COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re: Gill-Montague Regional School District

BSEA # 01-1222

DECISION

This decision is issued pursuant to 20 USC 1400 et seq . (Individuals with Disabilities Education Act), 29 USC 794 (Section 504 of the Rehabilitation Act), MGL chs. 30A (state administrative procedure act) and 71B (state special education law), and the regulations promulgated under said statutes.

A hearing was held on April 2, 2001 in Springfield, MA, and on April 9 and 13, 2001 and May 3, 2001 in Worcester, MA, before William Crane, Hearing Officer. Those present for all or part of the proceedings were:

Student’s Father

Student’s Mother

Marilyn Schmidt Attorney for Student

Buffy Dewey Advocate for Student

Peter Smith Attorney for Gill-Montague Regional School District (RSD)

Stanley Dobosz Administrator of Special Education, Gill-Montague RSD

Cheryl Muzio Clinical Psychologist

Barbara Lockhart Teacher, Eagle Mountain School

Michelle Hazlett Teacher, Gill-Montague RSD

Valerie Townes Speech/Language Pathologist, Gill-Montague RSD

Deborah Gerry Special Education Teacher, Gill-Montague RSD

Annmarie Hallowell Special Education Teacher, Gill-Montague RSD

Michele Gregory Special Education Teacher, Gill-Montague RSD

Victoria Palmer School Psychologist, Gill-Montague RSD

The official record of the hearing consists of documents submitted by the Parents/Student and marked as exhibits 1 through 15 (hereafter, Exhibit P-1, etc.); documents submitted by the Gill-Montague Regional School District (hereafter, Gill-Montague) and marked as exhibits 1 through 60 (hereafter, Exhibit S-1, etc.); documents submitted jointly by the parties on July 30 and August 1, 2001 and marked as exhibits 1 and 2 (hereafter, Exhibits J-1 and J-2) and approximately four days of recorded oral testimony and argument. As agreed by the parties, written closing arguments were due on August 6, 2001, and the record closed on that date.

ISSUES PRESENTED

Is the IEP for the period 4/12/00 to 4/11/01¹ proposed for Student by Gill-Montague reasonably calculated to assure his maximum possible educational development in the least restrictive environment consistent with that goal? If not, does Student’s program at the Eagle Mountain School (where Parents have unilaterally placed Student) meet the federal standard of an appropriate educational placement and if so, are Parents entitled to reimbursement for expenses associated with this placement?

PROFILE AND HISTORY

Student is described as a basically happy, physically healthy ten-year-old boy who sees himself as socially and academically capable and enjoys going to school. Cognitive testing indicates average to low-average intelligence. Student has strengths in the areas of language (both expressive and receptive) with meaningful, familiar subjects.²

Student also has significant learning deficits regarding reading and written expression, and has significant weakness in mathematics. He has a marked gap between ability and achievement in these areas.³

During kindergarten, Student’s father (hereafter, Father) noticed his son’s first signs of a learning disability. Parents placed their son in parochial school for kindergarten and 1 st grade, but because they believed that he was falling behind, they then placed their son at Eagle Mountain School (a private day school) for the summer following 1 st grade. The Parents continued to place their son at Eagle Mountain School for 2 nd , 3 rd and 4 th grade (4 th grade was the 2000-2001 school year).⁴

Student was first referred for special education support for reading and writing at the end of his kindergarten year; and in January of his 1 st grade, he began receiving special education services in these areas at the Montague Center School (part of Gill-Montague) twice per week for thirty minute sessions. At the request of Parents, these services were put on hold during his 2 nd grade because of the concern that Student may be overwhelmed managing both his program at Eagle Mountain and his additional services at the Montague Center School. No further special education services have been provided by Gill-Montague.⁵

STATEMENT OF THE EVIDENCE

Father testified that presently at Eagle Mountain School, his son’s self-esteem is excellent, he enjoys going to school, and he is learning how to read and write. He noted that he and his wife drive their son to Eagle Mountain School each day, which is ten miles from their home. He noted that neither his son nor his family have received counseling.

Father testified that at Eagle Mountain School, his son has been involved in several behavioral incidents (where his son has lost control) but has not been suspended. Father expressed concern that if his son were to attend school at Gill-Montague, his son’s behavior would result in suspension. He further expressed concern regarding the extent of the pull-out services proposed by Gill-Montague, explaining that he believed this would be detrimental to his son’s self-esteem. He noted that he had rejected the most recent IEPs because of the large amount of pull-out services and because of his concern regarding the discipline procedures that would be used.

Annmarie Hallowell testified that she is in her 16 th year as a special education teacher employed by Gill-Montague and is certified as a teacher of school age children in kindergarten through 8 th grade, with moderate special needs. She noted her continuing professional education, including certification at Level I in the Wilson Reading Program and in the process of completing her certification at Level II in the Wilson Reading Program.

Ms. Hallowell testified that currently she is working with seventeen 4 th grade special needs children and three 5 th grade special needs children at Gill-Montague; her responsibilities include teaching within the inclusion setting, working with children during pull-out services and consultation to the regular education staff. She explained that she is the liaison for Student’s IEP, with responsibility to oversee and coordinate his services.⁶

Ms. Hallowell testified regarding Student’s most recently proposed IEP for the period 4/12/00 to 4/11/01 (and amended 9/20/00), explaining each part of the service delivery grid contained within the IEP. Gill-Montague’s most recently proposed IEP, as explained by Ms. Hallowell, provides for pull-put special education services as follows:

· decoding/encoding by a special education teacher (Ms. Hallowell) using the Wilson Reading Program for 45 minutes, 5 times per week with no more than three children (including Student);

· 1:1 occupational therapy by a occupational therapist (Ms. Porter who is a registered occupational therapist) for 30 minutes, 2 times per week;

· 1:1 speech/language therapy by a licensed, certified speech/language therapist (Valerie Townes) for 30 minutes, 2 times per week;

· vocabulary instruction from a special education teacher (Ms. Hallowell) for 30 minutes, 3 times per week, including pre-teaching vocabulary that would be used in Student’s inclusion classes.

This IEP further calls for inclusion special education services as follows:

· mathematics instruction by regular and special education staff for 45 minutes, 5 times per week in a class of twenty children (the special education paraprofessional sometimes assists with the entire class and at other times works with a subgroup of children);

· reading comprehension class by regular and special education staff for 45 minutes, 4 times per week in a class of twenty children (a special education teacher would be working with Student either alone or with a small group of children);

· science/social studies instruction by regular and special education staff for 45 minutes, 4 times per week with twenty children (special education staff does not work separately with special needs children, but instead she and the regular education teacher work with four cooperative groups of five children each);

· written language instruction by regular and special education staff for 45 minutes, 4 times per week in a class of twenty children;

· social skills instruction by psychology staff (Kevin White) for 30 minutes, 2 times per week (teacher uses problem-solving techniques to teach social skills to regular and special needs children).

This IEP further calls for consultation special education services as follows:

· education consultation by a special education teacher (by Ms. Hallowell) to other teachers and staff for 30 minutes per week;

· occupational consultation by an occupational therapist (Ms. Porter who is a registered occupational therapist) to teachers and staff for 15 minutes per week;

· psychological consultation by psychology staff (Kevin White who is certified as a guidance counselor) for 30 minutes per week;

· speech/language consultation by the speech/language pathologist (Valerie Townes who is a certified and licensed as a speech/language pathologist) to teachers and staff for 30 minutes per week.⁷

Ms. Hallowell further testified with respect to various parts of Student’s instruction pursuant to this IEP. She explained that the reading program would use the Wilson Reading Program, and noted that the Lindamood Bell Program (used at Eagle Mountain) addresses phonemic awareness focusing on auditory discrimination while the Wilson Program goes beyond the Lindamood Bell Program by utilizing sounds and symbols for decoding and encoding. The Wilson Program is a structured, sequential multi-sensory reading program. She also noted that the reading program focuses on developing comprehension, utilizing the Story Grammar Marker and graphic organizers.⁸

Ms. Hallowell testified that occupational therapy at Gill-Montague would work on Student’s cursive handwriting and keyboarding, with carry over of these skills into his classes.

Ms. Hallowell further testified regarding the transition plan (to help Student transition from Eagle Mountain to Gill-Montague) and the discipline policy that were included as part of the most recent amendments to the IEP. She explained that these were developed specifically to address Parents’ concerns in these areas.

Ms. Hallowell testified that classroom strategies will include all of the recommended modifications and accommodations included in Student’s most recent IEP. These strategies include:

· Assistance with planning his day and organizing his assignments using a classroom planning sheet each morning;

· Use of a multi-sensory approach to teaching in order to allow Student to integrate new information and concepts;

· Lessons modified to allow Student to complete his work thoroughly and adequately;

· Participation in cooperative learning groups when appropriate;

· Checking with Student frequently for comprehension of directions;

· Pre-reading target vocabulary words; preview visual information for class lectures and assignments;

· Use of a class outline for verbal presentations;

· Use of a short, simple checklist for tasks containing more than two steps in order to help guide Student towards completion of the tasks;

· Use of semantic organizers to facilitate processing and linking of details with the main idea;

· Use of semantic links to help facilitate Student’s ability to recall details.

Ms. Hallowell testified that Student’s program at Gill-Montague would include an extended year component of tutoring for one hour per day for twenty-five days and group academic activities for three hours per day, also for twenty-five days. She also noted that extra help would be available to Student in the afternoons after school, Monday through Thursday, although no decision has been made as to what particular additional assistance would actually be provided to Student.⁹

Ms. Hallowell testified that she typically works with children with Student’s deficits; she believes that his deficits are not significantly different than the other four special needs children attending the Gill-Montague 4 th grade. She noted that within the 4 th grade class at Gill-Montague (within which Student would have been placed) the abilities of the children range from 1 st to 8 th grade in reading, from 2 nd to 6 th grade in math and from the end of 1 st grade to at least the 5 th grade in written language.

Ms. Hallowell testified that during the inclusion classes at Gill-Montague, Student would be taught at the 4 th grade instructional level, utilizing concepts appropriate for 4 th graders during the directed instruction (approximately 20 minutes per class in math, 20 minutes per class in reading comprehension, 10 minutes or more per class in science and social studies and varying amounts in written language). She further noted that this directed instruction occurs in particular at the beginning of each class when the teacher is reviewing previous materials and introducing new materials, as well as closure at the end of the class.

Ms. Hallowell testified that she believes that Student would be able to understand the instruction and concepts used in a typical 4 th grade class. She explained that she based this conclusion on (1) Dr. Muzio’s statement that Student “thinks like a 4 th grader,” (2) standardized testing which indicates average cognitive abilities, (3) listening to Parents discuss Student and, in particular, his interests, and (4) her assumption that Student would be pre-taught vocabulary. She noted that Gill-Montague does not provide a language-based educational program, but rather a program that incorporates language modalities and accommodations such as pre-teaching, graphic organizers, etc.

Ms. Hallowell testified that she has gotten to know Student through her observation of (and briefly meeting with) him at Eagle Mountain in March 2001, through review of his evaluations and other school records and through meetings/discussions with Mother.

She further opined that Student would benefit from attending school with regular education children, specifically through modeling of his peers, by sharing and demonstrating his strengths with other children and through exposure to the expanded curriculum of an integrated educational program.

Ms. Hallowell testified that she visited Eagle Mountain in March 2001 from 8:10 to 10:30 AM, observing Student in his morning meeting, 1:1 reading tutorial and math class; and she spoke briefly with one of Student’s teachers and the Director of Eagle Mountain School. She explained that on the basis of (1) her experience as a special education teacher, (2) what she was able to observe at Eagle Mountain and (3) her knowledge of Student, she concluded that Student seemed very comfortable at Eagle Mountain but should be provided a more challenging and richer educational program. She further explained that at Gill-Montague, his educational program would include the following components not provided at Eagle Mountain: computer instruction, speech/language therapy, social skills instruction, the Wilson Reading Program (or comparable program), after school activities and more extensive science and social studies curriculum.

Ms. Hallowell testified that the small group format of Student’s math class that she observed at Eagle Mountain School allowed the teacher to direct individual questions to Student to determine if he understood the material. She also noted that at Eagle Mountain, Student benefits from the 1:1 reading tutorial and from the closeness of the school; she further explained that Student has a positive sense of self and feels a part of the School.

Michele Hazlett testified that she is currently and has been since 1975 a regular education 4 th grade teacher at Gill-Montague. She noted that she is certified as a regular education teacher, kindergarten through 8 th grade.

Ms. Hazlett testified that Student would have been in her 4 th grade class had he attended public school at Gill-Montague pursuant to its proposed IEP. She explained that there are 20 children in this class (with the addition of Student, there would be 21) with a range of academic grade equivalent skills from 1 st to 8 th grade level (she noted that 11 children are generally at or above grade level, 4 children are on IEPs and 1 child is getting other specialized assistance).

Ms. Hazlett testified that she has never met Student but has read the evaluation reports by staff at Gill-Montague, by evaluators from Mass. General Hospital and by Dr. Muzio.

Ms. Hazlett testified in some detail regarding each component of the academic day in which she would be involved with Student – Brain Gym, Reading Comprehension, Written Language, Read Aloud, Math, Science and Social Studies. She noted that in all of her classes (but, in particular, in social studies and science), she occasionally breaks the children into small groups and utilizes cooperative learning. She also explained the Social Skills group that was offered to Student through the IEP.

With respect to the 4 children in her class on IEPs, Ms. Hazlett testified regarding their growth in writing, reading and math that they have experienced this academic year. She opined that Student would be “comfortable” with these other children academically. She noted, however, that since Student is not used to being in a class of 21 children (including regular education students), it may take some time for him to develop the social skills needed within this academic environment.

