Special Education Appeals BSEA #00-2712
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
IN RE: EASTON PUBLIC SCHOOLS
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 occurred on December 14, 2000, December 20, 2000, January 9, 2001, January 16, 2001 and March 19, 20011 at the Bureau of Special Education Appeals in Malden, MA. Those present for all or part of the proceeding were:
Mary Ellen Efferen Parent’s Educational Evaluator
Joan Axelrod School’s Educational Evaluator
Donna Siegel Special Education Teacher; Easton Public Schools
Erick Chase 5 th Grade Teacher; Easton Public Schools
Russell Latham Special Education Administrator; Easton Public Schools
Laurel Silverman Psychologist; Easton Public Schools
Robert Kraus Attorney for the Parents
Rebecca Bryant Attorney; Easton Public Schools
Joan D. Beron Hearing Officer; BSEA
The official record of the hearing consists of Parent’s Exhibits marked J1- 51 and five days of recorded oral testimony. The record closed on May 30, 2001 when written closing the Hearing Officer received full closing arguments from both Parties.2
I. Does Easton’s Individualized Educational Plan (IEP) for the 1999-2000 and 2000-2001 school year (SY) designating (see IEP’s) at the Easton Middle School appropriately address the Student’s special education needs to assure his maximum possible educational development within the least restrictive educational environment?
II. If not, will modifications and/or accommodations to this program enable Student to achieve his maximum possible development in the least restrictive environment?3
III. If not, does Student require an out-of-district day placement (i.e., the CHARMSS Collaborative or the Learning Prep School) to appropriately address the Student’s nonverbal learning disability (NLD) and assure his maximum possible educational development within the least restrictive educational environment, thus requiring Easton to locate or create such a program?4
The Student is a 5 th grade student diagnosed with a Nonverbal Learning Disability (NLD) and Attention Deficit Hyperactivity Disorder (ADHD, which impede his ability to organize, to attend and to retrieve information. Student also has difficulty with fine motor activities, especially handwriting. Student has not made effective progress in his current resource room because the room contains too much activity. Further, the resource room does not offer the individual and small group instruction in a small substantially separate learning environment, and does not implement the assistive technology (AT) that was recommended by the Student’s independent evaluators. Student’s current inclusion math class also does not implement the recommendations from Student’s AT evaluation, and Student has lost ground in his math skills, according to testing. As a result, Student has suffered from anxiety and is embarrassed around his friends due to his NLD. Easton’s proposed inclusion science and math classes are not appropriate.5 Therefore, Student should be placed in the CHARMSS Collaborative or another day program that can address Student’s difficulties with organization and retrieval and which can provide Student with the assistive technology recommended by the independent evaluation.
Easton agrees that Student has ADHD and NLD; however, Easton’s program of modifications in Student’s inclusion math classroom, resource room assistance, and school psychological services has enabled Student to make appropriate progress within the Easton Public Schools. Student has good vocabulary, reading comprehension and short term memory skills. Continued resource room support in the company of peers with organizational difficulties, together with special education assistance in math and science, appropriate AT, and psychological services will afford Student maximum feasible benefit in the least restrictive environment. Although Easton believes that Student should continue in the resource room with inclusion for math, science and nonacademic subjects, it is not opposed to making modifications to Student’s program. Neither the CHARMSS Collaborative program nor the Learning Prep School are appropriate because they serve students with language-based learning disabilities; thus, Student would not be challenged in those environments. Therefore, the Parent’s request for CHARMSS or a private day program should be DENIED.
PROFILE OF THE STUDENT/EDUCATIONAL HISTORY
1. Student (DOB April 10, 1990) is currently an eleven year-old 5th grade student at the Olmstead School in Easton, Massachusetts. Both Student and his brother attend Easton Public Schools. Father also attended the Easton Public Schools, owns a building construction company in that area and coaches sports in town (Mother). Student is a social, outgoing, athletic child. He plays sports in Easton and has friends in the community that are on his teams; Id.
2. The Parties agree that Student has a Nonverbal Learning Disability (NLD) and ADHD (Mother, Efferen, Axelrod, Silverman, Siegel, Latham).6 NLD is associated with a constellation of symptoms including increased anxiety, difficulty with focusing attention, and reduced processing speed in both auditory and visual domains. He takes medication to help him focus (Mother). Educational evaluators have, in the last five years, seen the clinical incidence of NLD significantly increase (Axelrod, see also Efferen). Researchers have not identified the reasons for such increase with speculations ranging from environmental causes and/or detection through more sophisticated diagnostic procedures; (Axelrod). Research has shown that NLD is caused by a “deficit in white matter of the brain,” which interferes with understanding the relationship of details to a whole concept and thus affects comprehension, processing speed and social interactions; Id . Moreover, because NLD is associated with reduced functioning of the right hemisphere, it affects the limbic system of the brain, which is generally associated with regulating emotions. As a result, persons with NLD often have accompanying depression and/or anxiety; Id . Fine motor work such as handwriting is impacted because it requires rapid processing of motor input; however, most NLD students do well with routines and typically get better at handwriting over time; Id .
3. Student’s difficulties are in attending, increased distractibility, deficits in visual-motor performance, weakness in motor planning, fine-motor deficits (i.e., difficulty writing), and organizational and sequencing deficits (J1, J2, J3, J4, J5, J6, J7, J9, J10, J11, J12, J13, J14). Student engages well with peers and does not exhibit the deficits in the social skills generally associated with NLD (Efferen, see J10). Student, however, may exhibit some subtle deficits in social development ( i.e ., may miss social cues) that are not detected because he “goes with the flow” (Axelrod).7
4. Student has been on an IEP since preschool (SY 95-96). At that time special education services consisted of resource room support and consultation in an inclusion classroom with modifications, psychological monitoring, Occupational therapy (OT), and Speech/language therapy ( see J 6, J7, J9, J11). Until third grade (SY 98-99) Student “held his own” in school; however, in third grade the volume of papers he had to do increased and Student could not keep up with, or complete his schoolwork (Mother). In November 1998, Student’s handwriting size increased and he had difficulty staying in the lines and fitting his work into the space allocated on the page (Mother, see also J21, J29). During the spring that his handwriting deteriorated, Student started having trips to the nurse’s office for stomachaches and headaches, had nightmares, and began saying that he was not like the other kids. (Mother, see J29).
5. Student received his three-year reevaluation from Easton in December 1998 and January 1999 (J15, J16, J17, J19, J20, J21). He was at grade level in reading, math and spelling with average to above average speech and language skills, below average sequencing and written language skills, and vulnerability on nonverbal tasks; Id. , see J29. Testing showed Student to have perceptual- organizational skills in the 12 th percentile with processing speed at the 1 st percentile (Silverman, J19, see J29). His OT evaluation showed more difficulty with graphomotor skills than one would expect with his other motor abilities but attributed this to his ADHD, with which his performance was consistent (J20, see J29). Student also received an updated Central Auditory Processing (CAP) evaluation at New England Sinai Hospital at that time (J18).8 Testing revealed increased anxiety and frustration, fine-motor planning deficits, delayed processing speed and word retrieval problems and depressed organizational abilities (J18). The TEAM reconvened on February 4, 1999 and added pull-out services two times per week with a learning specialist to work on written language skills, weekly counseling, and five hours of summer tutoring in written language (Mother, compare J14, J22). Despite these additional services, Student was still not able to complete tasks and his trips to the nurse’s office increased (Mother).
6. An Emergency TEAM meeting was convened on April 13 and 15, 1999 (J23). The TEAM discussed changing Student’s 3 rd grade class and obtaining an AT consultation to address Student’s processing and written language difficulties. The TEAM amended the IEP to include untimed testing, closely monitored small group work, a scribe for any activities requiring written responses and occupational therapy services for two thirty minute sessions per week (J23, Mother, Latham). The Parent accepted the IEP through June 1999 (Mother, J23).
7. On June 8, 1999, an M.Ed. level AT specialist from the Easter Seals organization visited Student’s classroom to evaluate his then-current computer use and recommend equipment and software to help Student compensate for writing difficulties (J24, Mother). The AT specialist noted that Student’s writing skills had deteriorated over the school year. The specialist further noted that during academic tasks, Student experienced anxiety that caused shaking hands and fidgeting (J24). Student was seen for a formal AT evaluation with this specialist on June 18, 1999. During testing Student’s typing was slow and he trembled as he typed. He had difficulty using the word processor to capitalize correctly and had trouble keeping his hands stabilized when he tried to keep his fingers on the home row of keys (J24). Student was able to utilize a word prediction program with an Alpha Smart keyboard with the speech feature turned off but had trouble writing longer sentences (J24). When presented with both the laptop and the Alpha Smart keyboard Student expressed a preference for using the laptop (J24). He was able to use a Math Pad program when given detailed support and instruction from a staff person (J24). The Easter Seals evaluator recommended that Student use a computer or portable keyboard to help ease his anxiety about writing and help him produce legible materials. Easter Seals recommended the Telepathic II Madenta MAC word prediction program and a portable keyboard such as the Alpha Smart to allow Student to quickly type short answers and answers to spelling tests, Math Pad to enable Student to complete his math answers without having to hand write and two hours per month of ongoing consultation from an AT specialist (J24). Easter Seals indicated that they were available to provide this consultation (J24).
8. The TEAM reconvened on June 18, 1999 to plan for the 4 th grade (SY 99-00) (J25). The TEAM noted that Student’s impaired fine-motor skills for handwriting combined with difficulties in independent organization had become more frustrating for Student and that Student’s anxiety was negatively impacting his educational progress; see (Mother, J29). The IEP continued to recommend a 1:1 aide to assist in written work, one small group and one individual counseling session, one thirty minute speech/language therapy small group session, monthly psychological monitoring and weekly OT and academic consultation. The TEAM increased Student’s pull-out services from two to five times weekly. OT consultation was increased from ten to twenty minutes per day and psychological consultation was increased from ten minutes per month to ten minutes per week. Five minutes more weekly consultation time from the speech/language pathologist was added; compare J23, J25. The TEAM noted that the Easter Seals evaluation took place but was not available for review because Student had been seen that morning (J24, J25).9 The TEAM further noted that preliminary findings from Easter Seals suggested the use of an Alpha Smart, some computer software programs, and adaptations in the classroom (J25), and agreed to reconvene in September to review the AT evaluation and receive input from Easton’s technology specialist, Chris Margulies (J25, Mother, Latham). Easton also offered five hours per week of AT in the summer with the Alpha Smart. The Parents rejected the summer program. Student received two hours weekly private tutoring during that summer. He had a good summer with his friends and did not need his medication at that time (Mother).
9. In September 1999 Student entered the 4 th grade, which required him to move from the Parkview Elementary School to the Olmstead School (Mother). The TEAM reconvened on September 8, 1999 to amend Student’s OT goals and objectives and adjust the service delivery page. Student continued to receive one period of daily academic support in the regular education classroom with a 1:1 aide, thirty minutes of psychological monitoring, daily resource room support, and two sessions of counseling and one 30-minute session of speech/language therapy (J26). The TEAM added an AT consultant, one hour of direct service in OT, TEAM consultation between all SPED TEAM specialists and reinforcement of keyboarding instruction by the aide with OT supervision as opportunities arose (J26). The Parents did not attend the TEAM meeting but their advocate, Marge Pacetti, participated by phone (J26).
