order to individualize and intensify the teaching. Parents are understandably frustrated with his lack of progress in such skills, but the record does not support their refusal of specialized teaching. No evaluation report testimony supported this. Ben’s lack of progress does evidence the need for confirming, updating and elaborating on CHB’s neuropsychologist’s findings regarding Ben’s reading. (Note Bourne’s Educational Evaluation reporting the wide discrepancy between potential and achievement. (S-43)) For, if one is to adopt CHB’s findings as to Ben’s limited potential with phonics-based reading (see P-20 at page 14), it is necessary that Bourne obtain a second opinion and that it be from a reading specialist having experience with cerebral palsy and learning disabilities. It is unclear from the CHB neuropsychological report as to how intensive the Orton Gillingham type phonics-based reading/language arts program should be, and how intensive the supplement of survival reading skills should be. Should one or both approaches be carried over throughout the day, or is a significantly scaled back approach more appropriate? An answer to this would impact the extent to which reading skills are taught, as opposed to providing accommodations for his reading disability in the social studies, science, and literature classes. Until this is better clarified, the CHB recommendation for a phonics-based reading program “supplemented” with a “direct teaching of survival reading skills” shall be provided daily in a small group setting. (P-20 at page14) Would a 1:1 tutorial expedite his progress more than a small group setting? Given Ben’s K-1 level reading skills, is Ben increasing his reading skills by reading 6 th grade material that is being read to him? Rather, would it be appropriate to provide him with 6 th grade level content material with significantly lower readability levels? Finally, it is unclear from the record how and when the assistive technology should be used in the teaching of reading/writing, as opposed to its use in accommodating those skills. This should be sorted out by a coordinated effort between the reading specialist, the special education teacher, and the assistive technology consultant.
Parents’ concern that Ben maximize his learning of grade level content is also legitimate. Ben has shown his ability to acquire knowledge, to comprehend literature read to him, to engage in grade level class discussions. (1998 Woodcock Johnson Academic testing scores of 80% – science; 70% – social studies (P-10); McGonagle) Although the April of 2003 Stanford Achievement Test results6 provide further evidence of Ben’s level of knowledge acquisition, it is not used as a basis for finding regarding Ben’s ability to acquire knowledge, for its validity is in question, given the accommodations provided. Bourne shall either deem the results valid, or retest Ben using only accommodations that do not invalidate the testing. (P-22) He is motivated to learn with his non-disabled peers. At the same time, significant concerns have been raised regarding Ben’s problems with physical fatigue, his distractibility, and his ability to process information and express himself without significant time and structure. (Casassa, Haines, P-20 at pages 9 and 12, S-43) Accordingly, it is with the caveat addressed below, that he has a right to and must be taught grade level content in mainstreamed settings. Clearly, however, Ben requires an individual aide preferably with expertise working with children with neurologically-based learning disorders and physical limitations. CHB recommended this (P-20 at page 12), and a review of the Bourne evaluations and staff testimony, supports this. Further, to the extent that assistive technology can facilitate such learning, it must be provided. To the extent that the staff, Parents, or Ben, express a need for support or training, it must be provided. To the extent that pre-teaching, modified materials, outlines, assistive technology, etc., can support his learning in the large group setting, it must be provided. To the extent that Ben is effectively learning in the regular education setting, it must be provided. However, as pointed out by CHB, Ben’s ability to handle the mainstreamed setting may become more challenged as the curriculum becomes more demanding. If, with all the supports, Ben is not able to successfully process the information and keep up with the class, Ben must be provided a special education setting.7 Further, Ben’s mainstreamed experiences must not be at the expense of his developing reading, writing, organizational and attentional skills. The reading evaluation should address this concern, and the special education teacher and regular education teachers must work cooperatively to ensure maximal development of the content material as well as the underlying reading / writing / attentional / organizational skills. Although it is a TEAM decision as to any change in mainstreaming, significant weight must be given to the opinions of the teachers, the speech/language therapist, and the reading specialist.