Ms. Hazlett testified that she has participated in the development of Gill-Montague’s curriculum and its alignment with the state-mandated curriculum frameworks.¹⁰ She explained that she has reviewed the written curriculum for Eagle Mountain¹¹ and believes that as compared to the written curriculum developed by Gill-Montague, the Eagle Mountain curriculum has limitations – for example, Eagle Mountain’s objectives do not have any significant carry over or flow, they do not include as specific or as complex goals as Gill-Montague, and they reflect somewhat limited ideas which are in isolation rather than related to other topic areas. She further testified that the Eagle Mountain written curriculum regarding math, social studies, science and language arts are all missing one or more strands set forth in the state-mandated curriculum frameworks.

Ms. Hazlett testified that her class utilizes a 4 th grade curriculum, with 4 th grade language and concepts, but with accommodations and modifications (for example, pre-teaching, paraphrasing, etc.) to meet the needs of the individual children. She explained that she does not utilize a language-based curriculum.

Ms. Hazlett testified in response to Ms. Townes’ testimony (Ms. Townes testified that on the basis of the additional information provided through Dr. Muzio and her report, Student should be in the Resource Room for language arts and math, but in Ms. Hazlett’s inclusion class for science and social studies). Ms. Hazlett stated that she does not know Student well enough to have an opinion as to whether he would be better served through the structure proposed in the Gill-Montague’s most recent IEP or as suggested by Ms. Townes, but she would be “satisfied” so long as Student were in the mainstream science and social studies classes where he would be exposed to and be able to learn with regular education children.

Michelle Gregory testified that this is her 4 th year as a special needs teacher at Gill-Montague. She noted that she received a masters degree in special education in 1997, is certified in special education, is certified at level I in the Wilson Reading program and is in the process of completing her certification at level II in the Wilson Reading program.

Ms. Gregory testified that she first knew Student as a 1 st grader from January to May 1998 when she provided him with language arts support for 30 minutes twice a week with 2 or 3 other children. She explained that when Student began attending Eagle Mountain, parents asked that Ms. Gregory’s services be discontinued. She explained that she also evaluated Student in December 1998¹² and observed him (and spoke with his teacher) during 1 st grade.

Ms. Gregory testified that on the basis of her observations of Student and her testing of him, she believes that he made progress during that time – for example, he learned to write a simple, three-sentence story with a beginning, middle and end.

Ms. Gregory testified that she observed Student at Eagle Mountain in May 1999. She noted her concern that Student was not being sufficiently challenged at Eagle Mountain.

As part of Ms. Gregory’s educational evaluation (11/23/98, 12/1/98) of Student, she administered a set of tests from the Woodcock Johnson Psycho-Educational Battery-Revised Tests of Achievement, as well as the Key Math-Revised test. The evaluation found that Student was working in the average range in math for his grade level of 2.3, based on his scores on the Woodcock Johnson mathematics section. She noted that his total test grade equivalent was 2.0 although she opined that had Student been more cooperative during the test, his test scores would have been higher. The educational evaluation further found that Student was spelling at a beginning phonetic stage, and he did not demonstrate knowledge of writing mechanics such as spacing, punctuation and capitalization. The report recommended continued special education services to address his writing needs. The report further recommended educational support at home.¹³

Victoria Palmer testified that she has been the school psychologist at Gill-Montague since 1997. She noted that she has a masters degree in counseling psychology (1985), is certified as a school psychologist and has completed approximately 400 psychological evaluations.

Ms. Palmer testified that she is familiar with Student through her psychological evaluation of him (completed in January 1999)¹⁴ , her review of other evaluations, her attendance as part of the Team that amended the IEP in September 2000, and her observation of Student at Eagle Mountain.

Ms. Palmer testified that it is important for purposes of his educational development and success as an adult that Student gain a better appreciation of both his strengths and weaknesses.

She testified that Student’s profile is not unlike other children who are served in the inclusion model with supports, and that many children have co-morbid deficits.

Ms. Palmer testified that she has the following concerns regarding Dr. Muzio’s report:

· Dr. Muzio’s diagnostic impressions are not appropriate to include in the report (at least in the manner that they are stated in the report),

· all children should be served in the least restrictive alternative, and Student could be served in a setting less restrictive than Eagle Mountain, and

· his scores on the WIAT do not reflect significant improvement in comparison to previous Gill-Montague test scores.

Ms. Palmer testified that generally it is not appropriate to utilize subtest scores from a standardized test without using the test in its entirety. In particular, with respect to Exhibit P-9, last page, she noted concerns with respect to use of the subtest scores of the Woodcock Reading Mastery test.

Ms. Palmer testified that she observed Student for 45 minutes during individual 1:1 tutoring at Eagle Mountain School in December 1998.

Ms. Palmer testified that Dr. Muzio’s evaluation showed that on the WIAT test, he scored in the average range on a subtest measuring listening comprehension, and this therefore suggests that this area can be considered a relative strength for Student. She explained that the listening comprehension subtest involves a series of questions that are listened to and then are to be responded to with accuracy. She further explained, however, that an average score on this subtest may be consistent with an inability to understand grade-level language and concepts (without sufficient support, including modifications and accommodations) because of the difference between the subtest and the practical application of listening skills. She explained that because of his other deficits as reported by Dr. Muzio, Student presents a more complicated picture (regarding his ability to understand 4 th grade language and concepts) than is reflected in the listening comprehension subtest alone.

As part of Ms. Palmer’s psychological evaluation (12/17/98, 1/4/99, 1/7/99), Student was administered the Wechsler Intelligence Scale for Children-III (WISC-III), the Bender-Gestalt Test of Visual Motor Integration, Thematic Apperception Test-select cards, Children’s Apperception Test and Projective Drawings. The evaluation found that Student received a full-scale score of 85 on the WISC-III (“solidly within the low average range”), although Ms. Palmer noted that his potential is likely somewhat higher given his weak motivation during the test. The evaluation concluded that Student has strengths in the areas of long- and short-term memory, use of reasoning and judgment, fine motor skills, visual motor skills and in retrieval of factual information based on prior learning experiences. Weaknesses were noted in the areas of sustained attention over time, willingness to take risks, ability to screen out external and internal stimuli and in abstract conceptualizations. There were also indicators of feelings of helplessness with regard to his identification of himself as a student. In light of these findings, the evaluation recommended continued assistance in special education. Instruction should contain a multi-sensory approach with strong emphasis on visual cueing and prompting, phonemic awareness and sound/symbol relationships/connections.¹⁵

Valerie Townes testified that she is currently and has been for the past 15 years a speech/language pathologist at Gill-Montague, and prior to this employment, she was a speech/language pathologist at the Franklin Medical Center for 7 years. She explained that she has a masters degree in speech/language pathology, is certified as a speech/language pathologist, and is certified as a teacher for speech, hearing and language disorders.¹⁶

Ms. Townes testified that she is familiar with Student through reading the evaluations performed by Gill-Montague, Mass. General Hospital and Dr. Muzio, through testimony at this Hearing and through an observation of Student at Eagle Mountain School.

Ms. Townes testified that pursuant to Gill-Montague’s most recently proposed IEP, she would have the following responsibilities:

· She would provide speech/language consultation for 30 minutes once per week, principally to the regular education teacher (Ms. Hazlett) to seek to ensure carry over of speech/language skills.

· She would provide direct speech/language services to Student (in a pull-out model) for 30 minutes twice per week. Ms. Townes explained that these services would initially be given on a 1:1 basis until she was able to determine better his needs and then the services would be continued either on a 1:1 basis or with a group of one or two other children.

· Ms. Townes would provide co-teaching of the inclusion written language class for 45 minutes twice a week.

Ms. Townes testified that the inclusion writing class is structured, and includes multi-sensory and sequential teaching. She explained that writing skills are taught, including editing and punctuating, with the goal of each child becoming an independent writer and being able to successfully complete his/her school writing assignments.

Ms. Townes testified that in the inclusion writing class, she works with four other children who have language deficits that, in her opinion, are similar to Student’s deficits (and that two of the four children are at least as disabled as Student).¹⁷ Ms. Townes explained that she works with these four children not only in the inclusion class but also in pull out services. She testified that all four children have made gains regarding their writing skills during this academic year – for example, learning how to write longer pieces with more complex language.

Ms. Townes testified that during the inclusion writing class, she has not separated out the four special needs children into a separate group, but rather has provided individual assistance as needed to these children and (occasionally) also to the regular education children. She noted that at times the class is broken down into small groups that include both regular education and special needs children.

Ms. Townes testified that it is common for special needs children to have both a reading and writing deficit.

Ms. Townes testified that she visited Eagle Mountain School on March 22, 2001, observing Student in a written language class, an independent study period and a literature class (each class was 45 minutes in length). Ms. Townes was critical of what she found to be insufficient directed teaching and feedback to Student, particularly during the written language class, and she opined that Student is capable of producing more academically than is being asked or expected of him at Eagle Mountain.

She testified that the program proposed for Student at Gill-Montague has a number of advantages over the Eagle Mountain program for Student, including speech/language therapy; occupational therapy; social skills component and availability of counseling; exposure to greater amounts of explicit instruction in the use of language; instruction that would be more intensive, richer and more qualitative; higher expectations for Student and the support and assistance to allow him to meet those expectations; and exposure to typical peers and thereby exposure to typical language, typical language models, and typical content of language.

Ms. Townes testified that at the time that Gill-Montague’s most recent IEP was prepared and then amended (amended most recently in September 2000), she agreed with the services recommended in this IEP. However, she explained that based on Dr. Muzio’s evaluation and report, she would recommend changes in his proposed services at Gill-Montague. She explained that Dr. Muzio found visual-perceptual deficiencies and visual-motor deficiencies which result in compounding Student’s difficulties with written language. She noted that prior to Dr. Muzio’s report, there were conflicting evaluations regarding these deficits.

Ms. Townes testified that as a result of Dr. Muzio’s evaluation, she now believes that the manner in which Student takes in visual information, his difficulty processing information, together with his deficits with fine motor skills, create unusual difficulties for Student in writing activities as well as in math. Consequently, in her opinion, Student should have all of his language arts instruction (including decoding, reading comprehension and fluency, and written expression) as well as math in a pull-out instruction model in the Resource Room. She explained that the Resource Room model would have the advantage of allowing Student to be able to receive this instruction in a small group with more individual attention than in the inclusion class. She noted, however, that she would continue to recommend that Student participate in a science and social studies inclusion class, as described in the IEP.

Barbara Lockhart testified that she is currently (and has been since 1997) a special education teacher at Eagle Mountain School. She explained that she has a BA (1973) and a masters degree in education (1996). She noted that she is a certified regular education teacher, with certification pending as a special education teacher.¹⁸

Ms. Lockhart testified that in addition to her teaching responsibilities at Eagle Mountain School, she has a variety of administrative responsibilities, including supervision of staff, assisting with hiring of staff, writing IEPs, screening prospective students, being in charge of Eagle Mountain School during absences of its Director, and otherwise generally assisting the Director with the operation of the school.

Ms. Lockhart testified that the mission of Eagle Mountain School is to teach reading skills to children who have language disabilities, and all children at the school have a language-based learning disability. Ms. Lockhart testified that there are 15 children in the school (age range of 8 to 14 years), with 7 teachers on staff. Ms. Lockhart testified that Eagle Mountain is not chapter 766-approved by the state Department of Education. She explained that there are 174 or 175 school days in Eagle Mountain’s school year. She also noted that Eagle Mountain does not have a physical education teacher, a music teacher, a health teacher or a teacher certified in art.

Ms. Lockhart testified that every teacher at Eagle Mountain School is personally trained and is frequently observed (for purposes of supervision) by the Director of the school. Ms. Lockhart explained that prior to Student’s first entering Eagle Mountain, the current curriculum¹⁹ was written with consultation from Paula Wilder (a curriculum specialist) and Cynthia Stowe (consulting school psychologist and writing teacher). She noted, however, that on a daily basis she (as the social studies teacher) weaves into the curriculum the requirements from the state Department of Education (DOE) frameworks curriculum. In response to questions on cross-examination regarding separate subparts of the DOE frameworks curriculum, she explained specifically how her social studies curriculum for Student teaches what is expected pursuant to the frameworks curriculum. She also explained how she invents and utilizes hands-on games to help her students understand in a more concrete and effective manner certain concepts such as longitude and latitude. She noted that in other subject areas as well, the curriculum is expanded from what is written to include relevant parts of the DOE curriculum frameworks so that the written curriculum serves as beginning point, with changes and additions made to it. She also noted that the curriculum at the school is continually being revised to reflect the needs of the children currently attending the school.

Ms. Lockhart testified that the Lindamood Bell and Seeing Stars programs are used for Student’s reading tutorial; manipulatives, graphs and hands-on activities are used to teach math; Cynthia Stowe’s “Let’s Write” program is used to teach writing; books are individually selected by the Director who teaches Student’s literature class; hands-on, experiential activities supplement the reading in the literature class; and mapping, use of globes, translation of historical information into stories and hands-on learning are used to teach social studies.

Ms. Lockhart testified that children are given standardized testing when they begin at Eagle Mountain School, and standardized testing is repeated in May of each year in order to help the teachers determine progress and what topics or areas should be addressed for each child. She explained that worksheets are used but no tests or quizzes are given. She explained that because of the small size of the school and the high teacher-to-child ratio, the teachers have sufficient contact with each child to know how each child is progressing on an on-going basis without the use of tests or quizzes.