10. On September 14, 1999 Parents partially rejected the IEP’s developed on June 18, 1999 and September 8, 1999 because neither IEP provided a laptop for Student’s exclusive use, and did not include the use of the Telepathic 2 word prediction program or Math Pad software (Mother, J26, Latham). Easton’s position was that the IEP was appropriate because Student did have exclusive use of, and had been trained on an Alpha Smart portable word processor and had use of the Power Macintosh 5400 in the resource room, library and inclusion classrooms (Latham, J26, Silverman). Easton admitted that as of September 1999, it did not have Math Pad and the Telepathic word prediction program available for use. At that time Easton was still in the process of consulting with the Technology specialist to determine whether the Co-Writer or the Telepathic program would best meet Students’ needs and was still gaining experience with the Math Pad program (Latham, J26). Parents were informed that the assistance of the Technology specialist and the AT services could not be implemented unless the Parents accepted that portion of the IEP (Latham, see J26).
11. On September 21 or 22, 1999, Student had a significant breakdown, screaming and crying for two hours. He told his Mother that he could not do the work no matter how hard he tried, that what was in his head would not come out and that he did not like the aide sitting next to him (Mother). Student told Parents that it was too hard to live and he talked about hurting himself. Parents had Student seen by a therapist who diagnosed Student with major depression and put him on antipsychotic medication (Mother). Parents talked to the teachers about not pushing Student too hard; (Mother, Latham). Easton recommended that Student be evaluated and recommended that Dr.Baker from Franciscan Children’s Hospital (FCH) do that evaluation (Latham).
12. On October 25, 1999, Parents requested an independent neurological evaluation from Franciscan Children’s Hospital (FCH) and an OT evaluation from Occupational Therapy Associates (OTA) in Watertown, MA and an AT evaluation at Children’s Hospital.10
13. Dr. Elizabeth Baker from FCH conducted the neuropsychological evaluation on November 10-11, 1999 (J29). Student was fidgety and slightly anxious during testing and was often distracted by noise. Student had particular difficulty keeping focused on paper and pencil tasks that required independent process through a series of elements and his pace of working was exceedingly slow; Id. He was noted to have difficulty shifting tasks without reminders or cuing and often needed repetition of lengthy questions; Id. His pencil use was effortful and he was observed turning his paper to avoid crossing the midline; Id. . Student performed in the high average to superior range on language comprehension, ability to process phonemes and rapid naming of repeated items. His reasoning skills were in the average range, improving when given visual support when answering lengthy questions. His ability to name items within a category within a time limit was significantly below grade level.
Student’s performance on nonverbal, visual perceptual tasks varied from impaired to average levels. He displayed the most disorganization and anxiety with a design copying task using pencil and paper and tested significantly below average on all but the most simple and brief tests using pencil and paper. He was however, able to perform on an average level on visual tasks with no motor component. On several verbal and nonverbal learning tasks Student demonstrated vulnerability when he was asked to take in information in a consistent and organized fashion and recall it independently immediately after learning it or after a period of time. After testing Dr. Baker noted that Student had elements of NLD but that other aspects of that diagnosis such as poor social skills, significant vulnerabilities in math, poor social skills, and consistent below age performance on visual-perceptual tasks did not appear to be characteristic of his profile (J29).
Dr. Baker recommended that Student be taken out his current classroom as soon as possible and placed in a very small substantially separate special education learning environment that emphasizes the teaching of outlining, spiraling, chunking and note-taking strategies for organization and learning. She also recommended that Student be given some alternative system for writing utilizing assistive technology, consultation to incorporate appropriate technology into his program, a laptop to utilize this technology effectively, and continued psychological monitoring of his stress level (J29).
14. Easton received Dr. Baker’s report on December 9, 1999 (Silverman). The TEAM reconvened on December 15, 1999 to consider Dr. Baker’s evaluation (J30). Parents requested an outside placement at the South Shore Collaborative and a laptop for Student (Mother). The TEAM recommended all academic instruction in 502.4 resource room setting with Donna Siegel, and expanded Student’s instructional profile to include thirty accommodations.11 Software recommendations to increase computer use were to be explored. The use of a laptop was not included in his IEP. The Technology Consultant was also decreased from two hours to one hour per month; compare (J26, J30, Mother, Latham). On January 5, 2000, Parents rejected the IEP in full because it was not the self-contained classroom recommended by Dr. Baker and contained too many transitions during the day (Mother, J30). Therefore, the Student remained in the inclusion classroom (Mother, Latham).
15. On January 12, 2000, Parents filed a hearing request with the Bureau of Special Education Appeals requesting placement at the South Shore Collaborative.
16. The TEAM reconvened on January 19, 2000 and recommended placement in a 502.4 substantially separate classroom taught by Ms. Donna Siegel (Latham, Silverman, Mother, J31). Ms. Siegel has a BA in psychology, M.Ed. in special education, and state certifications in Moderate Special Needs and Elementary Education (K-8). Her post-graduate courses and her professional enrichment programs have included “Graphic Organizers, K-6” (1999), “Landmark Study Skills” (1999, 2000), and “Comprehension Strategies, Visualizing and Verbalizing” (1999). She has taught in a “self contained resource room” at the Olmsted School since 1998, and has over twenty years of prior professional experiences as a teacher, tutor and counselor. (J47). Ms. Siegel’s classroom is designed to provide “cohesive primary instruction” for learning disabled students who have generally “broken the code” for reading, but who require a substantially separate programming due to deficits in written language and comprehension. The other resource room is for students with severe decoding deficits (Siegel). If a student in Ms. Siegel’s classroom can receive instruction in the mainstream for particular academic subjects, either Ms. Siegel or a special education aide would go into the classroom to ensure that the accommodations and instructional strategies used in her class would be carried through to the mainstream. Because most students in her room have difficulty with transitions, Ms. Siegel sets up the day so that the students know their schedules and have the necessary supplies for their classes (Siegel).
17. Although Easton believed that Ms. Siegel’s room was the most appropriate for Student, it also offered, as a compromise alternative, an eight-week placement in a 502.3 program. In this program Student would receive reading/language arts and social studies in Ms. Fleury’s resource room, with Student remaining in his math and science classroom, and continued academic support with Ms. Hart. The emotional/behavioral goals on the IEP would be switched to Priority #1, and audiotape, videotape, Dragon and voice-to-print systems would be added to the laptop. Mr. Latham also privately offered a consultant counselor for school and home services to address the meltdowns that Parents indicated had occurred at home (Silverman). Easton also explored the South Shore Collaborative program but found it to be inappropriate because it was a program for students with language-based learning disabilities who were less cognitively capable than Student, would not provide an appropriate peer group and had no current openings (Silverman). Parents rejected both proposals (Mother).
18. On February 8, 2000, a prehearing conference was held at the Bureau of Special Education Appeals (BSEA). The Parties agreed that Student was not progressing in his last agreed upon placement. The Parents further agreed to consult with the evaluators to explore whether Student should attend Easton’s proposed program while reserving their rights to explore private day placements. In late March or early April 2000, Parents agreed that Student would enter Ms. Siegel’s program with review from Mary Ellen Efferen (Mother, Silverman).
19. The TEAM reconvened on April 3, 2000 and developed an IEP covering April 3, 2000-June 30, 2000, with a review of the program to occur no later than June 5, 2000 (J32).12 The TEAM originally recommended placing Student in Ms. Siegel’s resource room for all academic subjects but Math and Science. As a compromise in response to Parents’ request, the TEAM agreed that Ms. Siegel would teach Science in the self-contained resource room setting (Mother, Silverman). The TEAM developed a schedule for implementing this IEP whereby, Ms. Siegel would, within five school days of Parental consent, read Student’s evaluation reports and confer with evaluators as necessary. Ms. Siegel would also meet with Parents, Ms. Silverman and the aide and would receive draft goals for technology and group counseling. Within seven days these Parties and the regular education teacher would meet with Student to describe the new classroom setting, meet Ms. Siegel and the other students and receive his schedule. Student would begin his program the following day. Upon entry, Student’s laptop would be given to him loaded with the software he was currently using and he would be given his weekly schedule. The school psychologist would check in with Student mid-day and Student’s private therapist would be available after school if needed. The technology specialist who would work with Student would be identified, would read his evaluation reports and would take additional steps necessary to recommend appropriate voice-to-print and word-prediction programs. Easton would aim to have any additional software installed within twenty days of parental consent (J32). The Parents accepted this IEP in full with the intent that this would be an interim program while they looked for a private school placement. (J32, Mother, Efferen, see J43). Parents did not communicate this intent to Easton (Mother, Silverman, Siegel); thus, Easton believed that this program would be a transition program that Student would continue with in 5 th grade (Siegel, Silverman).13
20. Student began attending the new program on April 24, 2000. At the time of transition to Ms. Siegel’s room, Ms. Siegel understood that a primary goal in the transition was to reduce Student’s anxiety. Student immediately felt relief upon entering Ms. Siegel’s resource room in that he was no longer in a classroom with twenty other children who could see that he was having trouble keeping up. Hs somatic complaints were reduced; however, Parents were concerned that Student no longer had any homework to take home (Mother). Easton maintained that homework was not given because work was done in class, Student was fatigued at the end of the day and had little motivation for homework, and that homework added to his stress; (Siegel, Silverman, J36).
21. During the spring of 2000, Mrs. Siegel had responsibility for a total of twelve students in grades 4, 5, and 6 and had the assistance of one special education aide on a full-time basis. However, for this transition period at the end of the school year, Student’s 1:1 aide continued to work with him pursuant to his previous IEP. Because the transition occurred n April, the TEAM decided not to adjust Student’s schedule. As such, Student did not receive instruction with his fourth grade peers while in Ms. Siegel’s resource room and instead worked at a table in the center of the room either individually or with small groups that were separated into different parts of the room (Siegel, Silverman).
22. Parents hired Mary Ellen Efferen to observe Student’s program (Mother). Ms. Efferen is an educational consultant. She has been in private practice since 1996 and was employed at the Shriver Center for thirty years prior to entering private practice (Efferen, J47). She observed Student’s program on Friday, May 12, 2000 (Efferen, J33). Ms. Efferen spoke to the Parent and their Advocate and Easton staff, and reviewed prior evaluations but did not review work samples (J33, Siegel). Ms. Efferen observed that during math, Student’s regular education teacher checked each students homework assignments, reviewed the schedule for the day using organizing directions, summarization and clear and sequential delineation of step directions (J33, Efferen). Student took a math test with the rest of the class but had fewer computation problems and no word problems. During the class, the scribe was unobtrusive and Student was able to use her effectively to write his answers (Efferen, J33). He was able to finish the test despite a break from the room to use the bathroom (J33). When Ms. Efferen asked the teacher if Student was given instructional strategies for solving word problems she was told that that was done in the resource room; however there was no indication of math instruction on Student’s resource room schedule (J33).
Ms. Efferen further observed that at the end of the math period Student enthusiastically proceeded to the resource room carrying his laptop and his notebook (Efferen, J33). Ms. Efferen positioned herself so that she could see the activity occurring in the room (Siegel, Silverman, Efferen). Ms. Efferen noted that Student remained upbeat, talkative with peers and the teacher, and was generally relaxed and at ease in the resource room despite the comings and goings of students entering and exiting the room and students working on different subjects and skills. Ms. Efferen noted however, and Ms. Siegel and Ms. Silverman confirmed, that the teachers were uneasy during the observation due to the litigation (J33, Efferen, Siegel, Silverman). Upon entering the room Student began to set up his laptop but was redirected to another monitor to work on spelling lists while Ms. Siegel plugged it in. The laptop was not set up because Ms. Siegel needed to attend to another student. Student remained in the resource room while two other students left. At that time another student entered the room and proceeded to a desk area. Student then was called to join the student and they began their small group work. While Ms. Siegel was getting the books for this lesson, Student’s aide came in to let Ms. Siegel know what the science lesson and experiments were for that day. Student’s small group reading lesson then began. Student interacted well with this peer. The lesson was briefly interrupted so that Ms. Siegel could direct two students who had entered the room to a spelling test. Student was able to hold his place and reengage in the assignment (J33, Efferen). At 10:00 a.m., Student was again interrupted while two students left and another student entered the room. During the second interruption Student lost his reading place; Id . At 10:15 a.m. Student returned to the laptop to do some reading comprehension work; however he asked for an opportunity to do something else and when given permission chose to leave the laptop and do a language arts project on the monitor. He was then redirected back to the laptop to write about the previous reading assignment but was not able to complete the assignment because the computer froze and was not able to be rebooted. The program was a new one that had just been installed the day before and the technology specialist was not available at that time to determine if there were any “glitches” in the program (J33, Siegel). Ms. Siegel asked Student if he would like to take the laptop home over the weekend. There was however no discussion about what Student would do with it during this time. Student chose not to take the laptop home. The observation ended with a socialization period where Student enthusiastically participated and initiated conversations with the four other students and the teacher (Efferen, J33). Ms. Efferen was not able to observe the social studies group because the school was dismissed at 11:00 a.m. for early release but did learn that social studies would be in a group of five and determined that this would be appropriate; Id .