Much focus was given to the mainstreamed language arts/literature rather than to the social studies and science classes. The same principles addressed above, however, apply to all mainstreamed academic classes. It would seem that the mainstreamed language arts class would prove to be the least appropriate, for Ben’s language arts skills are significantly below grade level, and the record does not support the appropriateness for such. The record does support Parents’ position that Ben benefited from the fifth grade literature class, and that he should be placed in the equivalent sixth grade class (in addition to the special education reading class). However, placing Ben in just the literature class is difficult because the language arts and literature classes are frequently intertwined. To the extent that Bourne is able to place Ben in only the literature portion of the two classes, this would be preferable. With creative work between the language arts/literature teacher, the special educator, and the aide, this problem may be addressed. However, if Ben is to be in the mainstreamed language arts class, clearly, his work will need to be individualized in accordance with his IEP goals and objectives. Ms. McGonagle’s practice of waiving the writing assignments (with a scribe) denies him the opportunity for the needed writing skill development; the special educator is in a better position to individualize his writing assignments. The literature class will also require the special education or reading specialists’ expertise to ensure that Ben is not being given materials with inappropriately high readability levels, even with the assistive technology. To the extent that Bourne provides Ben with the two special education language arts / reading classes as well as the mainstreamed language arts / literature, they must be scheduled during Ben’s school day and must not interfere with Ben’s remaining academic classes.
3. Several Bourne staff members testified against mainstreaming; their concerns are based on solid information regarding Ben’s disabilities (discussed above). (Haines, Godfrey, Bass, Casassa, Sweeney) It is those concerns and that compel the need for close monitoring of Ben’s sixth grade mainstreamed experiences. However, their concerns were not sufficient to undermine the finding that he can handle mainstreaming experiences, for significant steps have yet to be taken to better address Ben’s special education needs, as detailed in this decision. Further, Bourne’s own IEP called for mainstreaming in social studies and science.
4. Mother may be correct that the Bourne staff has not consistently applied accommodations and modifications in testing/grading, for the IEP is not sufficiently specific. However, Mother is incorrect that Ben always earns his 5 th grade grades. For instance, although Ms. McGonagle stated that his grades are never gifts, she acknowledged that she waives his writing requirements (even with a scribe), yet writing is one of the more heavily weighted requirements in her class. Thus, to say that his final grade of “B” is the same as another student’s final grade of “B” is inaccurate. (McGonagle) Bourne shall, through the TEAM process, clarify the appropriate test accommodations, modifications of expectations, and adjustments in Ben’s grades. Clearly, there is not a common understanding as to what is called for.
5. Parents were unpersuasive that the CHB neuropsychological evaluation was tainted by inaccurate information. Even if they were correct that Bourne’s previous psychological evaluation reports (reviewed by Dr. Mrakotsky) inappropriately provided the WISC verbal IQ score, a close review of the CHB report supports Bourne’s position that the neuropsychologist made her own independent findings and recommendations, based on her own extensive testing and review of records. The report is replete with its own evaluation results, detailing Ben’s strengths and weaknesses as they affect his learning. It is true that the low average verbal IQ score reported in Bourne’s psychological reports is misleading if not read in conjunction with the subtest scores, given the wide scatter. It is true that Ben’s visual-motor deficits and his limited cultural exposure renders the meaning of certain subtest scores inconclusive. (Haines) However, CHB had the scatter of subtest scores, were aware of his visuo-motor deficits and his limited cultural experiences; they were not limited to the misleading verbal IQ score or composite scores. In fact they could have chosen to not report the misleading or questionably accurate scores. Further, the CHB evaluation recommendations are based not just on the WISC scores, but on Ben’s teacher, speech pathologist, occupational therapist BASC and BRIEF ratings, as well as its own psychological testing of Ben’s verbal/verbal memory, nonverbal/nonverbal memory, fine motor/graphomotor, academic achievement, and adaptive learning style. Thus, Parents are not persuasive that any misleading score would have prejudiced and biased the neuropsychologist in interpreting the information and making programmatic recommendations. Having said this, Parents are legitimately concerned about the reporting of the IQ score on Ben’s IEP. Such is read by teachers, etc., who are not experts in understanding all the ramifications of Ben’s unusual subtest scatter, his visuo-motor deficits, and his cultural deficits, in establishing IQ scores. Accordingly, the IEP should be written to more clearly reflect Ben’s verbal strengths and weaknesses, making sure to specify those subtest scores reflecting solid average skills. It should include a description or analysis of such scores. However, absent a professional opinion that the verbal IQ score should not be reported even with the analysis of the subtest scores, I decline to order Bourne to stop reporting it. No such opinion was provided, and Mr. Haines continued to assert that the reporting of the score was appropriate. Given his position, his comments in his 1998 neuropsychological report are confusing, for on the surface, they contradict his position. However, without a professional opinion supporting Parents’ position, they have not met their burden. (P-10 at page 2)