Ms. Lockhart testified that the only class in which she has regularly taught Student is social studies (which she has taught Student since January 1998) but she has also gotten to know Student through substitute teaching him in math, literature, writing and reading. She explained Student’s daily schedule as follows:

· 8:15 to 8:30 AM : morning meeting with all students and teachers during which the students are encouraged to share something interesting or important to them, and any administrative announcements are made;

· 8:30 to 9:15 AM : reading tutorial (Student is taught individually), during which time the teacher (Amy Burlingame) addresses reading, spelling, handwriting, dictionary skills, and “Brain Gym;”

· 9:15 to 10:00 AM : math class (for Student and two other children) during which time the teacher (Laura Stamas) works on adding, subtracting, times tables, beginning-level division, simple word problems, graphs; hands-on teaching tools are used, including trips to a local bank in order to perform banking activities;

· 10:00 to 10:15 AM : break, including snack and an opportunity to go outside;

· 10:20 to 11:05 AM : writing class (for Student and two other children) during which time the teacher (Nancy Dailey) begins with a list of words, then a grammar exercise, followed by a writing activity (for example, a poem or letter) that is developed from the list of words;

· 11:05 to 11:50 AM : independent time (for Student and two other children) when the teacher (Kimberly Thomas) begins with ten minutes of silent reading and then gives the children the opportunity to work on keyboarding, a homework assignment or other project;

· 11:50 AM to 12:35 PM : literature (for Student and two other children) during which the teacher (Hedy Christenson) reads aloud and involves the children in experiential learning regarding topics that come up during the reading;

· 12:35 to 12:50 PM : lunch;

· 12:50 to 1:20 PM : break, with opportunity to go outside if a teacher is available;

· 1:20 to 1:45 PM : reading aloud by a teacher to all 15 children in the school;

· 1:45 to 2:45 PM on Monday, Thursday and Friday : social studies or science (on alternate days), each with a group of eight children (including Student) and two teachers (Barbara Lockhart and Amy Burlingame for social studies and Hedy Christenson and Laura Stamas for science); the eight children are usually broken out into two groups of four, with a single teacher;

· 1:45 to 2:45 PM on Tuesday : art class for all fifteen children;

· 1:45 to 2:45 PM on Wednesday : physical education for all fifteen children;

· 2:45 PM : school day ends.

Ms. Lockhart testified that in his academic classes, Student is grouped with other children, and continually re-grouped as needed, in order that a sub-group of three or four children have similar instructional needs. She further noted, for example, that even the small groups of three children for several courses (math, writing, literature) are re-grouped depending on the subject being taught so that there is greater consistency of the children within the group, allowing for appropriate instructional level for that particular subject.

Ms. Lockhart testified that, in her opinion, the close supervision of Student through 1:1 reading tutorial and very small classes in other subjects is critical to his continuing to make gains since this level of support and supervision gives him the individual attention needed and helps ensure that he is sufficiently supported so that he will take risks in class by participating and otherwise remaining engaged in the academic work. She believes that in a larger school setting, he may slip back into a role of being removed from, rather than engaged in, the learning process.

Ms. Lockhart testified that a strength of Eagle Mountain is that Student is able to work at his own instructional level, commensurate with his skill and cognitive levels. She explained that, as a result, Student experiences success, so that even though Student’s progress has been slow, he has taken a great deal of pride in his accomplishments and he continues to work hard and make further progress without any negative feelings regarding his academic progress and abilities.

Ms. Lockhart testified that beginning with his first year at Eagle Mountain, Student has seemed comfortable at the school, has gotten along well with his peers and teachers, has had a good sense of what he needs to do to make gains academically, and has been a diligent and conscientious worker. She also noted, however, that occasionally he has needed teachers or staff to be firm with him — Student has occasionally become verbally and physically aggressive with his peers and has attempted to be too much of a “boss” with others.

Ms. Lockhart testified that although counseling has never been provided to Student, she has consulted with the Eagle Mountain consulting school psychologist regarding how to maintain Student’s self-esteem and how to work with Student when he acts too much as the “boss.” She further noted that Eagle Mountain has not provided Student with speech/language services or occupational therapy services.

Ms. Lockhart testified that Student makes gains at a slow pace and, within certain areas, he has had difficulty and not made progress. She explained further, however, that in her opinion Student overall has made significant progress at Eagle Mountain School. She noted, for example, that he has made significant gains in his ability to write (he is now able to write simple sentences and is beginning to be able to write a five-sentence paragraph); he has improved his phonemic awareness as reflected in the Lindamood Auditory Conceptualization Test which most recently shows no areas of weakness; he has made noteworthy gains in becoming a reader (he is now able to read aloud); he has made progress in spelling as well as his vocabulary; he has made slow progress in dictionary skills (he is at the beginning level in this area); he has made very slow progress in handwriting; he has made progress in math and understands money; he has shown gains in science but he fell back in social studies, as reflected in his standardized testing; and he has continued to show weakness in reading decoding and fluency although he has shown gains in the Gray Oral Reading Test comprehension subtest which measures rate and accuracy of comprehension.²⁰

Ms. Lockhart testified that near the end of last academic year, Student’s teachers began giving him homework (the school waits until a child has progressed to the point where he/she is ready to do homework), and Student has responded by doing his homework in a responsible and conscientious manner. She also noted that Eagle Mountain will soon start Student on a visualizing and verbalizing program which staff hope will help address Student’s weakness in reading comprehension. Ms. Lockhart opined that it is the severity of Student’s disability that limits him so that he is able to make only slow (although steady) gains in some areas and have even greater difficulty in other areas. Ms. Lockhart believes that Student falls within the group of 25% most disabled children currently attending Eagle Mountain School.

Ms. Lockhart testified that because of the severity of his disabilities, she does not expect that Student will be able to transition from Eagle Mountain to a mainstream school, but she believes that he can continue to make slow, steady progress generally and, in particular, can become a better reader and writer which will become the foundation of further learning.

Cheryl Muzio testified that she holds a masters degree in education (counseling, 1978) and a PsyD degree in clinical psychology (1996). Since 1981, she has been in private practice, conducting psychological assessments and providing psychotherapy to adults, adolescents and children; since 1998, she has also been a school psychologist for the Sanderson Academy in Ashfield, MA, three school days per week, doing diagnostic evaluations, consulting with teachers, and observing classroom settings; and from 1997-1998 she was a staff psychologist at Franklin Clinical Associates. Dr. Muzio testified that she has done approximately a hundred observations of children within the classroom, and has completed several hundred diagnostic evaluations of children.²¹

Dr. Muzio testified that she reviewed Student’s educational records (including the psychological and other assessments, and the most recent IEPs), interviewed Student’s parents, observed Student in his program at Eagle Mountain School (spending 2 ½ hours at the School), observed the proposed program offered by Gill-Montague (spending 2 ½ hours there), interviewed teachers at both places, interviewed and observed Student, and conducted a number of standardized tests as part of her psychological evaluation of Student. She noted that her cognitive testing of Student was done on 12/18/00 and her achievement testing of Student was done on 3/12/01.²²

Dr. Muzio testified and her report explained that she administered to Student the Wechsler Intelligence Scale for Children – Third Edition (WISC-III). She found that this assessment indicates that Student is functioning within the lower end of the average range in overall cognitive ability, with a Full Scale IQ score of 90 (Verbal IQ of 99 and Performance IQ of 82). She also administered the Wechsler Individual Achievement Teat (WIAT) Listening Comprehension subtest and Oral Expression subtest. Dr. Muzio concluded that Student is cognitively in the mid-average ability level.²³

Dr. Muzio testified that she administered the Wechsler Individual Achievement Teat (WIAT) in order to assess Student’s current level of academic functioning in specific areas. The WIAT scores were as follows:

Subtest/Composite | Standard Score | Percentile | Grade Equivalent

Reading : 80 9 2:5

Basic Reading 77 6 2:0

Reading Comprehension 90 25 3:3

Mathematics : 74 4 2:7

Mathematics Reasoning 85 16 2:9

Numerical Operations 71 3 2:0

Writing : 73 4 2:0

Spelling 76 5 2:3

Written Expression 81 10 1:2

Language : 88 33 2:8

Listening Comprehension 100 50 4:4

Oral Expression 82 10 1:2

Total Composite : 78 77 2:3

Dr. Muzio’s report further reflects that on the Test of Word Reading Efficiency, Student placed in the 10 th percentile in relation to his age peers (that is, he is better than only 10% of his peers) regarding Total Word Efficiency, and he placed in the 7 th percentile in relation to his age peers regarding Phonemic Decoding Efficiency.²⁴ She further explained that with respect to his overall math score, as reflected in his Mathematics Composite score, he placed in the 4 th percentile (that is, he is better than only 4% of his age peers); and with respect to written expression, as reflected in his Writing Composite score, he similarly placed in the 4 th percentile. She further noted that areas of most severe deficits include written and oral expression (both are at the 1.2 grade level on the WIAT); these impact on his learning – for example, severely limiting his ability to take notes in class, as well as being able to write a paragraph.

Dr. Muzio testified and her report indicated that there are highly significant differences between actual and predicted achievement in Basic Reading, Mathematics Composite, Numerical Operations, Writing Composite and Spelling, indicating “highly unusual and specific weaknesses” in these areas. These discrepancies appear to be related to a disability in the basic psychological processes of auditory short-term memory, auditory discrimination, phonemic awareness/auditory analysis as well as visual processing. Dr. Muzio concluded that Student has co-morbid Reading Disorder, Mathematics Disorder and Disorder of Written Expression, leaving very little as areas of strength for Student.²⁵ She explained how even basic tasks are very difficult for him – for example, even with a simple task such as near-point, far-point copying, he would have difficulty reading something, comprehending it, and then putting it into written form.

Dr. Muzio testified that Student’s cognitive level is at the 4 th grade; he thinks like a 4 th grade child (for example, he can think about 4 th grade level ideas). Therefore, she explained, he is appropriately in a 4 th grade class, but academics must be taught at his instructional/language level, which is significantly below what is presented in a typical 4 th grade classroom because if he cannot understand the material, he cannot learn it.

Dr. Muzio testified that if a child only has a reading disability, a 4 th grade curriculum can be modified a so that the child can make effective progress. But, Dr. Muzio testified that because Student has significant global language deficits (including severe deficits in written and oral expression, with only small “islands of competence”), a 4 th grade, mainstream reading class would not meet Student’s needs. She explained that, as a result of the severity of his deficits, he needs all instruction and communication to be at his level in order to gain any significant benefit from the class and make effective progress; and it therefore would not be sufficient to modify or enhance the curriculum through adaptations and modifications such as graphic organizers, pre- and post-teaching, and pull-out special education services that would be taught at his level. In Dr. Muzio’s opinion, Student has only a limited ability to benefit from regular education, even with significant modifications/accommodations and pull-outs.

Rather, Dr. Muzio testified that Student requires a specialized program for persons with severe learning disabilities; Student needs a language-based curriculum – that is, one that is oriented to Student’s individual needs so that all instruction is at his skill level and instructional level, along with assistance assimilating this instruction; the program should include small class size, specialized curriculum, opportunity for individualized instruction and an environment in which the academic and emotional needs of children with severe learning-based disabilities are specifically and consistently addressed. Exhibit P-15, pages 9, 10. She further testified that if Student were to be served within the mainstream environment (which she does not recommend), he should be provided with direct services (small group, 4×30 minutes each) for written language and for math calculation, in addition to what is being proposed by Gill-Montague.

Dr. Muzio testified that the small classes are particularly important for Student since they greatly enhance the likelihood that the instruction will be at Student’s level, as compared to teaching to the middle of a larger group, and the small class also allows for sufficient individual instruction. She explained that ideally a class should not exceed 10 students and that even within this small class size, the children should have similar needs and should be taught using a language-based model; however, she agreed that if all the students were at the same level and the instruction were appropriate, the class size could increase slightly.

Dr. Muzio testified that sufficient individual assistance is critical for Student. She explained that his leaning disability, by definition, results in specialized, individual needs. She noted that if a teacher is familiar with his particular disability and ways of learning, the teacher can be effective in assisting Student. She further noted that especially with new or unfamiliar materials, Student’s needs are met only with individual instruction (or in a very small group of children all of whom are at his level) and she believes that at least half the instruction for Student should be 1:1 even when the instructional material is at his level; when the instruction is not at his level, she opined that no amount of individual instruction can consistently compensate and address satisfactorily his educational needs. She further noted that the teacher needs to be attuned to Student’s learning style and needs, and the teacher should generally be familiar both with learning disabled students and with the subject matter.

Dr. Muzio testified that in February 2001, she observed the Gill-Montague mainstream reading class (taught by Ms. Hazlett) that Student would have attended pursuant to his most recent IEP (see B section of service grid). She noted that there were 18 or 19 children and two teachers in the class, the presentation by the teacher was very competent and was a typical 4 th grade curriculum with typical 4 th grade language used in the instruction. She further noted that the second teacher gave individual instruction to 8 to 10 children for approximately half of the class time. Dr. Muzio testified that this instruction is not appropriate for Student because it is not at his level – for example, the concepts used are too complex, the language used too difficult for him to understand, and the physical requirements for filling out the graphic organizer would be difficult for Student, with the result that the instruction would not meet his educational needs. She further concluded that there was not sufficient individual instruction for Student.

Dr. Muzio testified that this classroom is language-enhanced, but not language based, and that this is not sufficient for Student. She explained that for Student to understand the material and make progress, the class needs to be language based — that is, the instruction needs to utilize language that is at Student’s level and this needs to occur across the curriculum so that the appropriate language is integrated into all of Student’s instruction.

Dr. Muzio testified that in February 2001 she also observed the Gill-Montague mainstream written language class that Student would have attended pursuant to his most recent IEP (see B section of service grid). She noted that in the classroom there were 18 or 19 children and 3 teachers. She explained that in the beginning of the class, there was directed instruction by the teachers, and then the children worked independently, with the teachers giving individual assistance. Dr. Muzio testified that the instruction was at the 4 th grade level, but Student who has very significant deficits in the area of written instruction with the need for very specific instruction in this area (he is at the 1 st grade level regarding written output) would not be able to learn from instruction at this level; rather he would need either a small group that is at his level or individual instruction.

Dr. Muzio testified that with respect to the Resource Room, she believes that there should be no more than 4 or 5 children. She generally believes that when specialized instruction is provided to Student, the class size should not exceed 5 because the time is limited and there needs to be more focused, individual attention in order to be able to supplement effectively what he is occurring in the classroom.

Dr. Muzio testified that she observed Student receiving instruction at Eagle Mountain School in November 2000. She noted that Student and one other child were together in a math class with a teacher, working on graphing. She explained that Student was engaged, hard working and enthusiastic and that he seemed to integrate the instruction, producing a graph as part of the class work. She concluded that the level of instruction was appropriate, and that there was an appropriate amount of individual attention. She explained that his math abilities, particularly his limitations regarding calculation, are very severely impacted by his learning disability; and the math class that she observed met Student’s needs in this area.