23. Ms. Efferen wrote a report at the end of her visit. She concluded that Student was an active learner in the inclusion math class. She concluded however, that because Student spent more time in the resource room than many of the other students he was frequently left waiting, or instructed to do something else while Ms. Siegel attended to other students (Efferen, see J33). She was also concerned that she did not observe any documentation of what Student had learned during that day. Nor did she see any homework assigned for work that was not completed. Ms. Efferen also noted that there was confusion over math because math was not on Ms. Siegel’s schedule for Student and that science instruction was dependent upon on the spot communication between Ms. Siegel and the aide. Ms. Efferen noted that Ms. Siegel did use ECHO strategies, summarization and elaboration but observed no visual and auditory pairing of instruction or checking for comprehension during Student’s language comprehension lesson. Ms. Efferen concluded that Student presented with a complex learning profile compromising weaknesses in taking in, organizing, storing and outputting information in a meaningful way and difficulty understanding relationships among different pieces of information. Consequently, Student is vulnerable to becoming overwhelmed and anxious (J33). Ms. Efferen agreed that Student’s processing and organizational difficulties required additional wait time and opportunities in clarification that could not be easily accommodated in the mainstream classroom when the pace and complexity of the curriculum increase. She recommended placing Student in a small, structured, self-contained classroom designed for students with learning disabilities and average cognitive potential where students are working on the same subject at the same time and where discussion, cooperative work activities and interactive learning can naturally occur. Additionally, the placement should incorporate assistive technology, use vocabulary, sentence structure and complexity appropriate to Student’s needs, and use strategies for organizing, sequencing, and retrieval, include preteaching vocabulary and key concepts, giving Student prepared outlines, opportunities for repetition and clarification, visual/auditory pairing of material, modeling, multiple-choice and fill in the blank testing. Ms. Efferen also recommended a summer program to enable Student to catch up on missed material, as well as a comprehensive educational evaluation and speech/language testing (Efferen, J33).
24. Student took the 4 th grade MCAS examination during May 2000. Pursuant to his IEP Student was allowed to complete the timed portions of the exam untimed, to have questions and qualified directions read to him and his 5 th grade group, to have his oral responses written by a scribe and to complete the essay portion on the computer (Silverman, Siegel). . In mathematics, Student received a score of 240, which was in the “proficient” range. (Easton’s 4 th grade score in math was 244, and the score statewide was 235). In Science, Student just missed the 240 “proficient” mark with a score of 238. (Easton’s Science score was 250 and the statewide score was 241). Student’s 220 score in English/Language Arts however, was solidly in the “needs improvement” range because his sentence structure was not correct, and his topic needed more development and better paraphrasing to clarify organization and/or ideas (J35).14
25. The TEAM reconvened on June 5, 2000 (Mother, J36, Efferen). The TEAM reviewed the 4 th grade progress notes, MCAS testing and Ms. Efferen’s evaluation. The TEAM noted that Student’s anxiety was reduced since the last review (J36, Mother). Student was offered, but continued to refuse “Lunch-Bunch” preferring to eat with his friends. He avoided talking about difficult subjects during counseling sessions (Silverman, J36). He continued to need support for following multi-step directions and word problems in the regular education math classroom and in the resource room but tested in the A- to B range (Siegel, J34, J35, J36). Ms. Siegel found him to be an active participant in the small group social studies class and individual science class, completing all written science work in class (Siegel, J34, J36). During speech therapy Student often digressed from the subject but was able to return to the topic with cues. He was also able to utilize strategies to aid in word retrieval and auditory processing, independently asking for repetition and verification and chunking of information (J36). He continued to have difficulty with abstract, inferential and higher thinking skills but was able to see word patterns and use encoding techniques in the Language Arts resource room setting. He was also able with chunking, contextual cues, discussion and repetition, able to improve his reading comprehension and inferential skills and was demonstrating self-confidence in that setting (Siegel, J36). Student had access to his laptop in the math class, occupational therapy and the resource room. His OT sessions focused on improving keyboarding skills; however, Student continued to show signs of mental fatigue during long keyboarding sequences (Seigel, J36). Although Voice to Print, Word Prediction and math programs had been installed, Student and Easton staff were still getting acquainted with the computer and its software (J36, Siegel, Mother).
Easton staff recommended that Student receive language arts, social studies and academic support in Ms. Siegel’s self-contained resource room and math and science instruction in the inclusion classroom with support. As a compromise, the IEP only included the recommendation for inclusion Science (Silverman, compare J32, J36). The TEAM also agreed to add fifteen minutes of home-school consultation to the grid to aid in communication through a home-school notebook (Mother, Silverman). The TEAM noted that Student was a “happy-go-lucky character” and well integrated into the activities of the Olmstead School. The TEAM also noted that Student chose not to attend “lunch-bunch” (social group with the school psychologist during lunch). During counseling Student was not introspective and tried to avoid talking about particular subjects during individual counseling sessions (J36, Silverman). The recommendations for individual counseling and “lunch-bunch” remained in effect; compare J32, J36, Silverman. Computer instruction and consultation was reduced from thirty to fifteen minutes of daily instruction; compare J32, J36. Keyboarding instruction was deleted from the grid; Id. . The TEAM discussed Ms. Efferen’s recommendation about having Easton conduct a speech-language evaluation and included this in the IEP; however, when Ms. Efferen mentioned the recommendation for updated educational evaluation, Ms. Silverman indicated that the three year reevaluation was not due. Ms. Efferen, Parents and the Advocate did not pursue further discussion of this issue, Easton staff believing that the Parents agreed to wait and Ms. Efferen believing that further discussion would not be fruitful (Efferen, Mother, Siegel, Silverman, see J36).
26. Student was evaluated by his speech/language pathologist on or about August 21, 2000 (J37). The evaluation was broken up into three sessions and was encouraged to take short breaks during testing. As with previous testing ( see J16) Student showed delayed processing speed and auditory memory, word retrieval difficulties, and resulting language comprehension difficulties when presented with long passages or multi-paragraphs; see J37. Student was able to use repetition and clarification strategies successfully during testing and therapy sessions, however. The evaluator continued prior recommendations for use of delayed response time, oral/visual pairing of information, frequent check-ins to ensure comprehension of material, repetition and clarification of orally presented material, chunking, and continuous spiraling of information; (J37).
27. Student received three hours and forty-five minutes of the five hours of technology training on August 29, 30 and 31, 2000 (J38). During training Student demonstrated proficiency with Math Pad and could work Co-Writer independently. With assistance, he also was able to navigate into his folder from the previous year, use the Internet for research purposes, and create a graphic organizer using the information obtained from the Internet. Student did not receive the rest of the technology training due to medication issues (Silverman). Therefore, at the conclusion of the summer sessions, Ms. Margulies added a mini manual on Via Voice, loaded some educational math programs to reinforce fractions and decimals and planned to work with Student during the school year for a one-hour session using Via Voice. Ms. Margulies also gave Student a set of instructional pages to reinforce the programs they worked on; see (J38).
28. On September 1, 2000, Ms. Silverman wrote to Parents regarding Student’s schedule for 5 th grade (SY 2000-2001). Because the IEP had been rejected Student was to remain in Ms. Siegel’s class and receive services pursuant to the last accepted IEP (4/6/00 IEP). During math and during ‘hands-on science projects” Student would be in the 5 th grade classroom with Brian Astle functioning as Student’s aide. Laura Webby was to provide the technology consultation and direct service for Student after school (Silverman, J39).
29. Parent’s Advocate Marge Pacetti, faxed Ms. Silverman a written response on September 5, 2000. Ms. Pacetti indicated that Student could receive individual and group counseling with Ms. Silverman and if group counseling did not occur during “lunch bunch” it should be scheduled for another time. She also indicated that Student would receive the assistance of the learning specialist during Math, and that Parents’ prior permission for Student to attend science during “hands-on” activities was revoked so that daily science instruction would be provided in the resource room. Student’s IEP did not call for an extended day, so technology training was to take place during the school day. The Parents also requested redetermination of the time for technology instruction instead of that hour being made up during resource room instruction. (J39).
30. Ms. Silverman responded to the Parents and Ms. Pacetti by letter on September 7, 2000 (J39). She indicated that individual counseling would continue and that Student would receive the assistance of the learning specialist during math. Although Easton felt that Student would benefit from an inclusion science program, it would provide science in the resource room setting. Group counseling would be provided in “lunch-bunch” if Student chose to participate and technology training would remain after school due to Ms. Webby’s availability and familiarity with Student and his programs (J39, Silverman).
31. On September 15, 2000 Ms. Silverman and Ms. Siegel prepared an IEP amendment to extend the school day by thirty minutes, once per week, for individual, direct technology training and support. The Parents were not present. Parents rejected the amended plan (J41, Mother).
32. The TEAM reconvened on September 20, 2001 to review the speech/language evaluation. The TEAM proposed to increase speech and language services from one thirty minute session to two thirty minute sessions to increase Student’s vocabulary and sentence formulation and work on visualization and verbalization comprehension strategies (J42). The Parents rejected the plan (Mother).
33. During 5 th grade Student began and ended the day in Erick Chases’ homeroom. Mr. Chase is currently a first year teacher. Prior to the 2000-2001 SY Mr. Chase was employed as a special education aide for two years, one of which he spent supporting learning disabled students in second through fifth grade inclusion classes; (J47). He discusses Student with Ms. Siegel in a weekly formal meeting, as well as in daily, informal meetings with her during which he also discusses the other special education students in his class (Chase, Siegel). He is also mentored by a more senior teacher (Chase). Mr. Chase’s daily teaching schedule includes math, science, social studies, language arts, a homeroom period and a 15-20 minute period where he “reads aloud” to the class (“Read Aloud”) (Chase). All four fifth grade students receiving special education services in Ms. Siegel’s classroom—including Student–are assigned to Mr. Chase’s homeroom class for the regular education classes identified in their IEPs. Of those four students, none participate in Mr. Chase’s class for reading/language arts but all but one (including Student) participate in math. Student is the only student who does not participate in Science (Chase, Siegel, J46). During 5 th grade Student spent all but one period with Mr. Chase or with the other 5 th grade students for Art, Music, Gym, Snack/ Reading Aloud (Chase, J40). He also was with these 5 th graders during lunch, recess, special events and the afternoon weekly library period. Student took band and drum lessons with one other 5 th grader during the school day (J40, Siegel, Chase). During those times he talked and traded football cards with the other students and was often picked to work with them (Chase, Siegel). During Read Aloud periods, Student is able to answer questions and joins heartily with his peers in class protests when Mr. Chase has to stop reading a story at an exciting part (Chase).