6. I find that the source of the dispute regarding the assistive technology was not so much the implementation of the technology8 , but rather, Bourne’s concern that the technology was supplanting Ben’s reading / writing / math / organizational skill development. (Bass, Godfrey, Sweeney) This very legitimate concern must be addressed by a coordinated effort among the special educator, the mainstreamed teacher, the reading specialist, and the assistive technology consultant. (Casassa, Perry, Bass, Sweeney) The consultant shall recommend the appropriate staffing for implementing the appropriate technologies. The training and consultation should be as deemed necessary by those implementing the technology. (The record supports a finding that the staff was significantly frustrated by the lack of sufficient support and training. (McGonagle, Bass, Perry, Lamarche)) First, however, a reading specialist should evaluate Ben, and such person should be experienced with cerebral palsy and learning disabilities. In addition, an updated assistive technology assessment is needed. The CHB Computer Learning Consultation report included a recommendation for a six-month update; significantly more time has passed, and the update is overdue. (P-20) Further, the update is needed to consider the CHB neuropsychological evaluation report, a reading specialist’s report, the fifth grade teachers’ concerns, and Ben’s progress with the technologies. Through a cooperative process, the regular and special educators, the reading specialist, and assistive technology evaluator, shall determine the extent to which assistive technology should be used to accommodate Ben’s disabilities and to what extent it should be used to assist his reading/writing/organizing skill development. In conjunction with the reading specialist and the special educator, the evaluator shall also address the appropriateness of the WYNN 3.0 and Kurzweill 3000, as recommended by CHB. (P-3, page 7)
7. Ben’s desire for a male aide to assist him with his personal hygiene, would translate to an educational need if his social/emotional needs compelled such. Given his adolescent age and his expressed concern about using the boys’ room (rather than the staff bathroom) and about being treated like all other boys, it is preferable that he use the boys’ room. For the benefit of the boys at school, this would mean that the aide should be a male. As much as this is preferable, and as much as it is desirable to find in Ben’s favor on this issue, the evidence does not support a finding that it is educationally required. That is, the record reflects neither social/emotional difficulties necessitating goals and objective, nor the use of the boys’ bathroom as a remedy for such difficulties. Rather, it is a preference for Ben.
ORDER
Bourne shall obtain an updated visual assessment of Ben’s vision as well as of Ben’s educational needs in light of his vision deficits. Bourne shall obtain a reading evaluation conducted by a reading specialist preferably experienced with cerebral palsy and with learning disabilities. Bourne shall obtain an assistive technology assessment and consultation as detailed above. Finally, Bourne shall determine whether Ben’s April of 2003 Stanford Achievement Test results are valid, given the accommodations provided. If they are not, Bourne shall provide a standardized achievement test using only accommodations that do not invalidate the testing.
Bourne shall immediately develop a 2003 – 2004 IEP in accordance with this decision, and shall reconvene after receipt of the above-ordered evaluations in order to modify the IEP as needed.
So ordered.
By the Hearing Officer,
________________________________
Sandra W. Sherwood
Date: August 1, 2003
1
Ben is a pseudonym chosen by the Hearing Officer to protect the privacy of the student in this publicly available document.
2
through June 20, 2003
3
Ms. Williams was present for the June 19 th 2003 hearing date, but despite Ronald William’s July 7, 2003 receipt of a BSEA subpoena requesting her testimony on July 10 th , 2003, she failed to appear. Although given the opportunity to schedule another hearing date to obtain her testimony, Parents chose not to prolong the hearing by seeking her testimony on a third date.
4
The parties are in agreement that Ben’s IEP appropriately calls for a daily special education math class, and daily mainstreamed social studies and science classes. They are further in agreement that the weekly speech/language services are appropriate, and can be provided in a pull-out setting or in the classroom, as necessary for scheduling purposes. (Mother, S-10)
5
In their closing argument, Parents requested a 12-month IEP. Because this was not addressed during the hearing, it is not addressed in this decision. Parents also requested that the TEAM process not include the current Director of Special Education or Chairperson, asserting that they have not properly facilitated the process. They further assert that, in order to ensure independence, all testing and consultation should be provided by third party experts. Again, such issues were not directly addressed through testimony. Without making any findings on their assertions, this decision does provide relevant guidance in developing a new IEP.
6
The April of 2003 Stanford Achievement Test results in question reflect a national PR-S of 79-7 science; 66-6 social science; 97-9 vocabulary. and 75-6 reading comprehension. (P-22)
7
The TEAM must clarify when and how to grade Ben’s performance, in order that it be clear to all how Ben is performing in the mainstreamed (as well as special education) settings.
8
Despite assertions that Bourne failed to comply with the amended IEP’s call for training, the IEP did not specify the amount of training. It only stated that training would be provided “specifically designed around software Ben will have in his laptop computer …[and] a schedule of training should be in place within two weeks. (P-11)