Dr. Muzio testified that she also observed Student in an Eagle Mountain language arts class where there were 4 children (including Student) and 1 teacher. She found the instructional level to be appropriate for Student and at his level (with an appropriate technique used to first generate a list and then go beyond that list to write a letter independently), and that the small group gave opportunities for individual instruction, accountability and support. She concluded that he received significant benefit from the class and it would maximize his educational development.

Dr. Muzio testified that although speech/language services and occupational therapy could benefit Student, she does not believe that such services are necessary for Student at Eagle Mountain. She reached this conclusion because, in her opinion, Eagle Mountain provides a comprehensive, integrated language-based program that is meeting Student’s needs without the addition of these specialized services – that is, these services are woven into and made a part of the program without the need for them to be provided separately. She further explained that Student’s speech/language needs are not so much in the area of articulation or fluency (his speech is “fine”), but his needs relate to his use of language, and these needs are being addressed at Eagle Mountain. She also noted that occupational therapy could help address fine motor skills (handwriting), but this is not a critical need for Student at this time, although by 5 th grade, he should be learning keyboarding.

Dr. Muzio was asked to compare her test results (2.9 grade level and 16 th percentile) with math test scores from an educational evaluation in November/December 1998 when he had been found to be working somewhat below his grade level in math reasoning (1.3 grade equivalent and 66 th percentile).²⁶ Dr. Muzio testified that comparing her test results with these prior test results indicated decline with respect to his peers. Dr. Muzio testified that comparing the Speech/Language evaluation in December 1999, Student scored at the 19 th percentile in word attack skills (and 2.1 grade equivalent), while Dr. Muzio’s evaluation showed that his basic reading skills were at the 6 th percentile (and 2.5 grade equivalent).²⁷ Dr. Muzio further compared test scores from a June 1999 neuropsychological evaluation, indicating that Student was at the 1.7 grade equivalent level for reading (no percentage scores were provided by the tester).²⁸ Dr. Muzio testified that, in her opinion, an improvement from 1.7 grade equivalent (in June 1999) to 2.5 grade equivalent (on her testing on 3/12/01) showed progress in reading, although the progress is slow, for this particular Student given the severity of his language deficits. She also testified that using grade equivalent measures is not the best yard stick to measure change, particularly where, as here, different tests are being compared.

Dr. Muzio testified that Student’s site word efficiency²⁹ is better than his phonemic awareness efficiency.³⁰ She explained that the phonemic awareness efficiency is always likely to be a deficit for Student because of his reading disability. She further explained that this indicates that he has been able to develop his vocabulary even as his phonemic efficiency remains very low. She also noted that if one looks at his reading comprehension³¹ , this indicates that he is using different skills to imbue the text with meaning, as compared to his lower basic reading skills.³² As a result, Dr. Muzio believes that Student is gaining reading skills even though the standardized measures will likely continue to evidence a significant reading disability. She testified that over time, with a continuation of his present services, he will likely continue to make slow progress, particularly in those areas that are more integrated (and less isolated) – for example, areas such as reading comprehension and site reading efficiency. She stated that it is unlikely that Student would have made the progress he has made if he were not in a language-based, individually tailored educational program such as Eagle Mountain.

Dr. Muzio testified that, overall, Student is developing well emotionally and socially in the context of a structured and supported environment. She explained that this is attributable to his fitting in well within Eagle Mountain School, with the result that he considers himself not to be different than his peers.³³

Dr. Muzio testified that in the mainstream there would likely be stress on Student because of his significantly different needs, that this stress would likely effect any child’s (including Student’s) self-esteem and self-image. She further noted in her report that given the extent of his learning disabilities, it is likely that he could become emotionally overwhelmed in a less structured environment where he and his peers may identify him as different from his peers. She further testified, however, that his emotional needs could be met in the public school setting if the other children in his class are supportive with good social skills and tolerate differences among their peers; but she also noted that frequent, multiple pull-outs can impact negatively on a child’s self-esteem.³⁴ She explained that currently Student has no need for counseling services although as he moves through school in later years, he will need to develop greater understanding of his limitations.³⁵

Dr. Muzio concluded that, on the whole, the most important ingredients for effective education for Student are that the instruction be at his level, that the class size be sufficiently small and that he receive sufficient opportunity for individual instruction; all three are necessary so that the instruction will be appropriate to Student and effectively address his individual needs. In her opinion, Eagle Mountain is a cohesive instructional environment with language-based instruction which satisfactorily addresses Student’s educational needs in these regards.

A neuropsychological evaluation was preformed by Kaaren Bekken, PhD, neuropsychologist at the Psychology Assessment Center of Massachusetts General Hospital on June 4, 1999. Dr. Bekken concluded that testing indicated Student’s general cognitive level to be in the low average range, but this underestimates a likely average or better potential. The results of the Differential Abilities Scales academic screeners were as follows:
math : grade equivalent 2.6
spelling : grade equivalent 1.5
reading : grade equivalent 1.7.

Dr. Bekken concluded that the evaluation’s academic testing revealed weakness in language-based areas (reading, spelling, written expression), and borderline attention difficulty, but she concluded that Student did not meet criteria for ADHD.

Dr. Bekken’s evaluation recommended:

· Small classroom setting;

· Classroom accommodations appropriate for a child with attention disorders;

· High degree of structure by teachers;

· As he gets older, explicit training in organizational skills (task and assignment breakdown, problem solving, outline construction, strategies for organizing oral materials, note taking, etc.);

· Reading remediation on a daily basis using 1:1 instruction and a multi-sensory, phonics based approach;

· Tutoring to address written language skills;

· Speech therapy to address expressive weakness three times per week;

· Occupational therapy to address visuomotor organization and planning weaknesses once or twice per week.³⁶

A speech language evaluation was done by Elizabeth A. Delnickas, MA, CCC-SLP, Senior Speech-Language Pathologist at the Speech-Language Pathology Department of Massachusetts General Hospital on December 28, 1999 during the middle of Student’s 3 rd grade. The evaluator found that Student had spoken language weaknesses in the areas of active working memory, verbal expression and retrieval, and written language weaknesses for decoding, spelling, oral reading and written narrative skills. The report further noted that despite these difficulties, his reading comprehension skills fell within the low average range, suggesting that Student is able to pull meaning from context in order to aid his comprehension. This was found to be most likely due to Student’s strong processing and underlying spoken language skills.

The evaluation’s recommendations included the following statement:

[I]t is felt that [Student] is currently in a placement that is supporting his spoken and written language needs. He should continue to receive intensive written language remediation on a daily basis in order to strengthen his decoding, encoding, automaticy, reading comprehension and written formulation skills. A consistent multi-sensory instructional approach, such as the Lindamood-Bell Program, should continued [sic] to be used for targeting these skills. . . . [O]rganizational, and lexical retrieval in addition to story formulation skills should be incorporated within his educational plan. Therefore, individual remediation with a speech-language pathologist or written language specialist is recommend at least 1x/week.³⁷

An occupational therapy evaluation was performed by Tricia Cincotta, OTR/L of the Occupational Therapy Services at Massachusetts General Hospital on December 28, 1999 during the middle of 3 rd grade. The evaluator’s impressions were that Student demonstrated difficulties with fundamental visual organizational skills which are necessary for continued development and progress with reading, handwriting, and other school classes. The evaluator found that Student shows significant impairments with visual closure, spatial relations, motor planning, organization and sequencing issues. The evaluator also noted that “[Student] works hard, and is very cooperative even with tasks that he has difficulty with.” And, she concluded: “At this time it is indicated that [Student] continue with an alternative classroom setting which can focus on key areas to allow continue [sic] skill acquisition.”

The recommendations of the evaluation include:

· Continued small, adaptive classroom setting to allow optimal learning setting with more personalized attentions and adaptations of activities;

· 1:1 work with teacher or aide to reinforce and teach organized note taking, sequencing and move towards a wider base of problem solving strategies;

· multi-sensory learning to integrate new information and concepts;

· individualized and in-class occupational therapy to continue development of visual organizational skills;

· use of computer for written homework, test taking and assistance for organizing assignments and directions.³⁸

The “Final Reports” from Eagle Mountain School, dated June 2000, include a description of what has been taught in each of Student’s classes and a brief description of his progress in that class. The “Final Reports” include the following standardized test scores for Student.³⁹

TESTS ADMINISTERED

Chronological Age	7.10	8.9	9.9
TEST	DATE 6/29/98	DATE 5/19/99	DATE 5/18/00	DATE	GRADE
Detroit Tests of Learning Aptitude – 3 9/9/98
Word Opposites	7.9	9.3	9.0		Age Equivalent
	37	63	25		Percentile
2. Peabody Picture Vocabulary Test	8.2				Age Equivalent
	61				Percentile
3. Wide Range Achievement Test. Revised
Reading	1	2	3		Grade Equivalent
	14	32	18		Percentile
Spelling	1	1	2		Grade Equivalent
	13	16	18		Percentile
Arithmetic 9/10/98	2	3	4		Grade Equivalent
	19	19	63		Percentile
4. Woodcock Reading Mastery Test. Revised
Word Attack	1.6	2.4	4.1		Grade Equivalent
	25	27	47		Percentile
5. Gray Oral Reading Test – 3
Passage		<1.9	<1.9		Grade Equivalent
		5	2		Percentile
Comprehension		<1.9	3.1		Grade Equivalent
		5	25		Percentile
6. Lindamood Auditory Conceptualization Test	53/100	94/100	100/100
7. Woodcock-Johnson Tests of Achievement
Writing Fluency 10/8/98	1.5	1.8	3.1		Grade Equivalent
Writing Sample 10/8/98	1.2	2.3	2.4		Grade Equivalent
Science	2.5	4.5	5.2		Grade Equivalent
Social Studies	3.7	4.8	3.7		Grade Equivalent

The flyer describing the Eagle Mountain School explains that the school is an independent day school located in Greenfield, MA, offering a complete curriculum for children ages 7 to 14 who have difficulty with academics but who have average to above average intelligence. The flyer further explains that the school creates a supportive environment that aids the development and growth of each child to his or her potential.⁴⁰

Gill-Montague and Student, through their attorneys, submitted a joint stipulation dated July 31, 2001.
(The stipulation does not necessarily reflect what Hedy Christenson’s testimony would have been had she been a witness in these proceedings. The stipulation was negotiated between Gill-Montague and Student, rather than with Ms. Christenson. Since Gill-Montague and Student have agreed to the stipulation, I accept its provisions to be true for purposes of my resolving the present dispute.)

The stipulation provides the following:

· Eagle Mountain School is a private day school for children with special needs who are 7 to 14 years of age. It is located in Greenfield, MA.

· Hedy Christenson is the founder and Director of Eagle Mountain School.

· Ms. Christenson does not hold a certificate in administration. She is not familiar with the Department of Education’s “Principles of Effective Administration.”

· Ms. Christenson is familiar with Student. She tested him in June and August 1998, May 1999, and May 2000. She also served as Student’s science teacher from 9/98 to 1/99, his writing teacher from 1/99 to 6/99 and his literature verbal expression teacher form 9/00 to 1/01. In addition, she observed Student in all of his classes during the past three school years.

· Ms. Christenson also served as a member of Student’s Team on numerous occasions.

· Student evidences marked weakness in his visual spatial abilities, integrating visual perceptual skills with his fine motor skills, and motor planning.

· Ms. Christenson agrees with the evaluation of Dr. Cheryl Muzio.

· Ms. Christenson agrees that Student has made good progress during the past three years.

· As of January 1999, Eagle Mountain School reported in its mid-term reports that Student was writing short sentences. As of January 2001, “she” [sic] reported that Student’s sentences “remained at a very simple level” and that he evidenced “resistance to writing.”

· On April 12, 2000, Ms. Christenson reported at Student’s Team meeting that Student will push limits and can physically strike out at peers. She also reported that Student was able to form a fairly complete sentence on his own, had not yet started computer keyboarding, and did not have much knowledge of cursive.

· Student has not and does not receive therapy form a speech/language pathologist or occupational therapist at Eagle Mountain School.

· Eagle Mountain School has never written measurable goals, objectives and benchmarks specific to Student. Eagle Mountain School has never written an Individualized Education Plan for Student.

· Ms. Christenson is familiar with the Massachusetts Curriculum Frameworks. Ms. Christenson believes that the fourth-grade curriculum at Eagle Mountain School is consistent with the Curriculum Frameworks.

· The curriculum for Eagle Mountain School is in development and is not reduced to writing.⁴¹

The Parties also filed as a joint exhibit the following decision by a Bureau of Special Education Appeals Hearing Officer: In Re: Greenfield Public Schools , BSEA # 00-1896 (November 2, 2000). In that proceeding, parents sought a determination that Greenfield Public Schools’ IEP does not meet the requisite legal standards and that they should be reimbursed for tuition and other costs associated with the private placement of their son at the Eagle Mountain School. The Hearing Officer concluded that the Greenfield IEP was appropriate and therefore found in favor of the school district. Although not necessary to resolve the matter, the Hearing Officer also found that the Eagle Mountain School program was not individualized for Student, was not reasonably calculated to provide Student with educational benefit and therefore did not meet the federal standard of appropriateness.⁴²

FINDINGS AND CONCLUSIONS

Student is an individual with a disability, falling within the purview of the federal Individuals with Disabilities Education Act⁴³ and state special education law.⁴⁴ As such, he is entitled to a free, appropriate public education which is reasonably calculated to assure his maximum possible educational development in the least restrictive environment consistent with that goal.⁴⁵ Neither his status nor his entitlement is in dispute.

A. Special Education and Related Services Proposed by Gill-Montague within its Most Recent IEP

The first issue is whether the programming and specialized services embodied in Gill-Montague’s most recently proposed IEP⁴⁶ are consistent with this legal standard.