34. Student receives math with twenty-three (23) other 5 th graders. Ms. Siegel team-teaches math on Fridays (J40, Siegel, Chase). During math, Student is assisted by either Ms. Siegel (who team-teaches math on Fridays (J40, Siegel, Chase), or his special education aide, Brian Astle, who is supervised by both teachers (Chase, Siegel). The three special needs students are not assigned to the same group and Student partners with all the students in the class (except the girls) and students frequently select Student as their math partner (Chase). In class, Mr. Chase provides explanations to the entire class and breaks the class into small groups to allow students to learn from each other and to allow Mr. Chase or Mr. Astle to work with individual students or small groups for reteaching and reinforcement. For Student, Mr. Chase also uses other accommodations. These accommodations include: having Student face the board, keeping Student in a direct line of sight; ensuring understanding and attention through frequent check-ins; permitting the teaching assistant to scribe for Student if necessary; enlarging Student’s writing space on his tests and assignments, giving Student extra time or less math problems on tests and encouraging Student to use enlarged graph paper for calculations. Graphic organizers were also frequently used in class (Chase, Siegel, see J48). He does not do preteaching of math concepts (Chase).
35. Student began using his laptop at the beginning of the year but soon chose to use a pencil in math. Mr. Chase has not encouraged Student to use the laptop feeling that the computer/laptop would be a more appropriate tool after Student has progressed further in math. Mr. Chase feels that while computer programs might help Student practice memorization of math facts which were not yet automatic for him, use of the laptop for other purposes is inhibiting Sean’s mastery of the concepts covered in the fifth grade math curriculum. For example, procedures for multiplying and dividing multi-digit numbers are key concepts taught in fifth grade math. There is a computer in Mr. Chases’ room that is loaded with math programs such as Appleworks, MathBlaster and MathMuncher. Math Pad is loaded on Student’s computer; however, Mr. Chase has not encouraged Student to use Math Pad because he learned from Ms. Siegel that Math Pad provides cues for placing the digits for each step and thus discourages Sean’s independent mastery of the multiplication and division (Chase). Mr. Chase has never used the Math Pad program. He feels however, that Student’s use of graph paper assists him in lining up the numbers has proved effective in accommodating his fine motor deficits, and unlike Math Pad, doesn’t interfere with his mastery of the concept; Id . Mr. Chase is aware of Parent’s concern about Student’s handwriting; however, Student’s handwriting is functional for math and “not the worst in the class” (Chase, see also J48).
36. During the first quarter the math class worked on mean and range, algorithms, graphing, prime numbers, factors, decimals, addition, subtraction and multiplication (Chase, J48A). Student received a C+ in math (J44). As the year began, Student needed to review concepts with the teaching assistant about once per week, but has rarely needed to do so as the year progressed. Student was one of the first students in the class to grasp the difference between “factors” and “multiples” and was able to display his comprehension in written work samples (Chase, J48). Student’s first quarter report card, which showed that Student earned a C+ in math, also showed that improvement was needed in constructing, analyzing and interpreting information, knowing number facts and explaining mathematical reasoning in writing (J44). Student’s grade, like all the other student’s grades, was based on a combination of Student’s mastery of the material; his classroom effort, his improvement and his active participation in class (Chase, J44). Like the other 5 th graders, Student began the year with homework. Homework was discontinued after consultation with Ms. Siegel because of a belief that Student was tired at the end of the day, homework assignments and that homework added to Student’s anxiety and was thus contraindicated for Student (Chase, Siegel). After this conversation, Mr. Chase brought Student’s homework assignment folder to Ms. Siegel to be covered in Ms. Siegel’s class (Chase, Siegel).
37. Under Easton’s proposed plan, Student would remain in his regular 5 th grade class for Science which consists of “hands-on” and small-group activities (Chase, Siegel). Science is divided into four units covering Geology, beginning Biology, beginning Chemistry, and Health/First Aid. Each unit is taught for a full term by one of the four 5 th grade teachers. The fifth graders rotate each term to a different teacher. The teachers set the schedule together and meet before each transition to discuss specific issues such as IEP requirements, modifications and accommodations that should be used in the classroom. Mr. Astle accompanies Mr. Chases’ 5 th grade students when they rotate to the other teacher’s for a science unit. The fifth graders begin with their own homeroom. If Student had been in this class he would be taking geology where students created a model volcano and sorted rocks into groups using specific criteria (i.e., texture, size). During portions of the class involving lecture and group discussion, Mr. Chase, with Mr. Astle’s assistance, uses preview, highlighting, repetition, summarization and spiraling techniques are used as well as graphic organizers and graphics from the Internet. He also uses an outline when teaching the class. He does not give the outline or a study guide to the students prior to the lesson (Chase).
38. Currently Student receives Science in Ms. Siegel’s room on Mondays, Wednesday’s and Thursday’s from 1:30 p.m.- 2:30 p.m. where he is focusing on plate tectonics and minerals (Siegel, Chase, J40, J48C). Student’s science instruction is individual because the other students with similar instructional profiles receive science with their 5 th grade class; Id. Ms. Siegel uses the same books and materials as the 5 th grade and meets with the aide about the instruction taking place in the inclusion classroom. Science is broken down into manageable language, restated, reviewed and reviewed. Concepts and vocabulary are previewed and reviewed and built upon from prior lessons (Siegel, J48C). Student did well with the discussion in class but had some trouble with the essay components. He was tired at the end of the day and often requested to go to the nurse during the science period (Siegel, J50).15 After a break from the nurse Student was able to resume his work with positive results; see J48 p. 259. He received a B in the class (J44, Siegel). “Hands-on” activities and manipulatives are used such as use of the rock kit (Siegel, J48C); however, because Student receives individual instruction he does not have the opportunity to learn and discover through cooperative projects and group interaction (Siegel).
39. Student receives small group Reading/Language Arts instruction and Social Studies in Ms. Siegel’s resource room (Siegel, Mother, J40). Mrs. Siegel serves nine 4 th grade students and four 5 th grade students (including Student). Although the room had in the past been divided into sections, four- foot tall bookcases were added to make the sections more distinct. The 4 th and 5 th graders have little interaction with each other and the students are placed so that it is hard to hear what the other group is doing (Siegel, Axelrod). Student is paired with three other 5 th graders in his homeroom and receives the assistance of Mr. Astle in the resource room. Ms. Siegel also has one other full time aide and an additional aide who is assigned to provide 1:1 assistance to a particular student. The speech/language pathologist team-teaches one language arts session per week with Ms. Siegel (Siegel, J40). At midmorning, Student travels from his homeroom with his three homeroom peers and Mr. Astle to Ms. Siegel’s room. When Student arrives for his Resource Room classes, fourth graders’ classes are already underway with Ms. Altieri and Ms. Siegel (J40). Fourth grade students may leave their side of the room while fifth graders are still receiving instruction, but do not arrive during the fifth grade lessons and do not pass through the fifth grade side of the Resource Room on their way out. (J40, Seigel). Student returns to the resource room with his 5 th grade group after recess16. During the 12:20-1:00 block Student receives 1:1 instruction with Ms. Siegel on Friday. On Tuesday, Wednesday and Thursday, one teacher services Student and the 4 th grader social studies group who are receiving instruction on the other side of the partition. The rest of his 5 th grade peers join him the following period; however on Tuesday and Wednesday Student receives OT or plays drums in the 5 th grade band playing drums during this time period. Except for Thursday, the 5 th graders are the only students in the resource room during the 1:00-1:30 block (J40). On Thursday, the four 4 th graders also receive instruction with Ms. Altieri on the other side of the partition. At that time Mr. Astle helps Ms. Siegel with the 5 th grade group (J40). However, during the following ½ hour period on Thursday, Mr. Astle leaves with the other 5 th graders to their inclusion science. Ms. Siegel’s 4 th graders continue with their Language Arts instruction and at that time Ms. Siegel services Student for science as well as these 4 th graders (J40).
40. Two of the other three 5 th graders in Student’s resource room group have strong decoding skills. All need assistance in organizing information and time to produce a story or report, drawing inferences in reading and writing, developing recall strategies, and improving reading comprehension (Siegel, Axelrod). For Reading Student uses a literature-based curriculum that is integrated with language arts and spelling. Although the groups decoding would permit use of higher-level materials, Ms. Siegel uses a third grade text Signatures to provide concepts that can be easily manipulated for the purpose of developing comprehension. For written language, Ms. Siegel uses the “Framing Your Thoughts,” program because it provides a systematic, sequential, concrete approach to writing development that is appropriate for students who, like Student, have difficulty with abstraction (Siegel, see also Axelrod). In this class Student focuses on generating controlled, purposeful responses for written expression rather than “creative writing” because they are, at this point, better tools for his skill development. For social studies, Student works with his peer group of four using a textbook that focuses on the main ideas of the fifth grade curriculum. Organization and comprehension strategies for Student as well as the others in her class are incorporated from the Landmark Study Skills and the Reading/Language Arts program. Some of these strategies include graphic organizers, fill in the blank and prediction strategies (Siegel, Axelrod, see J44, J48B p. 135, 138, 139, 182).
41. Student meets with the technology specialist for one 30-minute period per week and receives assistance at other times as needed (Siegel, J40). The technology specialist also consults with staff one to two times per week for fifteen minutes and has provided additional training to staff after school. (Siegel). Despite this, there are times that the laptop has not been booted up in the resource room and handouts have not been scanned into the computer (Siegel). The technology specialist assists Student with working on specific programs that he has loaded on his laptop such as Co-Writer , ViaVoice and MathPad Plus. ViaVoice is a voice-to-print program which requires the user to record his/her voice approximately four times for the computer to recognize it and convert the vocal output to printed words (Siegel, Axelrod). The process of recording a child’s voice because of its changing nature is not exact. If a person moves too quickly or does not pronounce something clearly the computer will not recognize the voice (Siegel). As such, Voice-to-Print programs are still in their primitive stage and are often not successful with children (Axelrod). Student’s impulsivity has slowed the process causing the technology specialist to correct a high percentage of the words spoken in the program. Because imprinting Student’s voice has been a long and tedious process for Student and staff, the process was not completed until February 2001. Therefore only a few assignments have been completed using ViaVoice; however, now that Student’s voice is imprinted, staff hope that it will become useful for longer writing projects that will be required in coming years (Siegel). Co-Writer is a word prediction program (Siegel, Axelrod). Student has been trained Student has been trained in using Co-Writer but does not like to use it (Siegel). Easton does not recommend the use of a word prediction program because the program makes connections for words rather than teaching Student strategies to do it himself (Siegel, see also Axelrod). Student has used Math Pad on occasion; however Easton feels that Math Pad’s use is limited since it provides Student’s with unnecessary cues on tasks he needs to master independently (Siegel).
42. When Student first arrived in Ms. Siegel’s classroom at the end of April 2000, he was completely dependent on his aide and wouldn’t even pick up a pencil. At that time he was excited about the laptop, and it provided him with some degree of independence. However, by October 2000, Student began to initiate using a pencil and as the year progressed he declined to use the laptop or computer, even when suggested to him (Siegel). Ms. Siegel has given Student the option to choose the laptop or handwriting to empower him to make choices, to minimize anxiety and to enable him to eventually make appropriate choices as to which form of written output; e.g., pencil, laptop or computer is appropriate to a given task. Although Student’s handwriting is of great concern to his Parents, Student has often chosen to use handwriting and has not shown distress over his handwriting quality (Siegel, see also Axelrod). For example, in December 2000, Student, who had routinely done his spelling sentences on his computer at home, arrived at school with his sentences handwritten and showed them to Ms. Siegel with great pride (J48 p. 216, 259). The sentences failed to leave spaces and include punctuation but Student was able to correct these omissions in his next handwritten assignments (Siegel). Mrs. Siegel has required Student to use the laptop/computer for longer assignments; see J47 p. 259. She generally however, provides Student with options; see J47 p. 270. When Student chose to use handwriting for fill in the blank or short passages, his handwriting was large, with small spacing but was legible ( see J48B, J48D). Student’s handwriting in longer assignments it is harder to read (J47 December 4, 2000, December 9, 2000 entries). As of March 2001, Student was again expressing at least a willingness to use the laptop (Siegel).