Student has pervasive, multi-faceted disabilities. He has deficits in the basic psychological processes of auditory and visual short-term memory, auditory discrimination, and phonemic awareness/auditory analysis. He also has deficits in visual processing, including visual-perceptual, visual-spatial and visual fine-motor functioning. He has significant weakness in basic reading skills and lexical access (word find). In addition to his substantial deficits regarding language-based tasks (such as basic reading skills and auditory learning), he is deficient in performance-based tasks (such as graphomotor skills). He also has significant weakness in mathematics. He has a marked gap between ability and achievement in these areas.⁴⁷ Neither party has disputed the nature and extent of Student’s disabilities.

The pervasiveness and severity of Student’s disabilities leave little as areas of strength for Student. As a result, even basic tasks are difficult for him. For example, with a task such as near-point, far-point copying, he would have difficulty reading, comprehending, and then putting it into written form.⁴⁸

In contrast to his severe learning disabilities, Student’s cognitive abilities are generally in tact for a 4 th grader (he tests in the lower end of the average range in overall cognitive ability). Because he thinks like a 4 th grade child (for example, he can think about 4 th grade level ideas), he is appropriately in a 4 th grade class for the past academic year.⁴⁹

Gill-Montague has proposed, through its IEP, to serve Student through a range of educational and related services, very extensive modifications and adaptations to enhance the instruction, extended day and year aspects of the program and high quality, experienced teachers who would be working with Student. The related services would include direct and consultation assistance from a speech/language therapist, as well as occupational therapy. Daily decoding/encoding remediation would use a multi-sensory, phonics-based approach, and 1:1 pre-teaching of content based vocabulary and concepts would occur three times each week. Rather than a language- based curriculum, Gill-Montague has proposed a language- enhanced curriculum that would include inclusion classes of twenty children taught at the 4 th grade level. When reviewing old material and introducing new material, the inclusion teachers would be giving directed instruction using words and concepts typical for 4 th grade (the ability of the children in these classes ranges from the 1 st to 8 th grade levels).⁵⁰

Parents, through their expert, Dr. Muzio, take the position that many learning-disabled children can be taught using words and concepts which they do not fully understand if there are sufficient enhancements and additions to the curriculum in order to support the learning process (such as graphic organizers, pre- and post-teaching and additional, individual instruction). That is, Gill-Montague’s approach would be effective for Student but only if his disabilities were less pervasive — for example, if he only had a reading disability.⁵¹

Dr. Muzio’s opinion is that Student’s disabilities are so pervasive, severe and multi-faceted, including significant global language deficits, that he is not able to make effective use of educational services unless those services, including all instruction and communication, are at his level of understanding. Because he does not understand many of the words and concepts that are typically used in a 4 th grade classroom, he cannot learn within a 4 th grade inclusion classroom, regardless of the addition of extensive accommodations and enhancements.⁵²

More specifically, Dr. Muzio recommends that, in order to gain significant benefit from his classes, Student needs an educational program that is individually oriented to Student’s particular skill level across all aspects of the curriculum, together with assistance assimilating this instruction. Also, in order to increase the likelihood that the instruction would consistently be at his level and responsive to his unique needs, Student should only be taught individually or in small classes (not to exceed 10 students), and with new or unfamiliar materials, Student needs individual instruction or in a very small group of children all at his level.⁵³

There is no dispute that what is recommended by Dr. Muzio has not been proposed by Gill-Montague in its IEP.⁵⁴ I therefore turn to the task of evaluating the weight to be ascribed to Dr. Muzio’s recommendations as compared to the countervailing evidence submitted by Gill-Montague.

Dr. Muzio has significant experience as a clinical psychologist evaluating, observing and making recommendations regarding children with disabilities similar to Student. She has worked in a evaluative/consultative capacity for 20 years, and as a school psychologist within a public school setting since 1998. She combines sophistication in testing, with a practical understanding of educational environments. In her testimony regarding the infrequency of her recommending a substantially separate placement for a special needs child, Dr. Muzio was convincing that she understands and values the need to mainstream children into the public school setting whenever possible. She reviewed Student’s educational records (including the past psychological and other assessments, and the most recent IEPs), interviewed Student’s parents, observed Student in his program at Eagle Mountain School (spending 2 ½ hours at the School), observed the proposed program offered by Gill-Montague (spending 2 ½ hours at the program), interviewed teachers at both places, interviewed and observed Student, and conducted a number of standardized tests of Student as part of her psychological evaluation of him.⁵⁵

I find that Dr. Muzio attained a detailed and sophisticated understanding of Student, and that her evaluation and observation of Student were comprehensive and professional. I further find to be credible her recommendations and conclusions that the educational model proposed by Gill-Montague in its most recent IEP (proposing language-enhanced inclusion with modifications/accommodations and pull-out services) does not satisfactorily address Student’s educational needs. However, in order to assess the persuasiveness of Dr. Muzio’s testimony and report, I now turn to the evidence presented by Gill-Montague in support of its proposed IEP and in rebuttal of Dr. Muzio’s recommendations and conclusions.⁵⁶

In support of its proposed educational program, Gill-Montague offered the testimony of four witnesses – Ms. Hallowell (a special education teacher for many years at Gill-Montague), Ms. Hazlett (a Gill-Montague regular education 4 th grade teacher), Ms. Palmer (Gill-Montague’s School Psychologist), Ms. Townes (Gill-Montague’s speech/language pathologist). I will review the testimony of each of these witnesses.⁵⁷

Ms. Hallowell testified that she typically works with children with Student’s deficits, and she believes that his deficits are not significantly different than the other four special needs children attending the Gill-Montague 4 th grade. Ms. Hallowell concluded that Student would be well served within this classroom.

Ms. Hallowell’s conclusions are premised on her opinion that Student would be able to understand words and concepts at the 4 th grade level. Ms. Hallowell based this opinion on the following: (1) Dr. Muzio’s statement that Student “thinks like a 4 th grader” and standardized testing which indicates average cognitive abilities, (2) information gleaned from listening to Parents’ description of Student’s interests, and (3) the assumption that Student would be pre-taught vocabulary under Gill-Montague’s proposed program.⁵⁸

Ms. Hallowell’s rationale is unpersuasive. She first cites to Dr. Muzio’s statement at the Hearing that Student “thinks like a 4 th grader” and the standardized test scores. Dr. Muzio’s point was that Student has relatively average cognitive abilities, that he is therefore able to think about 4 th grade level ideas, and that he is therefore appropriately in a 4 th grade class. But, as Dr. Muzio explained and as the standardized testing conclusively establishes, Student’s language skills are markedly lower than his cognitive ability, and it is the severity and global nature of his learning disabilities that limits his ability to understand 4 th grade instruction, rather than his cognitive abilities which are generally in tact.⁵⁹

Ms. Hallowell further relies on what she has heard from Parents regarding Student and, in particular, their discussion of his interests. In her testimony, Student’s interests were not specified. This unspecified, anecdotal information from Parents provides no basis for a conclusion regarding Student’s abilities to understand language used in the context of a 4 th grade classroom.

Finally, Ms. Hallowell notes that vocabulary would be pre-taught. This would, of course, likely help Student’s comprehension during class. But, it stretches the imagination to conclude that pre-teaching selected vocabulary words can compensate adequately for a general inability to understand the language and concepts routinely used in a 4 th grade classroom.

This is not to criticize Ms. Hallowell and her abilities as a special education teacher. I found Ms. Hallowell’s extensive experience as a special education teacher made her well-suited to explain competently and comprehensively what Gill-Montague proposed to provide Student through its proposed IEP.

However, Ms. Hallowell is a special education teacher who has never taught Student, nor has she evaluated him. She has come to know Student through an observation of Student for several hours at Eagle Mountain, a review of records, attendance at the Hearing in this matter and conversations and meetings with Mother. In light of her testimony regarding Student’s ability to understand 4 th grade instruction and her limited knowledge of Student, I conclude that she is not able to provide reliable expert guidance as to Student’s particular deficits and how they should be met.⁶⁰

The Gill-Montague regular education 4 th grade teacher (Ms. Hazlett) testified in support of Gill-Montague’s proposed IEP. She has extensive experience as a teacher and described in some detail each component of the academic day in which she would be involved with Student had he attended 4 th grade at Gill-Montague.

Ms. Hazlett testified that she did not know Student well enough to have an opinion whether he would be better served by the instructional model proposed by Gill-Montague or a modified version of this model (suggested by Ms. Townes and discussed below) which would place Student in a pull-out class for all language arts classes as well as math. She explained that she has never met Student although she has read the evaluation reports by staff at Gill-Montague, by the evaluators from Mass. General Hospital and by Dr. Muzio.

By her own admission, I find that Ms. Hazlett does not have sufficient knowledge of Student in order to testify persuasively regarding his unique needs and how they should be met. She also does not have sufficient knowledge of special education to testify as an expert regarding these issues.

Gill-Montague’s School Psychologist (Ms. Palmer) testified in support of Gill-Montague’s IEP. She is familiar with Student through her psychological evaluation of Student⁶¹ , her review of other evaluations, her attendance as part of the Team that amended the IEP in September 2000, and her observation of Student at Eagle Mountain.

Ms. Palmer did not testify as to what specifically Student’s educational needs are and how they should be met. Rather, she explained in general terms that Student’s profile is not unlike other children who are served in the inclusion model with supports, and that many of these children have co-morbid deficits, as does Student. She noted that all children should be served in the least restrictive alternative, and concluded that Student could be served in a setting less restrictive than Eagle Mountain.

This kind of general testimony, which did not focus on Student’s unique disabilities, is not a sufficient basis upon which a Hearing Officer may determine Student’s particular special education needs and how they should be met, nor is it persuasive in rebutting the more detailed and comprehensive testimony and report of Parents’ expert, Dr. Muzio. I also note that Ms. Palmer’s direct knowledge of Student is somewhat dated because her testing of him was completed in January 1999 and her observation was in 1998.

The speech/language pathologist at Gill-Montague (Ms. Townes) testified that she is familiar with Student through reading the evaluations (performed by Gill-Montague, Mass. General Hospital and Dr. Muzio), through testimony that she listened to during this Hearing and through an observation of Student at Eagle Mountain School.

Ms. Townes initially testified in support of Student’s being appropriately served through the Gill-Montague IEP. Ms. Townes explained that in a 4 th grade inclusion writing class at Gill-Montague, she works with four other children who have language deficits that, in her opinion, are similar to Student’s deficits and that two of the four children are at least as disabled as Student.⁶² Ms. Townes explained that she works with these four children not only in the inclusion class but also in pull out services. She testified that all four children have made gains regarding their writing skills during this academic year – for example, learning how to write longer pieces with more complex language. If Student had received special education at Gill-Montague in 4 th grade pursuant to the proposed IEP, he would have participated in Ms. Townes’ inclusion writing class.

However, after explaining that this testimony reflected her opinion at the time the IEP was proposed, Ms. Townes further testified that she found Dr. Muzio’s report and testimony persuasive that Student has visual-perceptual deficiencies and visual-motor deficiencies which result in compounding Student’s difficulties with written language. Ms. Townes explained that currently she believes that the manner in which Student takes in visual information, his difficulty processing information, together with his deficits with fine motor skills, create unusual difficulties for Student in writing activities as well as in math.

Ms. Townes’ current opinion is that Student should have all of his language arts instruction (including decoding, reading comprehension and fluency, and written expression) as well as math in a pull-out instruction model in the Resource Room. She explained that the Resource Room model would have the advantage of allowing Student to be able to receive this instruction in a small group with more individual attention than in the inclusion class. She noted, however, that she would continue to recommend that Student participate in a science and social studies inclusion class, as described in the IEP. In other words, Ms. Townes testified that in order to meet Student’s needs, he requires a significantly different service delivery model than what is proposed in Gill-Montague’s most recent IEP.⁶³

A neuropsychological evaluation was preformed by Kaaren Bekken, PhD, neuropsychologist at the Psychology Assessment Center of Massachusetts General Hospital on June 4, 1999.

Dr. Bekken’s evaluation recommended a small classroom setting and reading remediation on a daily basis using 1:1 instruction.⁶⁴ Gill-Montague’s proposed IEP does not satisfy all of these recommendations since much of the instruction would be in a class with 21 children.⁶⁵ I note but do not subscribe substantial weight to this evaluation because it was not subject to cross-examination.

In conclusion, I find that the weight of the testimony argues persuasively that Gill-Montague’s proposed IEP would not likely result in Student’s making significant educational progress. Dr. Muzio’s testimony and evaluation were both credible and persuasive. Her recommendations were not effectively rebutted by Gill-Montague. In fact, the testimony of the Gill-Montague speech/language pathologist lends substantial support to Parents’ position that Gill-Montague’s IEP does not describe an effective educational model for their son.

I find that Student requires (in all aspects of his curriculum) instruction and communication utilizing words and concepts that he understands. (Student does not understand words and concepts used in a typical 4 th grade curriculum.) Also, Student requires small group and individual instruction with other children at his academic level, particularly with respect to all language arts and math instruction, and perhaps in other areas. Gill-Montague’s proposed IEP does not meet these needs.

I conclude that Gill-Montague’s proposed IEP is not reasonably calculated to assure Student’s maximum possible educational development in the least restrictive environment consistent with that goal.

B. Parents’ Right to Reimbursement

1. Legal standard.

In order to receive reimbursement for private school placement, Parents must demonstrate both that Gill-Montague failed to offer an IEP that meets the appropriate legal standard (reasonably calculated to result in maximum feasible educational development), and that their own unilateral placement of the child in private school was proper.⁶⁶ I have found in part A of this Decision that Parents have satisfied the first part of this standard. I now turn to the second part.

In Massachusetts, a public school district must meet the maximum feasible development standard, which is higher than the federal standard of free appropriate public education (FAPE). However, when it is the parents of a child who must make placement after the school district fails to offer an appropriate IEP, the private school placement need not meet Massachusetts’ higher standard (maximum feasible development) in order to obtain reimbursement. Rather, private placement is assessed on the basis of the federal standard.⁶⁷ I therefore now turn to the federal standard.

The US Supreme Court has stated that the federal standard “contemplates personalized instruction with sufficient support services to permit the child to benefit educationally.”⁶⁸ Lower federal courts have further refined their understanding of the requisite benefit to the special needs child, often stating that the benefit must be meaningful or more than minimal.⁶⁹ In addition, federal courts, as well as special education law and regulations, have focused on the importance of addressing the “unique” individual nature of the particular child’s needs for special education and related services.⁷⁰ For purposes of this analysis, I focus my inquiry on whether Eagle Mountain School is providing special education services which meet Student’s unique needs and which result in meaningful benefit to him.

2. Limitations of the Educational Program at Eagle Mountain School .

Gill-Montague’s criticism of Student’s educational program at Eagle Mountain focuses most pointedly on what Gill-Montague perceives as a general failure to offer a professionally sound, personally challenging, and academically rich and comprehensive curriculum for Student. Gill-Montague points that these concerns are specifically illustrated by a number of what it considers to be fatal shortcomings in the Eagle Mountain program being provided Student and are reflected in the inadequate progress made by Student.

More specifically, Gill-Montague argues the following. Eagle Mountain does not have a physical education teacher, a music teacher, a health teacher or a teacher certified in art; very few of its teachers are certified; there is insufficient directed teaching and feedback to Student, particularly during the written language class; the social studies program does too much cycling back through material instead of covering a broader range of subjects; there is inadequate in-service training for Eagle Mountain teachers; the written curriculum does not conform to the Curriculum Frameworks and its objectives are narrow and limited in scope, not allowing for carry-over; Eagle Mountain has never written measurable goals, objectives and benchmarks specific to Student, nor has it written an IEP for him; and Eagle Mountain does not offer many components that are important to Student’s educational development (and that would be provided Student at Gill-Montague), including computer instruction, speech/language therapy, occupational therapy, availability of counseling, social skills instruction, more extensive science and social studies curriculum, after school activities and extended year services. Gill-Montague has presented evidence supporting all of these arguments.⁷¹

Gill-Montague also points to the testimony of its teachers that Student appeared to be too comfortable with the academic program at Eagle Mountain. They concluded that he should be provided a more challenging academic experience. The Gill-Montague staff indicated that at Gill-Montague, support and assistance would be provided to Student to allow him to meet higher expectations than exist at Eagle Mountain. There was also evidence that Student would benefit from attending school with regular education children, specifically through modeling of his peers, by sharing and demonstrating his strengths with other children and through exposure to the expanded curriculum of an integrated educational program.⁷²

Finally, near the end of its comprehensive and articulate, seventy-page closing argument, Gill-Montague emphasizes that Eagle Mountain has failed Student by not giving him the opportunity to learn what is necessary so that he will be able to transition to a less restrictive environment and ultimately receive a high school diploma.⁷³ I will review these various criticisms.

At the outset, I am not persuaded by the evidence that it would be appropriate to fault the Eagle Mountain program for not providing Student with counseling, speech/language or occupational therapy. Each of these services/therapy would arguably provide benefit to Student, and under a maximum feasible benefit standard may be relevant. However, there was persuasive evidence that neither counseling,⁷⁴ speech/language⁷⁵ nor occupational therapy⁷⁶ must be a part of Student’s program at Eagle Mountain in order for him to receive individualized services designed to meet his unique needs and provide him with meaningful benefit. In addition, Parents may not be faulted (for purposes of seeking reimbursement) for choosing a specialized school that includes no regular education peers when the local school district has not offered the requisite services.⁷⁷

However, Gill-Montague’s other criticisms of the Eagle Mountain program are based on credible evidence. In order to assess the relevance and weight to be given to these criticisms, I turn to a discussion of two judicial decisions.

As discussed earlier (part B1 of this Decision), the US Supreme Court in Florence County teaches that one must evaluate the private placement from the perspective of what is reasonable to expect of parents who are in the position of finding, on their own, an alternative to the inadequate educational program offered by the local school district. Thus, for example, state standards regarding certification of teachers or development of an IEP may not be used to determine whether the parents’ placement should be reimbursed.⁷⁸

The case of Doe v. West Boylston School Committee⁷⁹ applied Florence County principles in a case that is comparable to the present dispute. The Hearing Officer had found a number of significant deficiencies with the private program generally (including a lack of adequate supervision of teachers, failure to provide a computer, and lack of a curriculum for the teachers to follow) as well as a failure to address all of the student’s particular needs (for example his attentional deficits).

Notwithstanding these criticisms, however, the federal District Court concluded that the parents should be reimbursed for the private school placement costs because the private school provided the structured and supportive environment that the evaluators recommended for this student (including small student to teacher ratios and remedial interventions that were organized, structured and systematic) and because the educational program specifically and adequately addressed this student’s most significant educational needs.⁸⁰

Similarly in the present controversy, Gill-Montague has made many arguably legitimate criticisms of Eagle Mountain in general and criticisms of Student’s educational program in particular. However, I read Florence County and West Boylston (together with the legal authority described in footnotes 68, 69, 70) to allow Parents reimbursement for a program that has these shortcomings provided that (1) the special education services provided to Student at Eagle Mountain address his unique, individual needs, (2) these services result in meaningful progress, particularly with respect to Student’s most significant needs, and (3) this progress has occurred in a program with the structure and supportive environment recommended by the evaluators.

I now turn to an analysis of these issues.

3. Whether the Education at Eagle Mountain is Tailored to Meet Student’s Individual Needs .

Eagle Mountain School is a small (15 children and 7 teachers), private school in Greenfield, MA. Eagle Mountain is not chapter 766-approved by the state Department of Education and does not attempt to duplicate the breadth of curriculum normally found in a public school – for example, Eagle Mountain does not have a physical education teacher, a music teacher, a health teacher or a teacher certified in art.⁸¹

A particular strength of Eagle Mountain, however, is that a child is able to work at his own instructional level, commensurate with his skill and cognitive levels. This occurs through the appropriate grouping of children, the use of individual instruction, and the very small group instruction in most subject areas. Moreover, all the students at Eagle Mountain are of at least average cognitive ability and have a language-based disability, allowing the school to develop a curriculum that addresses Student’s learning issues consistently across all subject areas.⁸²

The ability of Eagle Mountain to individualize its education to the particular needs of Student is illustrated by the instruction he has received there. Except for those times when it is less important to focus on the individual needs of a language-disabled child (for example, art and physical education), instruction is given either individually (in the reading tutorial) or in small groups of three children (in writing class, independent time and literature) or four children (in social studies and science). Children are grouped (and re-grouped) so that within each classroom, the children are at the same educational level. Consequently, the group instruction is easily geared towards Student’s level of understanding, and sufficient individual attention (even within the small group setting) is provided to Student to ensure that he is engaged and comprehends the lesson.⁸³

The Eagle Mountain teacher (Ms. Lockhart) described how she and other teachers are able to continually monitor the progress of each child through the individual instruction and small group format. Ms. Lockhart also was persuasive in her testimony that the curriculum is continually being revised to reflect the instructional needs and abilities of the particular children in each class.

On the basis of her observation, Dr. Muzio testified persuasively that the small group instruction in language arts allowed for individual instruction, accountability and support. She also found that there was an appropriate amount of individual attention in his math class. Dr. Muzio further found, on the basis of her observation, that the level of math instruction was appropriate to Student, and in the language arts class, she found the instructional level to be appropriate for Student and at his level.

The testimony of the Gill-Montague witnesses in several instances supported the conclusion that the educational program at Eagle Mountain is tailored to address Student’s individual needs. The Gill-Montague special education teacher who observed at Eagle Mountain (Ms. Hallowell) agreed in her testimony that Student benefits from having a daily reading tutorial that was 1:1. The 1:1 format allows the teacher to focus exclusively on Student’s particular needs and learning style.⁸⁴ Similarly, Ms. Hallowell concluded that the small group format of Student’s math class allowed the teacher to direct individual questions to Student to determine if he understood the material.⁸⁵

On the basis of this evidence, I find that the education provided to Student at Eagle Mountain is tailored to his unique, individual needs.⁸⁶

4. Whether Eagle Mountain Provides Sufficient Benefit to Student .

Evaluating Student’s progress at Eagle Mountain (and the benefits he is obtaining from the School) is somewhat hampered by the School’s practice of not giving tests or quizzes and not providing grades to the students. There are, however, a number of other indications of Student’s progress at the School.

I start with the observations and opinions of the Eagle Mountain teacher (Ms. Lockhart) who has taught Student social studies since 1998 and Parents’ expert (Dr. Muzio) who observed and evaluated Student. I note that although Ms. Lockhart has taught Student only social studies as his regular teacher, she has been his substitute teacher in a variety of other subjects and has a good understanding of how Student was doing generally in his academic classes. Ms. Lockhart testified that at Eagle Mountain School, Student has made progress overall and in a number of specific areas. She noted, however, that his gains have been at a slow pace and, within certain areas, he has had difficulty and not made progress.⁸⁷

Dr. Muzio, on the basis of her observation of Student at Eagle Mountain, concluded that he received significant benefit from the language arts class; she concluded that it would maximize his educational development. She also noted that Student was engaged, hard working and enthusiastic during his math class, and that he seemed to integrate the instruction, producing a graph as part of the class work. This testimony supports Ms. Lockhart’s testimony that Student is benefiting from the education at Eagle Mountain although I do not give it significant weight because the testimony is based on a brief period of observing two individual classes.

Eagle Mountain School issues written progress reports every six months. These reports, after first explaining what each class worked on during the period, typically provide only a brief commentary with respect to what the particular Student has learned and occasionally utilize somewhat vague statements. As a result, the reports are relevant but not particularly persuasive when seeking to assess Student’s overall progress in a particular subject. I note, however, that these reports generally support the testimony of Ms. Lockhart and Dr. Muzio that Student has made progress in some areas, and they also indicate a failure to make progress in other areas.⁸⁸

Gill-Montague has not disputed that Student is developing well emotionally and socially in the context of a structured and supported environment at Eagle Mountain. Dr. Muzio opined that this is attributable to his fitting in well within Eagle Mountain School, with the result that he considers himself not to be different than his peers.⁸⁹

Student’s social and emotional well-being is relevant to his educational progress. Particularly with a child as disabled as this Student, there is a heightened concern that his self-esteem will be seriously diminished in a less structured environment where he and his peers may identify him as different and this, in turn will impact upon his willingness and ability to make educational gains.⁹⁰ Student’s emotional and social development supports the conclusion that Student is benefiting from the program at Eagle Mountain School.

Next, I note that in several of the written evaluation reports from Massachusetts General Hospital (MGH), the evaluators implicitly noted the benefits that Student was receiving from Eagle Mountain and recommended a continuation of his educational program, including the intensive written language remediation at Eagle Mountain.

For example, the MGH occupational therapy evaluation of December 28, 1999 concluded: “At this time it is indicated that [Student] continue with an alternative classroom setting which can focus on key areas to allow continue [sic] skill acquisition.”⁹¹

The MGH speech/language evaluation of the same date endorsed for Student the Lindamood Bell reading program, which is used with him at Eagle Mountain. This report further concluded:

[I]t is felt that [Student] is currently in a placement that is supporting his spoken and written language needs . He should continue to receive intensive written language remediation on a daily basis in order to strengthen his decoding, encoding, automaticy, reading comprehension and written formulation skills.⁹²

I give limited weight to these written opinions. They were not subject to cross-examination, and they address a time period not in dispute. They nevertheless provide further, limited support for the educational program that Student has been receiving at Eagle Mountain.

I now turn to the standardized testing that has been conducted by Eagle Mountain staff, MGH, Gill-Montague and most recently Dr. Muzio. Student’s standardized test scores provide a more precise measure of how much Student is gaining from his education at Eagle Mountain.

The standardized testing done by Eagle Mountain each year during the month of May allows for comparison from one year to the next utilizing the same test instruments. Eagle Mountain uses this testing to determine how its students are progressing and how the instruction might be changed to address better a child’s particular needs. Testimony of Lockhart.

A comparison of these test scores reflects the following:

· significant improvement in Student’s phonemic awareness as tested by the Lindamood Auditory Conceptualization Test, with the most recent scores from 5/18/00 showing that he now has no areas of weakness;

· significant progress in word attack skills, improving from grade equivalent 1.6 to 2.4 to 4.1 over the course of two years, as tested by the Woodcock Reading Mastery Test, Revised;

· weakness in reading decoding and fluency, continuing to score in the less than 1.9 percentile in the Passage subtest score of the Gray Oral Reading Test;

· significant gains in the comprehension subtest of the Gray Oral Reading Test, measuring rate and accuracy of comprehension;

· steady improvement in arithmetic and science according to standardized test scores;

· losing ground in social studies, returning to the grade equivalent score he obtained two years earlier.⁹³

These test results, in general, reveal that in a number of important areas, Student is making progress (as reflected in an improvement in his grade equivalent scores), but in many of these same areas, he is losing ground in comparison to his peers (as reflected in a decrease in his percentile scores). I find that these test scores confirm what other, less probative evidence also reflects – that is, that Student is making slow progress in certain areas (for example, mathematics, science and certain aspects of language arts, including word attack skills, phonemic awareness, reading comprehension and vocabulary), and he is not making progress in other areas (for example, social studies, reading decoding and fluency). Also, in those areas that he is making progress, the progress that he is making is typically less than the progress being made by his peers in these same areas.

This then raises the question as to whether this amount of progress should be considered sufficient to allow Parents to obtain reimbursement for his educational program at Eagle Mountain. With respect to this aspect of the controversy, I believe this to be a close case.

Perhaps Gill-Montague’s strongest argument is that Student’s progress is not sufficient, and that his failure to make greater progress reflects serious flaws in Eagle Mountain’s expectations, competency, instruction and related services, as described earlier in this Decision. For example, Gill-Montague argues that minimal progress requires that Student be learning subject matter content and skills necessary to transition eventually into a mainstream educational program and receive a high school diploma. In order to more closely assess Gill-Montague’s arguments, I turn to case law for guidance.