43. In late August or early September 2001, Easton contacted Joan Axelrod and asked her to review Student’s records, to observe its proposed program and to provide Easton staff with an opinion as to whether it was appropriate for Student (Axelrod). Ms. Axelrod is a psychoeducational specialist who evaluates students in the areas of cognitive development, neuropsychology, and academics. She also occasionally performs projective testing and conducts workshops around learning disabilities, assessments, and their impact on the curriculum. Ms. Axelrod has been in private practice for fifteen years, has served as a consultant to the Gifford School for five years and has been a psychoeducational diagnostician and clinical director at the Evaluation Center at North Shore Hospital for ten years prior to that ( J47). Approximately one-half of Ms. Axelrod’s consultations are done at the request of school districts and the other half at the request of parents. She has previously testified at the BSEA on six other occassions. All former testimony was on behalf of the parents (Axelrod).
44. After reviewing Student’s evaluations and Ms. Efferen’s report, Ms. Axelrod expected that Ms. Siegel’s classroom would not be appropriate for Student due to the movement of students and teachers in and out of the classroom. Ms. Axelrod first observed Easton’s proposed program on Thursday, September 28, 2000 from approximately 10:00 a.m. to 2:00 p.m. When looking at the activity of the program Ms. Axelrod sat in the same position as Student (Axelrod, Siegel, Silverman). She found that the configuration of the room was not as described in the report. The classroom had two distinct sections, with one of them blocked by bookcases. Student received all of his instruction in this bookcase area. She also noted that while there was a second group of students present, the students were not moving in and out and doing a variety of tasks, but were involved in a single group lesson. Ms. Axelrod first observed a 5 th grade class that was co-taught by Ms. Siegel and the Speech/Language Pathologist. Both teachers used appropriate multisensory, repetition and retrieval strategies and all the children (including Student) actively participated in the activity until the clock said it was time to go.
45. Ms. Axelrod next observed lunch due to her concerns that students in substantially separate programs often interact only with each other. Student chose to sit with a child from his group and five or six other fifth graders. Later at recess, she observed that he played ball with all of the children.
46. After recess ended at 12:30 p.m., Student was able to direct himself back to Ms. Siegel’s classroom for 1:1 Language Arts instruction. Ms. Axelrod observed Project Read materials and structured lessons planned from the Project Read cards and the Framing Your Thoughts curriculum, a developmental writing program that provides a script for writing and is therefore appropriate for NLD students (Axelrod). For the first part of the lesson Ms. Siegel and Student worked on a reading comprehension task. Ms. Siegel asked open-ended questions about a reading passage. Ms. Siegel set up the computer and Student was then directed to read a chapter that he had not previously read and to answer questions on the computer while Ms. Siegel went to the other side of the room to teach the 4 th graders with the teaching assistant (Axelrod, J40). Although Ms. Axelrod knew that the 4 th graders were on the other side of the room she was not aware of their presence from where she was sitting and did not observe Student to be distracted. However, Student did take a long time to get self-organized and get the file opened answering only two questions in forty-five minutes. He was when redirected by the teaching assistant (Ms. Altieri), Student was able to revise his work (Axelrod, see J40).17 When his 5 th grade peers joined him at 1:30 p.m. Student actively engaged in a lesson that was a followed up to the mornings team-taught instruction. The lesson incorporated recall, reviewing and cueing strategies. Student related well to his peers and displayed an error rate similar to three of his four peers (Axelrod).
47. In October 2000, Mother went to the Parent Open House. She was concerned because Mr. Chase did not log the book report assignment required for all 5 th graders into Student’s assignment book, and Student was required to cut out pictures and draw his own map even though his fine motor skills were poor (Mother). Student’s homeroom desk was cluttered and disorganized (Mother). Mother was also concerned because Ms. Siegel showed her no creative writing, work samples for reading were mostly one-sentence answers and the work samples with the exception of spelling were handwritten (Mother, see J49). Mother contacted Mary Ellen Efferen (Mother, Efferen).
48. On October 12, 2000, Ms. Efferen observed Student’s 5 th grade morning Reading and Social Studies instruction (Efferen, J40). She did not observe any other parts of Student’s 5 th grade program but felt that the observation provided her with sufficient basis to form an opinion and recommendations about the program. At this observation Mrs. Siegel’s classroom was much more structured than when she had observed in May 2000 (Efferen). The room was divided into two distinct sections by bookcases. A math group of three students worked with an aide in the large area whose instruction could be heard if someone “wanted to” (Efferen). Student’s reading group of three worked in the “self-contained” area with Mrs. Siegel. The reading lesson was effective and “well planned,” with a white board set up with a list of predictions about the story. The student’s reviewed previous material and then read aloud with Mrs. Siegel using prediction strategies, pointing out vocabulary, asking questions and directing review of text as needed to answer them. Student was able to pay attention for a forty minute period (Silverman). Student volunteered an answer and volunteered to read, but had difficulty with attention when others were reading; however Student left instruction to receive his Ritalin at that time. As such, it was unclear whether Student’ s inattention was medication related (Efferen). Ms. Efferen felt that it would have been helpful to use graphic organizers, outlines and study guides but did not talk to Ms. Siegel about this. She reviewed the social studies textbook and concluded that some of his work product could be Social Studies related. She felt however that the reading lesson was not integrated into the Science and Social Studies curriculum but did not review either curriculum. After reviewing the IEP’s of the students in the resource room, Ms. Efferen found three students to be inappropriate because one had lower cognitive ability and the other two had difficulty with reading decoding. Ms. Efferen did not know if any of those students were grouped with Student (Efferen). In addition, one of the boys in Student’s peer group was inappropriate because he had cognitive scores placing him in the borderline range of development and another student had difficulty with decoding. Ms. Efferen did not talk to Ms. Siegel about her concerns (Efferen).
49. Ms. Axelrod observed Student’s program for a second time on Friday, November 3, 2000 so that she could view Student in his homeroom (Axelrod). Student was working with his class on multiples and making factor charts on graph paper using cutouts. Student was sitting with a group of regular education students cutting out his factor charts and recording his results while Mrs. Siegel and Mr. Chase were circulating around the groups. Although Student’s cutting skills were lower than his peers, he did not seem anxious and was actively engaged in the group. Student also participated in the special presentation that followed, volunteering twice to speak during the discussion. During the Read Aloud period, Student was also engaged. Student was able to sign out to use the bathroom even though his handwriting was awkward. He showed no hesitation in signing out (Axelrod). Student and his peer group then left the regular education classroom for language arts in Mrs. Siegel’s room. Student participated in this group and got all of the vocabulary and base words correct in the lesson18. He did have difficulty with some of the inferential questions, misinterpreting the intent of the question. When the class was over Student went with his two peers to his speech and language session. He worked well in the group project and had a reading error rate similar to the other students in the group. Although one of the students had lower decoding skills, the others were able to decode the text relatively easily and the reading level was appropriate for Student. When reviewing the records of Student’s 5 th grade resource room group, Ms. Axelrod noted that all the students needed work in comprehension and instructional strategies like Student and their functional skills are in approximately the same range as Student. She also noted that one student had a profile on paper indicating lower cognitive functioning than Student’s. That Student’s disability, however, was related to radiation treatment for a medical condition and this student, as is often the case with such students, displayed actual functional skills were higher than shown on paper and presented with a profile similar to that exhibited by students with NLD. As such, that Student was also an appropriate peer for Student (Axelrod, see also J46).
50. Ms. Efferen conducted an educational evaluation on November 6, 2000 in order to prepare for hearing (Efferen).19 She did not inform Easton that she would be conducting the evaluation nor did she gather any current information from the teachers (Efferen, Silverman, Siegel Latham, see J43). Student was cooperative during testing. He was able to use contextual cues, repetition, clarification and ECHO strategies to aide in comprehension and was comfortable asking for extra time when he needed it. Student also used movement effectively to address fidgetiness (Efferen, J43). He often recognized when he made a mistake and was able to self correct it and used feedback effectively (Efferen). He however displayed delayed processing time and difficulty switching between cognitive sets without warnings, extra time and rehearsal (J43). During reading, Student displayed some problems scanning sentences and rows in math computations especially when the print became smaller; Id. . Although he told Ms. Efferen that he did not like reading, Student did happily share his reading folders with her, described what he was doing in reading and displayed pride in his spelling (J43). When asked to write, Student informed Ms. Efferen that his writing was not very good but did not complain about having to do the written portions of testing. When writing, Student tended to squeeze the pencil and bore down heavily on the paper. He had difficulty with the proper formation of letters and difficulty staying between the lines and displayed uneven sizing and spacing between letters. Student also displayed movements in his other hand, mouth and upper body when he was writing. He also tended to mix capital and lower space letters and punctuation was limited to periods at the end of the sentence. His written expression was sparse.
51. Easton used the Detroit Test of Learning Aptitude, 3 rd Edition (DTLA-3), the Beery Test of Visual Motor Integration, selected subtests of the Woodcock Reading Mastery Test, silent reading subtests of the Durrell Analysis of Reading Difficulty, Form A of the KeyMath and the Written Expression Subtest of the Peabody Individual Achievement Test during Student’s 3 rd grade reevaluation (J19). The school psychologist also did educational testing using the WISC-III (J17). Ms. Efferen chose to administer the Gray Oral Reading Test-3 rd Edition (GORT-3), subtests of the Woodcock-Johnson Tests of Achievement Revised (WJ-R), the Test of Reading Comprehension 3 rd Edition (TORC-3), the Wechsler Individual Achievement Test (WIAT), the Kaufman Tests of Achievement (KTEA) and the Listening Comprehension subtest of Clinical Evaluation of Language Fundamentals-3 rd Edition (CELF-3)20. She chose these assessments because she was only going to do one session of testing and could get the results she needed from these tests (Efferen, see J43).
52. At the time of testing Student was in the 2 nd month of 5 th grade (Efferen, J43). Student showed strength in spelling and growth of 1-1/2 years in basic reading comprehension skills since tested in January 1999 (Axelrod, compare J19, J43). Student also showed strengths in spelling, word recognition and word analysis. During short reading comprehension passages, Student, then grade 5.2, scored in the mid to late 4 th grade level. He was not however, able to recall what he read during longer passages without cuing (J43). During silent reading, Student scored at a 3.4 grade equivalent on the TORC-3 (J43). In January 1999, Student scored on a 3.3 grade equivalent on the Durrell (J19). When Student was asked to write words “in alphabetical order” or underline the “root” word, Student was not able to execute the instruction.21 Ms. Efferen however, did note that Student’s written school work demonstrated that Student was able to alphabetize a long and complicated list of words with the cue “abc” words (Efferen, J43). Ms. Efferen also noted that during her testing Student was not able to display basic subtraction facts on the KTEA even though he had scored in the 96 percentile on the KeyMath in 3 rd grade (Efferen, compare J19, J43). Student was able to do only the two, five and six multiplication tables but was not able to do division saying that he couldn’t remember how to do them (J43). He had not yet done division problems in his math class (Chase). He was able to use strategies to break down multistep directions and asked for repetition and redirection (J43). Student’s performance in science and social studies were also below expectations; however, some of his lowered performance may have been affected by difficulties with word retrieval (Efferen, J43).