A number of judicial decisions discuss the interplay between the requisite benefit to the individual child, the nature of the individual child’s disability and the ability of the child to make gains in light of this disability. The courts explain that the minimum amount of benefit required pursuant to federal special education law will inevitably depend on the potential of the particular student to benefit from the special education services he/she receives. In other words, one must evaluate progress not in a vacuum but rather in the context of the particular child, and whether the progress is sufficient in light of his unique disabilities.⁹⁴

For these reasons, I evaluate Student’s progress on the basis of what improvements he has made as measured with respect to himself (for example, changes in grade equivalency scores over a year or more), and whether these improvements may be considered meaningful in light of his disabilities and potential for educational growth. Declining percentile scores (which indicate his failure to keep up with his peers) are relevant but not determinative.

Student’s learning disabilities are multi-faceted and severe. His social studies teacher at Eagle Mountain (Ms. Lockhart) places him within the 25% most disabled children at Eagle Mountain, and she opined that because of the severity of his disabilities, she does not expect that he will be able to transition from Eagle Mountain to a mainstream school. As explained in detail earlier in this Decision, Dr. Muzio also testified in some depth regarding the extensive and severe nature of Student’s learning disabilities. The Gill-Montague witnesses may see more potential for growth and participation in mainstream education. But, of all the witnesses who testified, it was Dr. Muzio (having done a recent, comprehensive evaluation) and Ms. Lockhart (having worked directly with Student since 1998) who have the most in depth and comprehensive understanding of Student.

Student’s learning deficits continue to limit his educational development. Student has been able to make gains in spite of these on-going disabilities. This is illustrated by reviewing and comparing specific aspects of his language disability. For example, because of the nature of his reading disability, his phonemic awareness efficiency may continue to be a deficit. Student’s site word efficiency (27 th percentile), however, has improved and is now significantly better than his phonemic awareness efficiency (7 th percentile). This indicates that he has been able to develop his vocabulary even as his phonemic efficiency remains very low. Similarly, his reading comprehension has improved (to the 25 th percentile) even as his basic reading skills are at a very low level (6 th percentile), indicating that he is using different skills to compensate (and help him understand the text) even as his language deficits regarding basic reading skills continue.⁹⁵ As described above, Student has made gains regarding math and science. Also, for this particular child at this particular time, the development of language arts skills that will be critical to future learning appear to be most important (as compared, for example, to learning the content of subject areas such as social studies), and this is what Eagle Mountain has focused on.⁹⁶

For these reasons, I find that as a result of his educational program at Eagle Mountain, Student’s improvements may be considered to be slow but nevertheless meaningful progress for this particular individual, given the severity of his on-going learning deficits and corresponding potential for improvement.

Finally, I find that this progress has occurred in a program with the structure and supportive environment recommended by Dr. Muzio who has provided the most recent, most comprehensive and most credible evaluation of Student.⁹⁷ The educational environment is also generally consistent with the recommendations of the neuropsychologist, speech/language pathologist and occupational therapist from Mass. General Hospital.⁹⁸ There are no other current evaluations submitted into evidence that address this issue.

5. Conclusion .

I conclude that (1) the special education services provided to Student at Eagle Mountain have addressed his unique, individual needs, (2) these services have resulted in meaningful progress, particularly with respect to Student’s most significant needs (that is, the development of language arts skills), and (3) this progress has occurred in a program with the structure and supportive environment recommended by the evaluators.

ORDER

Gill-Montague shall reimburse Parents for costs associated with the placement of Student at Eagle Mountain School during the time period of the most recent IEP.⁹⁹

By the Hearing Officer,

William Crane

Dated: August 17, 2001

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL

EFFECT OF DECISION AND RIGHTS OF APPEAL

The decision of the Bureau of Special Education Appeals is final and is not subject to further agency review. Because 20 USC s. 1415(i)(1)(B) requires the Bureau decision to be final and subject to no further agency review, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision, once it is issued. Any party aggrieved by the Bureau decision may file a complaint in the Superior Court of competent jurisdiction or in the District Court of the United States for Massachusetts for review of the Bureau decision. 20 USC s. 1415(i)(2). Under Massachusetts General Laws, Chapter 30A, Section 14(1), appeal of a final Bureau decision must be filed within 30 days of receipt of the decision.

Except as set forth below, the final decision of the Bureau must be implemented immediately. Under G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay; rather, a party seeking to stay the decision of the Bureau must seek such stay from the court having jurisdiction over the party’s appeal.

Under the provisions of 20 USC s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program,” 20 USC s. 1415(j). Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings, must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983); Honig v. Doe , 484 U.S. 305 (1988).

RECORD OF THE HEARING

The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to MGL c.30A, ss. 11(6) and 14(4), an appealing party seeking a certified written transcription of the entire proceedings, must arrange for the transcription, or portion thereof, by a certified court reporter, at his/her own expense. Transcripts prepared by the party must then be submitted to the Bureau of Special Education Appeals with appropriate court reporter certification for final review and certification. A party unduly burdened by the cost of preparation of a written transcript of the sound recordings may petition the Bureau of Special Education Appeals for relief.

COMPLIANCE

A party contending that a decision of the BSEA is not being implemented may file a complaint with the Department, whose responsibility it shall be to investigate such complaint. 603 CMR s. 28.00, par. 407.0.

In addition, the party shall have the option of filing a motion with the Bureau of Special Education Appeals, requesting the Bureau to order compliance with the decision. The motion shall set out the specific area of alleged non-compliance. The Hearing Officer may convene a hearing at which the scope of inquiry will be limited to facts bearing on the issue of compliance, facts of such nature as to excuse performance and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief and refer the matter to the Legal Office of the Department of Education for enforcement.

CONFIDENTIALITY

In order to preserve the confidentiality of the child involved in these proceedings, when an appeal is taken to Superior Court or to Federal District Court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See, Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.

NOTICE OF REVISED BUREAU PROCEDURES

ON RECONSIDERATION/REHEARING

The United States Department of Education, Office of Special Education Programs (OSEP) in its 1990 Monitoring Report, issued July 17, 1991, ordered the Bureau to amend its procedures to eliminate the availability of reconsideration or re-opening as post-decision procedures in the Bureau cases. Accordingly, parties are notified that the Bureau will not entertain motions for reconsideration or to re-open. Bureau decisions are final decisions subject only to judicial review.

In addition, parties should be aware that the federal Courts have ruled that the time period for filing a judicial appeal of a Bureau decision is thirty (30) days, as provided in the Massachusetts Administrative Procedures Act, MGL c.30A. See, Amann v. Town of Stow , 991 F.2d 929 (1 st Cir. 1993); Gertel v. School Committee of Brookline , 783 F. Supp. 701 (D. Mass. 1992). Therefore, an appeal of a Bureau decision to state superior court or to federal district court must be filed within thirty (30) days of receipt of the Bureau decision by the appealing party.

1

Exhibits S-2, P-7, as amended by Exhibit S-1

2

Testimony of Father, Muzio, Hallowell, Lockhart; Exhibits S-2, S-19, P-7, P-15.

3

Testimony of Muzio; Exhibits S-2, S-19, P-7, P-15.

4

Testimony of Father.

5

Testimony of Father, Gregory; Exhibits S-2, P-7.

6

See also her resume, Exhibit S-52.

7

Exhibits S-2, P-7, as amended by Exhibit S-1.

8

Id .

9

Id .

10

The parties stipulated that Gill-Montague’s 4 th and 5 th grade curriculums are aligned with the most recent versions of curriculum frameworks.

11

Exhibit S-35.

12

Exhibit S-24.

13

Exhibits S-24, P-1.

14

Exhibits S-23, P-2.

15

Exhibits S-23, P-2.

16

See also her resume at Exhibit S-55.

17

See these children’s IEPs at Exhibits S-47 through S-50.

18

See also her resume, Exhibit P-12.

19

Exhibit S-35.

20

See Exhibit P-9 for standardized scores in these areas.

21

See her resume, Exhibit P-11.

22

See also her report, Exhibit P-15.

23

Exhibit P-15, page 4.

24

Exhibit P-15, pages 5, 6.

25

Dr. Muzio’s report further indicates that the psychological and neuropsychological measures administered reveal a profile of significant weakness in basic reading skills, lexical access (word find), short-term auditory and visual memory as well as visual-perceptual, visual-spatial and visual fine-motor skills. His profile is also notable for significant weakness with both language-based tasks (such as basic reading skills, phonological awareness and auditory learning) as well as performance-based tasks (such as graphomotor skills, visual perceptual and visual fine-motor functioning). His strongest area is in the use of language, both expressive and receptive, when there is meaningful, familiar subject matter. Exhibit P-15, pages 6, 9.

26

Exhibits S-24, P-15.

27

Exhibits S-19, P-15.

28

Exhibit S-22.

29

27 th percentile pursuant to her testing; Exhibit P-15, pages 5-6.

30

7 th percentile pursuant to her testing; Exhibit P-15, pages 5-6.

31

25 th percentile pursuant to her testing; Exhibit P-15, page 7

32

6 th percentile pursuant to her testing; Exhibit P-15, page 8

33

See also her report, Exhibit P-15, page 7.

34

Dr. Muzio testified that because of the severity of his learning disabilities, the global nature of these disabilities and the limited nature of his strengths, Student would need so many pull-out services if he were to be served in the public school setting that this pull-out model would limit significantly his availability for regular instruction, the model would limit significantly the time available for social relations with peers, and his special education services would not likely be sufficiently remedial.

35

Exhibit P-15, page 7.

36

Exhibits S-22, P-4.

37

Exhibit S-19.

38

Exhibits S-20, P-6.

39

Exhibit P-9. The test scores appear on the last page.

40

Exhibit P-8.

41

Exhibit J-1.

42

Exhibit J-2. This exhibit is of only limited relevance since it involves a different student and much of the evidence regarding Eagle Mountain School is based on statements made prior to the time period in question in the present dispute. Nevertheless, there are several findings of relevance – for example, paragraph 49 regarding in-service training at the School.

43

20 USC s. 1400 et seq .

44

MGL c. 71B.

45

David D. v. Dartmouth School Committee , 775 F.2d 411, 423 (1 st Cir. 1985).

46

The IEP referenced is for the period 4/12/2000 to 4/11/2001. Exhibits S-2, P-7, as amended by Exhibit S-1.

47

Testimony of Muzio; Exhibits S-2, S-19, P-7, P-15 (pages 6, 9).

48

Testimony of Muzio; Exhibit P-15.

49

Testimony of Muzio, Palmer; Exhibit P-15, pages 3, 9.

50

Testimony of Hallowell; Exhibits S-2, P-7, as amended by Exhibit S-1.

51

Testimony of Muzio.

52

Testimony of Muzio.

53

Testimony of Muzio.

54

Testimony of Hallowell, Muzio; Exhibits S-2, P-7, as amended by Exhibit S-1.

55

Testimony of Muzio; Exhibit P-11. See also her written report, Exhibit P-15.

56

Gill-Montague argues that the Hearing Officer should not consider Dr. Muzio’s evaluation report (and her testimony based on her evaluation) because her evaluation occurred after the IEP was drafted and amended. Gill-Montague correctly points out that in Roland v. Concord School Committee , 910 F.2d 983, 992 (1 st Cir. 1990), the First Circuit has made it clear that:

An IEP is a snapshot, not a retrospective. In striving for “appropriateness,” an IEP must take into account what was, and was not, objectively reasonable when the snapshot was taken, that is at the time the IEP was promulgated.

However, nothing within the Roland decision precludes the consideration of subsequent expert evaluations and expert opinions so long as they are used to determine whether the IEP, at the time it was drafted, was appropriate.

I have considered the testimony and report of Dr. Muzio and the testimony of Ms. Townes from this perspective. I further note the following authority for doing so.

In Town of Burlington v. Department of Education , 736 F.2d 773, 791 (1 st Cir. 1984) affirmed, 471 U.S. 359 (Burlington II), the First Circuit Court of Appeals discussed when additional evidence should be allowed by a federal District Court in an appeal from a BSEA decision, including testimony from experts who did not testify at the administrative hearing. The First Circuit noted: “We also recognize that in many instances experts who have testified at the administrative hearing will be bringing the court up to date on the child’s progress from the time of the hearing to the trial.” See also 20 USC 1415(i)(2)(B) (allowing a party to request the court to hear additional evidence in an appeal of a special education dispute under the IDEA).

Burlington’s additional evidence standards were explicitly applied by the federal District Court in David D. v. Dartmouth School Committee , 615 F.Supp 639 (D. Mass. 1984), aff’d 775 F.2d 411 (1 st Cir. 1984) when the trial Court allowed and considered expert testimony not presented at the administrative hearing. One of Student’s experts was a clinical psychologist who formally evaluated Student during Student’s eight-week stay at Bradley Hospital in January 1984. The Court allowed and relied upon this testimony (which was based on the 1984 evaluation) in assessing the appropriateness of the earlier (1982-1983) IEP. Similarly, other expert witnesses testified in the District Court proceeding (and their testimony was considered by the Court) regarding their present opinion (in 1984) regarding the adequacy of the earlier (1982-1983) IEP. Id . at 641-643. See also Cypress-Fairbanks School Independent District v. Michael F ., 118 F.3d 245 (5 th Cir. 1997) (relying on expert testimony in the federal District Court hearing relative to appropriateness of the IEP).

Also, the First Circuit as well as other Circuit Courts have consistently held that evidence of a student’s later educational progress may be considered in determining whether the earlier IEP, when it was drafted, was appropriate. Metropolitan Board of Public Education v. Guest , 31 IDELR 75 (6 th Cir. 1999); Fuhrmann v. East Hanover Board of Education , 993 F.2d 1031 (3 rd Cir. 1993); Roland v. Concord School Committee , 910 F.2d 983, 991 (1 st Cir. 1990).

Further, I note that Federal regulations require that a school district’s evaluation of a child be “sufficiently comprehensive to identify all of the child’s special education and related services needs . . .” 34 CFR 300.532(h) (emphasis added). See also 34 CFR 300.536 (applying 34 CFR 300.532(h) to reevaluations). Gill-Montague should not be able to exclude a later evaluation by Dr. Muzio which in effect reveals additional special education needs not clearly identified by Gill-Montague’s evaluations.