53. Ms. Efferen compared Student’s performance on testing with educational testing done in January 1999. She found that Student’s performance had dropped from the average to above average range to the average to low average range (Efferen, J43). Given the nature of Student’s disability and the increase in pace and complexity of the curriculum Student’s scores would be expected to go down but should not go down to such a degree in so fast a time (Efferen). As such, Ms. Efferen recommended that Student be placed in a full year program to catch up on missed skills (Efferen). This program should be a small, structured, self-contained program designed for children with learning disabilities and average cognitive potential. Student should be paired with peers with similar learning needs who are working on the same subject at the same time; where discussions, cooperative work activities, role playing and interactive learning experiences can naturally occur, and where organizational, sequencing and retrieval strategies and assistive technology are incorporated into the program (Efferen).
54. Comprehension and memory strategies recommended were:
graphic organizers, semantic webs, and character and story maps in reading assignments;
·preteaching of vocabulary and key concepts paired with written information;
·ongoing opportunities for repetition, review, clarification and summarization;
·use of multiple choice and fill in the blank tests and extended time for testing;
·study guides and study outlines for class and test preparation;
·reduced written information on worksheets and printed material with a clear contrast between the foreground and background and left margin cues
·individualized directed instruction in math with emphasis on subtraction and division with strategies for solving word problems
·systematic reduction of adult feedback for sustaining attention on difficult or multistep tasks and slow increase the amount of work that Student should do independently
·a handwriting program to increase legibility and aid in letter formation if after consultation with Student’s therapist and Parents, Student is willing and not anxious about his handwriting
·referral to a behavioral optometrist for a functional vision assessment
·continuation of the related services and technology outlined in Student’s IEP (J43).
55. During the first term Student had a 94% average on his spelling tests and received an A- in spelling (Siegel, J44, J48B). He was given the choice to use used both his computer and handwriting in spelling and used each (Siegel, J48B, J48D). Student actively participated in previewing, prediction and summarizing discussions in his small language arts group but needed improvement in understanding implied meanings, demonstrating comprehension in written responses and demonstrating independent reading habits (Siegel, J44). He needed assistance in writing to generate written thoughts, reminders to add details to his writing and assistance in using correct capitalization and punctuation. His writing, however, has shown some creativity and variation in sentence structure (Siegel, J44, J48B). Student was an active participant in Language Arts, Reading and American History discussions (J44, Siegel, Axelrod). He received a B+ in Reading and Language Arts and a B in Social Studies (J44, Siegel). Student continued to avoid lunch-bunch but was comfortable and relaxed in individual sessions with Ms. Silverman and showed growth in his ability to carry on a conversation, concentrate on a game or puzzle or discuss his personal strengths (Silverman, J44).
56. The TEAM reconvened on November 28, 2000 to review Ms. Efferen’s evaluation (Silverman, Efferen, Siegel, Mother, J45). The TEAM also reviewed Student’s progress notes and MCAS testing (Silverman, Efferen, J45, Latham). Unlike the June 2000 Team meeting, this meeting felt tense to the TEAM members (Silverman, Efferen). Ms. Efferen presented her report. The Easton staff expressed disagreement with Ms. Efferen’s conclusions that Student’s program at the Olmstead was not appropriate due to his progress in Math with Mr. Chase and his MCAS scores, his progress in Ms. Siegel’s program and his interaction with peers in a mainstreamed 5 th grade setting (Silverman). Ms. Silverman also contested Ms. Efferen’s use of grade equivalent scores because they were the least valid and can not be compared to his last reevaluation and noted that the scaled scores all remained within the average range (Silverman). Easton staff then asked Ms. Efferen why she felt the program was inappropriate (Latham, Siegel, Silverman). Ms. Efferen became uncomfortable when staff asked her to explain “what was wrong with Easton’s program” because she viewed it as “no longer talking about Student”. She did not respond to Easton’s requests (Latham, Efferen, Silverman).
57. Parents again requested that Easton develop an IEP for a self-contained out-of-district program. Several out-of-district self-contained programs were discussed including, The Hamilton School at Wheeler, the Learning Prep School, the Hillside Academy, Landmark School, and collaborative programs including CHARMSS and the South Shore Collaborative. Although Easton felt that their program was appropriate, Mr. Latham made inquiries and/or arranged visits to a number of out-of-district placements at Parents’ request, including Hillside, Linden, Landmark, Learning Prep, South Shore Collaborative, and Charmss Collaborative. Landmark had rejected Student and Hamilton Wheeler had no openings. The Hillside and Linden programs were observed and determined to be inappropriate for Student (Efferen, Silverman, see also Axelrod). The TEAM also determined that the South Shore Collaborative had an inappropriate peer group for Student (Silverman, see also Efferen). Easton also determined that the CHARMSS program was inappropriate for Student because when they observed the program on October 6, 2000, the teacher characterized the students as language impaired and described that the focus was Orton-Gillingham type programs to remediate decoding deficits (Silverman). Ms. Silverman has also observed at Learning Prep, and noted that like CHARMS, it focuses on reading programs such as Orton-Gillingham to remediate decoding deficits and would thus be inappropriate for Student (Silverman, see also Axelrod). In addition Learning Prep has eight or more periods per day, with each student moving from class to class and from peer group to peer group. This facet of the Learning Prep program is inconsistent with Ms. Efferen’s recommendation that instruction be in one classroom with a consistent group of peers and does not address Parents’ concern regarding a complicated schedule for Student (Silverman). As such, Easton rejected an out-of-district placement for Student.
58. After reviewing Student’s current program and Ms. Efferen’s evaluation, Easton concluded that it could implement Ms. Efferen’s suggestions for programming and modifications into Student’s current 5 th grade program (Silverman). As such, it recommended that Student continue in his current program but that he should receive science in his regular 5 th grade class with support. The Team also discussed Ms. Efferen’s recommendation for handwriting instruction and determined that, given the demands on Student’s time during the school year, it would provide such instruction over the summer along with a six week summer program that would addressing language comprehension and written language skills (J45). Easton had previously recommended that Student receive speech and language twice per week in September 2000 to include an extra session to work on visualization and verbalization techniques ( see J42). However, In this IEP Easton reduced speech and language services with the speech language pathologist to the previous one 30-minute session per week because Parent’s had previously rejected that IEP and Ms. Siegel was trained in visualization and verbalization and could do these techniques in the classroom (Siegel, Silverman). Parent’s viewed inclusion in 5 th grade science and a recommendation for speech/language therapy once per week as a reduction in services. Easton felt that it was continuing Student’s services in a less restrictive setting ( compare Mother, Silverman). Parents and Ms. Efferen was surprised that Easton recommended continuation of inclusion math believing that her testing belied this. Mr. Chase however, was not surprised that Student could not do the division problems because he had not covered division in class (Chase, see J49. Ms. Efferen also felt that if the decision to keep Student in inclusion math was based in any part on MCAS results, the results should be discounted because MCAS was not designed for special needs students and that if modifications were provided, the score had to be questioned. Ms. Silverman disputed Efferen’s view that Student’s MCAS results should be ignored in educational planning because the staff had administered it based on instructions from the Department of Education with accommodations that were authorized and part of Student’s IEP. She also felt that the MCAS tested the skills actually taught in school and as such were an accurate reflection of Student’s understanding of the material (Silverman). Parents rejected the IEP (Mother).
59. At Easton’s request, Ms. Axelrod reviewed Ms. Efferen’s observation and testing results (Axelrod, Silverman). When looking at the testing Ms. Efferen concluded that Easton’s 3 rd grade testing had not been designed to measure silent reading skills and thus did not provide a basis of comparison to conclude that Student had lost ground in reading comprehension. Nor could the math tests from third and fifth grade be compared, since at the time of the 3 rd grade Student had be exposed only to addition and subtraction and when tested with the Key Math test in 3 rd grade addition and subtraction was tested separately; Id . When Ms. Efferen tested Student in fifth grade with the KTEA, Student had to switch back and forth between addition, subtraction, multiplication and division. The KTEA is not a particularly good assessment for math skills with persons with Student’s profile because switching back and forth between operations is a task that is particularly difficult for students with NLD (Axelrod). Consistent with his profile, Student displayed greater difficulty with silent reading and test scores within the 20-25 th percentile consistent with what would be predicted for a student with NLD.
60. Ms. Axelrod agrees with Ms. Efferon that Student requires a small, structured program that incorporates organizational, sequencing and retrieval strategies; compare Axelrod, Efferen. She also agrees that Student should be paired with peers with similar learning needs where students are working on the same subject at the same time where discussions, cooperative work activities, role playing and interactive learning experiences can naturally occur. She is also in agreement with many of the comprehension and memory strategies recommended in Ms. Efferen’s evaluation; Id.
61. Ms. Axelrod disagrees with Ms. Efferen’s conclusion that Student should be placed in an out-of-district self-contained setting, however. She believes that students should have the benefit of inclusion with typical peers if possible (Axelrod). Ms. Axelrod believes that outside placement might be appropriate if a student requires specialized programming that the school is not equipped to deliver, where there is no peer group or an inappropriate peer group, when parents and schools have irreconcilable differences, or where continued placement in a school program is emotionally detrimental to a student; Id . Ms. Axelrod opined that none of these conditions exist here. Moreover in her view, the Easton program met the recommendations in Ms. Efferen’s reports because the program by providing a substantial part of Student’s instruction with other learning disabled students who are appropriate peers, as well as opportunities for individual and small group instruction and cooperation and interaction with other students. Additionally, Easton’s program would privide instruction where information is not imbedded, which incorporates language with simple sentence structure and instruction which provides repetition, opportunity for clarification, explanation, and ample opportunity for review, warm-up rehearsal, orientation to the lesson and opportunities for individual and small group instruction and cooperation interaction with peers (Axelrod). When observing the program and looking at the teacher’s materials and Student’s work samples, Ms. Axelrod found strategies for organization and retrieval such as graphic organizers but noted that, perhaps, with consultation, and with more time with this program, Easton might develop better retrieval strategies to expedite Student’s independence. Ms. Axelrod agrees that Student’s inability to organize his handwriting is interfering with his work production. She agrees that Student could address this skill over the summer, if he wishes, although she concurs that the summer program should focus on written expression. Ms. Axelrod also agrees that Student needs to be pressed to increase computer use, especially for longer assignments; however, it is appropriate for his teachers to take Student’s anxiety into account and important to increase his ability to make choices. In addition to use the computer exclusively would impair Student’s ability to “jot down a note” or “write a sentence or two or three” (Axelrod). Ms. Axelrod does not however agree that Student needs to continue in individual therapy or “lunch-bunch” because for kids with NLD, the anxiety is caused by the disorganization and as such talk therapy is not particularly helpful. In Ms. Axelrod’s view, a more effective strategy is for the teacher to address situations as they arise. Ms. Axelrod has observed Ms. Siegel deal with such situations.
62. Ms. Axelrod also recommends that Student continue to participate in his math class because the curriculum currently used at the Olmsted is very controlled and cohesive, has a lot of reiteration of skills and is computation based. Although typically students with NLD have difficulty with math, Student’s class performance, work samples and MCAS scores show that Student has been able to keep up. However, “if Student is part of the program [in the 5 th grade class] he should be part of the program “ and receive homework like the others” (Axelrod). He may also need extra math support in the resource room in order to continue to make such progress; Id .
63. The Learning Prep School in Newton, MA has indicated that it has an opening for Student. If accepted, Parents want Student to attend (Mother). Easton does not feel that Learning Prep is an appropriate program for Student because Student does not have a language-based learning disability. Although other programs may also deal with executive functioning deficits, the instruction would be too slow for Student and the peer group would not be appropriate (Silverman). Although there are some programs that treat NLD students, those programs also service students with social deficits and would not be good role models for Student (Axelrod). The Parties do not know of any program that exclusively treats NLD students (Efferen, Axelrod). The main purpose of programming for NLD students was not to “remediate specific skills, but to assist them to integrate, to pull it together.” Even if a school with a group of NLD students could be located, it would not be optimal for Student because he is very well connected with the other students at Olmsted and as such should continue to receive his education there (Axelrod).
FINDINGS AND CONCLUSIONS
There is no dispute that the Student is a student with special learning needs as defined by M.G.L. 71B and 20 U.S.C. 1401 et seq. , and is thus entitled to receive a free, appropriate public education that assures his maximum possible development within the least restrictive environment. There is also no dispute regarding the nature of his special needs. This Student has a nonverbal learning disability and ADHD that results in difficulty attending, increased distractibility, deficits in visual-motor performance, weakness in motor planning, fine-motor deficits (i.e., difficulty writing), reduced processing speed and organizational and sequencing deficits when information is lengthy or complex.
This Student has been evaluated several times and received fairly consistent recommendations for programming from both School and outside evaluators. These recommendations are for Student to receive instruction in a small, structured, self-contained program designed for children with peers with average cognitive potential and similar learning needs. The program should incorporate comprehension, organizational, sequencing and retrieval strategies throughout the school day. The Parties also agree that Student needs to use appropriate assistive technology to assist in his learning and as an alternative for lengthy writing assignments and consultation to ensure that Student incorporates the assistive technology throughout the day. The Parties also agree that Student requires OT and speech/language services and consultation, continued psychological monitoring of Student’s stress level, and a systematic reduction of adult feedback and slow increase of the amount of work that Student should do independently.
The Parent’s believe that these recommendations can not be implemented in Student’s current program because his special education instruction takes place in a resource room serving both 4 th and 5 th graders. As a result, there are too many visual and auditory distractions due to simultaneous instruction and people coming and going from the room. They also feel that Student’s resource room peers are inappropriate for him, that the math and science classes are too large and go too fast for Student to benefit from even with the assistance of an aide, and that Easton has not adequately implemented the AT recommendations.
After review of the documents and testimony presented in this matter, I find that the program that would maximize Student’s educational development in the least restrictive environment would be continuation in Easton’s program with some modifications.
A. THE LANGUAGE ARTS, READING AND SOCIAL STUDIES PROGRAM
Student’s current IEP calls for Reading, Language Arts and Social Studies in a small group setting in Ms. Siegel’s room. It is appropriate for Student to continue there. Student is in a self-contained resource room that is designed for students who have “broken the code” for reading but who require substantially separate programming due to deficits in written language and comprehension (Siegel). This fits Student’s profile. He is an active member in his group (Efferen, Silverman, Siegel, Axelrod). He has also increased his independence in this program (Siegel, Axelrod, see also Mother). Student is paired with other 5 th graders with functional skills comparable to Student’s. Like Student, these peers also have trouble with transitions and organization and need their day set up so that they know their schedule, their assignments and necessary supplies for each class. Both Ms. Efferen and Ms. Axelrod have observed that Ms. Siegel does this (Efferen, Axelrod). The record also shows that Student travels to and from Ms. Siegel’s room with his peer group and his aide each morning (J40, Siegel) and is also able to get himself back to Ms. Siegel’s room after recess (Axelrod, see J40).
Both evaluators observed that Ms. Siegel delivered well planned multisensory lessons that incorporated ECHO, summarization and elaboration strategies and that Student interacted well with his peers. Ms. Axelrod also saw use of repetition, chunking and other retrieval strategies, confirmed that Ms. Siegel used organization and comprehension strategies from the Landmark Study Skills and the Reading/Language Arts programs and observed these and other appropriate materials prepared and in use (Axelrod). Ms. Efferen has indicated that the Social Studies curriculum is not integrated with the language arts lessons; however Ms. Efferen did not look at the Social Studies curriculum or talk to Ms. Siegel about her concerns. On the other hand, Ms. Axelrod after observing Social Studies, talking with Ms. Siegel and examining the curriculum found that the Social Studies instruction was appropriate. As such, her testimony is given greater weight.
Ms. Efferen also feels that because the reading and writing text is below Student’s grade level it is inappropriate because Student has good decoding skills. Ms. Efferen’s testing shows that Student has lost ground in silent reading skills. However, Ms. Axelrod is credible in her assertion that Student’s 3 rd grade testing had not been designed to measure silent reading skills and could be compared with current testing to show that Student had lost ground in reading. The ‘Signatures’ reading book is at a 3 rd grade reading level. The curriculum however, is geared toward 5 th grade and Ms. Siegel’s and Ms. Axelrod’s testimony that it can be manipulated to aide in comprehension is credible. Ms. Siegel’s and Ms. Axelrod’s testimony that the ‘Framing Your Thoughts” writing program is appropriate for NLD students because it is geared to provide a systematic, sequential, concrete approach to writing development script for writing is credible and is given weight. Ms. Efferen’s testimony that the texts were inappropriate was considered; however, neither she nor Ms. Axelrod could identify more appropriate materials. Ms. Efferen’s testing shows that Student had gained 1 ½ years growth in reading comprehension in 1 ¾ years (Axelrod, compare J19, J43). Ms. Efferen’s testimony that Easton staff did not incorporate graphic organizers in Student’s lessons was also considered. The record shows however, that Easton staff have been trained to use, and observed to use, graphic organizers and Student’s work samples are replete with graphic organizers, multiple choice and fill in the blank options in all subjects (Siegel, Axelrod, J47, J49). Study guides and outlines would be useful for this Student but the failure to provide them in math or in his self-contained program can be remedied through ongoing consultation which Easton is ready to accept and Ms. Axelrod is ready to provide.
The IEP does however need to be amended to include the 30 minute weekly visualization and verbalization services (V&V) recommended by Easton at the September and November TEAM meetings but not included in the November IEP. Either the speech/language pathologist or Ms. Siegel can implement these services.
B. THE RESOURCE ROOM SETTING
Parents and Ms. Efferen have expressed concerns that even if the instruction is appropriate, Student can not access it because the class is a resource room servicing groups of students in different grades who are coming and going and thus impacting on Student’s ability to attend to the lessons. This has been carefully considered; however, the record does not support this conclusion. It is uncontroverted that Ms. Siegel’s instruction takes place in a large room and that the 4 th and 5 th grade groups are divided into sections behind four-foot tall bookcases and have little interaction with each other (Siegel, Silverman, Axelrod, Efferen).22 Fourth graders may leave while the 5 th graders are having instruction but do not arrive during the 5 th grade lessons and do not pass through the 5 th grade side of the room. When Ms. Axelrod observed in September and November 2000, she saw not students coming and going, but two cohesive student groups, each lead and supervised by an adult, and no waiting by Student (or anyone else). Although Ms. Efferen noted that she could hear both sets of lessons if she wanted to, she was, unlike the students, positioned at the edge of the divided areas so that her line of vision and hearing encompassed both sides of the barrier. Student is inside the bookcase area. Both Ms. Siegel’s and Ms. Axelrod testfied credibly that neither Student nor the other 5 th graders are distracted by the other group lesson taking place in the larger space outside the bookcase area. Additionally, Ms. Efferen noted that Student was able to focus and maintain his learning set even when barriers did not separate the room in May, 2000 (J33). Ms. Efferen did observe Student’s attention to wander during reading but speculated that this inattentiveness was related to Student getting up to go to the nurse or because a graphic organizer was not given, not by the presence of a second instructional group on the other side of the barrier. Ms. Silverman observed that Student was able to concentrate for forty minutes. Ms. Axelrod also observed that Student was able to hold his concentration during his group lessons. Mother has noted that Student is very aware of noises even if they are occurring in another room. While Mother’s and Ms. Efferen’s observations do not merit removal from Ms. Siegel’s class, Easton should do some further investigation to see if some modifications can be made to further muffle sound (i.e., carpeting, padded dividers)23.
Of more concern is that when Student returns to Ms. Siegel’s class after lunch on Monday, Wednesday and Thursday’s he is the only 5 th grader on his side of the room because Ms. Siegel and the 4 th grade aide are involved in instruction with the 4 th graders. Although it is appropriate for Student to do some independent work, Ms. Axelrod noted that Student was slow to get started and only answered two questions in a 45-minute period. Student was however, able to correct his work with redirection from the aide. An appropriate accommodation would be for Ms. Axelrod to assess the current situation to determine if more frequent prompts should be scheduled or other modifications should be put into place to increase Student’s ability to do independent work.
C.THE PROPOSED INCLUSION PROGRAM
Student should also continue in his inclusion program with his peers. During homeroom, Student trades cards with the class, protests with the others when a Read Aloud activity ends too soon, eats and plays with other 5 th graders at lunch and recess and is often chosen as a partner in math. Ms. Efferen’s testing shows that Student no longer could do subtraction problems even though he was able to do them in 3 rd grade. However, the test that Ms. Efferen used required Student to switch back and forth between addition, subtraction, multiplication and division and as such reflected Student’s disability instead of assessing his math skills. Moreover, no single procedure may be used as the sole criterion for … determining an appropriate educational program for a child; 34 C.F.R. 300.532. Student’s math work shows that he is able to understand many of the problems, including subtraction; that accommodations such as scribing, enlarged writing space and enlarged graph paper are provided. Mr. Chase was able to tell this Hearing Officer that he has Student face the board and keeps Student in his line of sight, ensures understanding with frequent check-ins and extra time for processing and uses enlarged materials that he makes up for Student and some of his peers. Mr. Chase was enthusiastic and motivated and willing to admit when he didn’t know something or made mistakes. Given this, it would be inappropriate to remove Student from mainstream math. Mr. Chase readily admitted that he did not do preteaching of math concepts, did not use the same assignment materials as Ms. Siegel because he did not know what they were and that the technology specialist was rarely in his classroom. This needs to be remedied. In addition, if Student is part of the math class he should have homework like the rest of the class, taking into account appropriate modifications and monitoring of his stress level. I find that Mr. Chase will, with consultation, be able to modify the math program to meet Student’s needs. During testimony Mr. Chase was not defensive and was observed through each day of hearing actively listening and taking notes on where he could improve his performance. With ongoing consultation, Ms. Axelrod will be able to determine if Student requires extra math help in the resource room and will, with Ms. Siegel, assist Mr. Chase in employing more of the accommodations and modifications that Student needs.
The evidence also supports Student’s participation in mainstream science. Although Student receives adequate academic instruction he does not have the opportunity to learn and discover through cooperative projects and group interaction. The entries in the nurses log and communication notebook show that when Student was receiving one on one instruction he often took a break at this time. The mainstream science class is broken into group activities and would give Student the ability to take a break and move about the room. Student would also benefit from the previewing, highlighting, repetition and summarization techniques and graphic organizers used in the class. Mr. Chase does not give his outline or a study guide to the students prior to the lesson; however, if Easton staff or the consultant determined that Student needed this or other modifications, the teachers would be able to implement them.
D. THE TECHNOLOGY COMPONENT
The Parties agree that Student needs to learn to use Assistive Technology as an alternative to handwriting. The Parties also agree that Student also requires consultation to incorporate appropriate technology into his program, consistent and ready access to a computer to utilize the technology effectively and psychological monitoring of his stress level regarding handwriting and assistive technology. Easton did have not recommend a laptop and had some delay in obtaining and activating the MathPad and word prediction programs recommended software programs in September 1999. That IEP was rejected by the Parents and as such could not be implemented until it was accepted in April 2000. Although Student’s laptop was physically in the 4 th grade math class and in the resource room, Student could not access it effectively because it was not turned on and ready for him to use in a timely manner. This continued in 5 th grade. Although consultation from the AT specialist was supposed to occur with all of his teachers, Mr. Chase rarely saw the AT specialist and did not know her name. Student showed signs of mental fatigue during long keyboarding sessions the reason for this was not explored.