Finally, after receiving Dr. Muzio’s evaluation, Gill-Montague did not re-convene the Team, consider the IEP and propose an amended IEP prior to the Hearing in this matter, nor did Gill-Montague request a postponement in the Hearing to allow more time to do so prior to the Hearing. (Within ten school days of the receipt of an independent evaluation, the school district is required to re-convene the Team so that the Team can consider the evaluation and decide whether a new or amended IEP is appropriate. 603 CMR 28.04(5)(f).) Having failed to take these steps (and thereby continuing to rely on an IEP which does not reflect the new evaluation), Gill-Montague should not now be able to preclude consideration of the evaluation (and testimony based on the evaluation) by the Hearing Officer on the basis of an argument that the evaluation occurred after the development of the IEP.

57

A fifth witness (Ms. Gregory) testified on behalf of Gill-Montague, but she did not offer an opinion relative to the appropriateness of the educational program reflected in the proposed IEP.

58

This testimony is in conflict with testimony of Dr. Muzio who concluded that Student would not be able understand the instruction and concepts used in a typical 4 th grade class. It is this inability to understand 4 th grade instruction/concepts, together with the pervasiveness of Student’s disabilities, that led Dr. Muzio to her conclusions that Student would not make effective progress in inclusion classes that are taught at the 4 th grade level. Testimony of Muzio.

59

Testimony of Muzio; Exhibits S-23, P-2, P-15. The standardized test scores arguably support Hallowell in one respect — they reflect Student’s relative strength regarding listening comprehension. See Exhibit P-15, page 8 (average range on the Listening Comprehension subtest of the WIAT). But, as the Gill-Montague’s school psychologist explained in her testimony, average ability regarding listening comprehension, as evidenced in a standardized test, does not necessarily translate into an average ability to understand in an actual classroom. Student has other deficits which present a more complicated picture (regarding his ability to understand 4 th grade language and concepts) than is reflected in the listening comprehension subtest alone. Testimony of Palmer.

60

To be considered, the testimony of an expert must be both reliable and relevant. See generally Richland School District v. Thomas P ., 32 IDELR 233 (W.D. Wisc. 2000) (discussing the applicability to a special education case of the expert testimony standards set forth in Daubert v. Merrell Dow Pharm, Inc., 509 U.S. 579, 589 (1993) and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999)).

61

Exhibits S-23, P-2.

62

Exhibits S-47 through S-50.

63

Gill-Montague argues that the Hearing Officer should not consider Ms. Townes’ opinion to the extent that it is based on Dr. Muzio’s evaluation report and testimony because Dr. Muzio’s evaluation occurred after the IEP was drafted and amended. I disagree for the reasons explained in footnote 56 above.

64

Exhibits S-22, P-4.

65

Testimony of Hallowell, Hazlett.

66

School Committee of Town of Burlington, Mass. v. Department of Education of Mass ., 471 U.S. 359, 369-70 (1985).

67

Doe v. West Boylston School Committee , 4 MSER 149, 161 (D.Mass. September 14, 1998).

68

Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 203-204, 102 S.Ct. 3034, 3049 (1982).

69

See, e.g., Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) (educational benefit must be “meaningful”); Stockton by Stockton v. Barbour County Bd. of Educ ., 25 IDELR 1076 (4 th Cir. 1997) (FAPE must produce more than “some minimal academic advancement”); MC v. Central Regional School District , 81 F.3d 389 (3 rd Cir. 1996), cert. denied 519 US 866 (1966) (“residential program is required for [student] to make meaningful educational progress”); Ridgewood Board of Education v. NE , 30 IDELR 41 (3 rd Cir. 1999). (IDEA requires IEP to provide “significant learning” and confer “meaningful benefit”); Burlington v. Department of Education , 736 F.2d 773, 788 (1 st Cir. 1984) (objective is “demonstrable improvements in the educational and personal skills identified as special needs”). See also discussion in GD v. Westmoreland School District , 930 F.3d 942 (1 st Cir. 1991).

70

See, e.g., Houston Independent School District v. Bobby R. , 200 F.3d 341 (5 th Cir. 2000) (“IDEA requires tailoring to the unique needs of the handicapped child by means of an IEP”); Adams v. State of Oregon , 31 IDELR 130 (9 th Cir. 1999) (amount of service hours must be “linked to the child’s unique needs”); JSK v. Hendry County School Board , 941 F.2d 1563 (11 th Cir. 1991) (“[a]dequacy must be determined on a case-by-case basis in light of the child’s individual needs”); Burlington v. Department of Education , 736 F.2d 773, 788 (1 st Cir. 1984) (educational instruction must be based on the “unique needs of the disabled child” with sufficient support services so that the child will benefit from that instruction); 20 USC 1400(d)(1)(A) (purpose of the federal law is to ensure that children with disabilities have FAPE that “emphasizes special education and related services designed to meet their unique needs . . . .”); 34 CFR § 300.26 (“the term special education means specially designed instruction, at no cost to the parents, to meet the unique needs of a child with disability . . .); 603 CMR 28.02 (21) (“ special education shall mean specially designed instruction to meet the unique needs of the eligible student . . .”).

71

Testimony of Hallowell, Townes; Exhibit J-2 (par. 49). Many of these points have been agreed to by Parents and/or Eagle Mountain. Testimony of Lockhart; Exhibit J-1. There is also contradictory or explanatory evidence regarding some of these points – for example, there is evidence that the Eagle Mountain curriculum actually used by the teachers is not reduced to writing and that the curriculum actually used by the teachers incorporates much more of Curriculum Frameworks than is contained within the Eagle Mountain written curriculum. Testimony of Lockhart; Exhibit J-1. For reasons explained below, I need not resolve these contradictions.

72

Testimony of Hallowell, Gregory, Townes.

73

The Eagle Mountain teacher (Lockhart) testified that she did not believe that Student will be able to transition into a mainstream educational program.

74

Dr. Muzio testified persuasively that currently Student has no need for counseling services although as he moves through school in later years, he will need to develop greater understanding of his limitations. Testimony of Muzio; Exhibit 15, page 7. There is no evaluation or expert opinion to the contrary.

75

Dr. Muzio testified that although speech/language services could benefit Student generally, she does not believe that such services are necessary for Student at Eagle Mountain. She reached this conclusion because, in her opinion, Eagle Mountain provides a comprehensive, integrated language-based program that is meeting Student’s needs without the addition of these specialized services – that is, these services are woven into and made a part of the program without the need for them to be provided separately. She further explained that Student’s speech/language needs are not so much in the area of articulation or fluency (his speech is “fine”), but his needs relate to his use of language, and these needs are being addressed at Eagle Mountain. I find Dr. Muzio’s testimony persuasive on this point.

An MGH Senior Speech Language Pathologist recommended either individual remediation with a speech-language pathologist or written language specialist at least 1x/week. Exhibit S-19. Student has a daily individual reading tutorial and a daily writing class. Testimony of Lockhart. Since the pathologist did not testify, it is not possible to know with any certainty whether she would support the manner in which the Eagle Mountain program addresses speech/language skills.

An MGH Neuropsychologist recommended speech therapy three times per week to address expressive language deficits. Exhibits S-22, P-4. But, this evaluation is somewhat dated (6/4/99) and the evaluator did not testify. It is not possible to know whether she would agree with Dr. Muzio that sufficient speech services are woven into and made part of the program without the need for them to be provided separately. I therefore do not give these two written evaluations significant weight.

76

Dr. Muzio explained that occupational therapy could help address fine motor skills (handwriting), but this is not a critical need for Student at this time, although by 5 th grade, he should be learning keyboarding. I find Dr. Muzio’s testimony persuasive on this point. An MGH Occupational Therapist recommended occupational therapy in a December 1999 evaluation, without specifying the amount of the recommended therapy. Exhibits S-20, P-6. Also, an MGH Neuropsychologist recommended occupational therapy once or twice per week. Exhibits S-22, P-4. This evaluation is somewhat dated (6/4/99). These two evaluators did not testify, making it impossible to know whether they would agree with Dr. Muzio’s more current analysis. I therefore do not give these two written evaluations significant weight.

77

A decision by a federal Circuit Court recently addressed this precise issue:

Bexley contends that the Knables are not entitled to reimbursement because Grove School was not the “least restrictive” placement as required by the IDEA. See 20 USC § 1412(5); 34 CFR § 300.550. We noted in Boss , however, that parents who have not been treated properly under the IDEA and who unilaterally withdraw their child from public school will commonly place their child in a private school that specializes in teaching children with disabilities. See 144 F.3d at 400 n.7. We would vitiate the right of parental placement recognized in Burlington and Florence County were we to find that such private school placements automatically violated the IDEA’s mainstreaming requirement. See id.

Knable v. Bexley City School District , No. 99-4326/4394, 34 IDELR 1 (6 th Cir. 1/24/01).

78

Florence County School District Four v. Carter, 510 US 7 (1993).

79

4 MSER 149 (D.Mass. September 14, 1998).

80

4 MSER at 161-162.

81

Testimony of Lockhart; Exhibit J-1.

82

Testimony of Lockhart; Exhibit P-8.

83

Testimony of Lockhart.

84

This tutorial also addresses the recommendation contained within the MGH Speech/Language Evaluation for individual remediation with a written language specialist. Exhibit S-19.

85

The appropriateness of the match between Student, his unique academic needs and the program offered by Eagle Mountain is further supported by how Student himself has responded to this academic environment, beginning with his first year at Eagle Mountain. He has gotten along well with his peers and teachers, has had a good sense of what he needs to do to make gains academically, and has been a diligent and conscientious worker, with a positive sense of self. This has occurred notwithstanding the global and severe nature of his learning disabilities. Testimony of Father, Lockhart, Muzio.

86

Gill-Montague argues that Eagle Mountain has not developed for Student a written IEP or other statement of individual goals and objectives, but for purposes of this analysis what is important is the reality of Student’s services and how well they match his individual needs.

87

Ms. Lockhart provided the following examples of Student’s gains: he has made significant gains in his ability to write (he is now able to write simple sentences and is beginning to be able to write a five-sentence paragraph); he has made noteworthy gains in becoming a reader (he is now able to read aloud); he has made progress in spelling as well as his vocabulary; he has made slow progress in dictionary skills (he is at the beginning level in this area); he has made very slow progress in handwriting; he has made progress in math and has gained an understanding of money; he has improved his phonemic awareness as reflected in the Lindamood Auditory Conceptualization Test which most recently shows no areas of weakness; he has shown gains in science but he fell back in social studies, as reflected in Woodcock-Johnson Tests of Achievement; and he has continued to show weakness in reading decoding and fluency although he has shown gains in the Gray Oral Reading Test comprehension subtest which measures rate and accuracy of comprehension. See Exhibit P-9 for standardized scores in these areas.

88

Exhibits P-10, J-1.

89

Exhibit P-15, page 7.

90

Testimony of Muzio; Lockhart.

91

Exhibit S-20, P-6.

92

Exhibit S-19 (emphasis supplied).

93

Exhibit P-9, last page (reproduced in the Evidence section of this decision); testimony of Lockhart. Dr. Muzio’s test results are also instructive as a point of comparison with previous testing by other evaluators. Dr. Muzio found that in mathematics reasoning, testing of Student reflected a 2.9 grade level and 16 th percentile on the WIAT (testing on 3/12/01) while math test scores from an educational evaluation by Gill-Montague (testing on 11/23/98 to 12/1/98) found Student to be at the 1.6 grade equivalent and 31 st percentile in math reasoning on the Woodcock Johnson Revised test. Exhibits S-24, P-15. In addition, Dr. Muzio’s evaluation showed that Student’s basic reading skills were at the 6 th percentile and 2.5 grade equivalent on the WIAT (testing on 3/12/01) while an MGH June 1999 neuropsychological evaluation found that Student was at the 1.7 grade equivalent level for reading (no percentage scores were provided by the tester) on the Differential Ability Scales test, and the MGH Speech/Language evaluation in December 1999 found Student was at the 2.1 grade equivalent and 19 th percentile in word attack skills on the Woodcock Johnson Revised test. Exhibits S-19, S-22, P-15. Although these comparisons are relevant, grade equivalent measures are not the most reliable measure of change, particularly where, as here, different tests are being compared. Testimony of Muzio.

94

Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) (“disabled child’s development should be measured not by his relation to the rest of the class, but rather with respect to the individual student, as declining percentile scores do not necessarily represent a lack of educational benefit, but only a child’s inability to maintain the same level of academic progress achieved by his nondisabled peers”); Ridgewood Board of Education v. NE , 30 IDELR 41 (3 rd Cir. 1999) (“quantum of educational benefit necessary to satisfy IDEA . . .requires a court to consider the potential of the particular disabled student before it”); MC v. Central Regional School District , 81 F.3d 389 (3 rd Cir. 1996), cert. denied 519 US 866 (1966) (child’s untapped potential was appropriate basis for residential placement).

95

Testimony of Muzio, Lockhart; Exhibit P-15.

96

Testimony of Lockhart.

97

Dr. Muzio’s recommendations are discussed above in the Statement of the Evidence as well as in parts A, B3 and B4 of this Decision. Dr. Muzio concluded that, on the whole, the most important ingredients for effective education for Student are that the instruction be at his level, that the class size be sufficiently small and that he receive sufficient opportunity for individual instruction; all three are necessary so that the instruction will be appropriate to Student and effectively address his individual needs. In her opinion, Eagle Mountain is a cohesive instructional environment with language-based instruction which satisfactorily addresses Student’s educational needs in these regards.

98

Exhibits S-19, S-20, S-22, P-4, P-6, discussed in the Statement of the Evidence. The significant discrepancies between these evaluations and what is provided at Eagle Mountain relate to speech/language therapy and occupational therapy. The need for these therapies at Eagle Mountain is discussed in footnotes 75 and 76 above.

99

The IEP is for the period 4/12/00 to 4/11/01. Exhibits S-2, P-7, as amended by Exhibit S-1. Neither party has asked that the Hearing Officer address prospective issues.