The September 15, 2000 amendment that extended Student’s day for AT services due to the AT specialists’ availability was also improper. A TEAM may alter the duration of a student’s school day may be changed only when such alteration is necessary to provide FAPE; 603 C.M.R. 28.05(4)(d). The reasons for a different duration must be stated on the IEP; Id.24. The IEP must state the reason for the change in duration; Id. . When Parents rejected this provision Easton was obligated to provide thirty minutes of AT instruction per week and thirty minutes of consultation with the resource room teacher and aide and regular staff as needed pursuant to the last agreed upon IEP. The AT consultant did provide the services to Student and did consult with Ms. Siegel and her staff but the consultation with Mr. Chase did not occur.
Student’s handwriting is functional for math and for short lists and sentences but is hard to read when passages are longer and does affect his output. Although Ms. Siegel testified that she does require Student to use the computer for longer passages; computer use is not always consistent. Student’s stress level should be taken into account and Student should be encouraged to make choices regarding whether he wants to handwrite or use the computer. Technology should assist Student but not hinder the mastery of grade level curriculum and not be so cumbersome that it can not be used effectively. Even in the era of laptops and electronic organizers, there will be occasions where it is important for Student to write a sentence or three and be comfortable doing so. He also needs to effectively use the computer when his handwriting production hinders his thought process and/or output and needs to find a comfortable balance between the two options. Easton approved an independent OT and AT evaluation at Children’s Hospital. Parents never pursued this evaluation. These evaluations should be done with consultation with Student’s therapist. The evaluators should explore in what circumstances Student prefers handwriting to the computer and why; if the configuration of the laptop keyboard is contributing to Student’s fatigue during long sessions; and if so, can adaptations be made. The evaluators should also determine what programs would be useful for Student to use to accommodate his NLD’s but not do the work for him and make recommendations about how much AT training Student requires and how much consultation his teachers and Parents need to help him utilize the technology. The evaluators and therapist should also make recommendations about whether Student would benefit from further handwriting instruction, determine if Student is willing to engage in this instruction and for what tasks should handwriting be used. Easton did not fully implement the AT strategies agreed upon in the IEP and did not install some of the programs in as timely a manner as they could have. Parent asserts that Student should be placed in a private self-contained program because in part, Easton has not implemented the AT recommendations. The use of AT is an ongoing process and Easton has demonstrated that it can integrate its use in Student’s program. It can with consultation do what it needs to do to appropriately implement Student’s AT needs. An appropriate remedy would be not for a private day program but for Easton to fund at least nine hours of private consultation from the independent evaluator as compensation for any failure to provide consultation and monitoring.25
E. PSYCHOLOGICAL SERVICES
Student’s current IEP designates thirty minutes of counseling with the school psychologist, lunch-bunch once per week and psychological monitoring of Student’s anxiety level. It is appropriate for the monitoring to continue and also appropriate to periodically check with Student’s therapist about anxiety issues. It is not necessary for lunch-bunch to continue to be included on the IEP. Student interacts with his friends at lunch and is an integral part of the school. Additionally, social pragmatics is a part of Ms. Siegel’s program. While Student may have needed to have school counseling when his anxiety level was high, the record shows that his anziety has been reduced with the change of program making the counseling unnecessary. At this point in time, that thirty-minute period could better be used to work on organizational or retrieval skills.
Easton will develop an IEP that designates Language Arts, Reading and Social Studies instruction in Ms. Siegel’s program, math and science and nonacademics in the mainstream setting and includes thirty minutes per week of instruction and goals and objectives for V&V comprehension strategies. The IEP will also include consultation by Ms. Axelrod26 and consultation from an AT consultant familiar with NLD’s. Easton will also evaluate whether auditory distractions exist and if so, could the room be further adapted to lessen these distractions. It will also fund an independent AT and OT evaluation to assess when Student’s what AT and handwriting assistance Student requires. Psychological monitoring will continue and psychological consultation with Student’s therapist will be added to the service delivery grid but lunch-bunch and individual counseling should be removed from the IEP.27
By the Hearing Officer,
Joan D. Beron
Date: June 28, 2001
Additional Hearing dates were added due to shortened days to account for travel during snow and ice storms.
An extension for submission of closing arguments was granted by requests and assents from both Parties.
Easton asserts that its program is appropriate as is currently constituted, but has offered to make modifications to its program.
Prior to the close of evidence, Parents had not identified a specific private or public school program that had found Student to be appropriate; nonetheless, Parents wished to proceed to hearing to determine appropriateness of Easton’s IEPs. Easton agreed to explore alternatives if the hearing officer decided that Easton’s program could not be made appropriate with modifications. The Parties agreed to bifurcate the hearing for this purpose.
Easton’s IEP designates Science in a substantially separate setting in the hopes of obtaining an accepted IEP.
Student was diagnosed with ADHD by his physician prior to preschool (J2, Mother). Dr. Elizabeth Baker, neuropsychologist from Franciscan Children’s Hospital, evaluated Student on July 24, 1996 when Student was six years old. At that time she suggested that “depending on his development over the next few years, problems in the nonverbal domain may emerge as a nonverbal learning disability (J10). Dr. Baker reevaluated Student in November 1999. Dr. Baker concluded that “Student’s trouble with complex inferences and integration are frequently considered to be part of a nonverbal learning disability but Student does not have the poor social skills, significant vulnerabilities in math and consistent below age level performance on visual, perceptual tasks that appear to be characteristic of NLD”; see J29. Student has not formally been diagnosed with NLD; however based on review of the records and the testimony presented at hearing Student presents with classic NLD (Axelrod).
Joan Axelrod, an educational consultant, hired by Easton, observed Student’s program. She testified that during a presentation by a firefighter who lives in Student’s neighborhood, Student interrupted the presentation to comment on his personal relationship with the presenter. This was viewed as a social miscue characteristic of a person with NLD (Axelrod).
8 CAP testing had been conducted previously, in 1996, by Franciscan Children’s Hospital (FCH) pursuant to an independent evaluation that Parents had requested on March 18, 1996 through their advocate, Marge Pacetti. (J7) This CAP testing was inconclusive, and recommended follow-up (compare J9, J10). FCH evaluators had recommended a 1:1 aide for academics in an inclusion classroom with modifications to facilitate attention (limiting sentence length and complexity, repetition, sequencing activities, preferential seating), as well as increasing OT and speech therapy from 1x 30 per week to two half-hour sessions per week. Subsequent IEPs for 1 st grade were accepted (J11, J13, J14) and implemented (J12- observation FCH/Baker).
The AT evaluation was received on June 25, 2000 (J24).
The Parents never pursued the OT evaluation or the AT evaluation at Children’s Hospital (Silverman, Mother).
The accommodations listed were: multi sensory approach to learning, small group instruction, 1:1 reinforcement of skills as needed, secure attention before speaking, provide sensory input to gain attention (deep pressure, visual cues, room environment) give visual support along with verbal directions, preferential seating for eye contact, identify steps necessary to complete a task, sequential steps for tasks done orally, visually and the first few with Student, utilize a vertical work surface where appropriate, structured environment, provide frequent natural breaks when he is in a situation where he has to sit for a long time, consistent schedule and clear routines with visual reminders available (i.e. listed on board), alphabet/number samples at desk, keep worksheets and visual learning clear of distractions, cues for letter/number formation, sensory breaks after writing, many opportunities to use manipulatives, communication notebook, plenty of time to respond and complete work, frequent check-in for accurate comprehension of directions, provide verbal information in small chunks, brainstorming and graphic organizers, monitor for listener overload, give time for settling down after transitions, encourage Student to ask for help in a productive way, cut down of lengthy assignments, decrease amount of copying work , set up papers with margins, focus correction areas, numbered, decrease spelling and other homework, oral/untimed tests, scribe for writing responses to tests.
Both Parties were represented by Counsel. Parent’s Advocate was also present at the meeting.
A Show Cause order was sent to the Parties on April 6, 2000. The Show Cause was extended by request of Parent’s Counsel on June 5, 2000 and was objected to at that time. The matter was reopened to allow Parent’s to provide a list of remaining issues in dispute and the remedy sought at hearing. The BSEA received this list on July 27, 2001 and scheduled an evidentiary prehearing for August 31, 2000. This was continued at the request of Parent’s Counsel to allow additional time (September 1, 2000) to respond to discovery. Easton’s motion to compel discovery was granted on September 15, 2000. Extensions were granted to Parent’s Counsel on September 29, 2000, November 10, 2000 and December 7, 2000. Discovery was completed on December 11, 2000.
On December 7, 2000 Parent moved to strike the results of MCAS testing alleging that because modifications were used Student’s passing marks were unreliable ( see also Efferen). The motion was Denied on December 8, 2000. MCAS testing and Ms. Efferen’s and Ms. Axelod’s testimony regarding the tests reliability have been considered.
The nurses log for the 2000-2001 SY and the communication log corroborates that Student went to the nurse on October 18, 31, November 9, 20, and December 14, 2000, Student went to the nurse’s office for treatment of a headache. He also went to the nurse during the Science block on December 12, 2000 for treatment for a cold sore. There was also a nurses’ visit and dismissal due to a bleeding scalp on October 30, 2000 at mid day and a dismissal at 9:15 due to a loose lower molar (J50). There were also two visits in early September 2000 that occurred during that time block (J49). Mrs. Siegel noted that the trips generally occur in the early afternoon when Student is not with peers, and she has begun asking him around that time to get up and take breaks, run an errand. This has reduced his trips to the nurses office ( Siegel, see J 50)
On Friday Student receives 1:1 counseling with Ms. Silverman after recess and then goes into the resource room (J40, Silverman)
Ms. Axelrod talked to the resource room staff about the need to increase Student’s independence and reduce adult feedback and gave suggestions about how to do this.
Ms. Axelrod also noted that the resource room staff were following through on her suggestions to increase Student’s independence.
Parent’s Counsel did on November 6, 2000, inform School Counsel that Ms. Efferen would be conducting the evaluation and would have it ready by the discovery deadline of November 10, 2000 so that it could be considered at hearing. On November 13, 2000, Parent objected to School’s motion to postpone the hearing to consider Ms. Efferen’s evaluation at a TEAM meeting because the evaluation was prepared and provided to the District for the purposes of hearing; see Parent’s November 13, 2000 Opposition.
The school speech/language pathologist administered the CELF-3 during the 3 rd grade reevaluation; however, the testing does not clearly specify whether this subtest was given and only percentile scores were given on the testing. Therefore a comparison could not be done.
Ms. Efferen did not know at the time of her evaluation that Student did know how to use “base” words but was not familiar with the term “root” word.
Student did sit in the center of the room and did interact with two groups of Students in 4 th grade when Student was transitioned into Ms. Siegel’s class in late April 2000. However, due to the lateness of the signed agreement, the lateness of the year and Student’s trouble with transitions, Student’s schedule remained the same except for placement in Ms. Siegel’s room and as such he was not scheduled to be with his 4 th grade peers. This decision was done by TEAM process with Participation of the Parent and the Parent’s Advocate and Attorney. The Parents accepted the IEP.
The TOPPS outreach program at LCDC in Framingham is one such facility that can conduct an observation and make such modification recommendations. Easton is not restricted to this facility but the observer must have expertise in reducing auditory distractions.
This procedural violation was harmless error because Parent’s rejected the IEP and as such, Student was not given an extended day.
The nine hours is calculated at 15 minutes per week of consultation owed to Mr. Chase for training and monitoring during the 36 week school year.
The choice of a consultant is the schools. Easton has designated Ms. Axelrod as their consultant.
Having found that Student’s IEP with educational and AT consultation Easton’s program can maximize Student’s educational development in the least restrictive environment, I need go no further. However, even if the record had showed that Student required a private day placement, a program that exclusively services students with decoding deficits or language-based learning disabilities or a program that has too many transitions would not provide a FAPE for Student.