Hanover Public Schools v Student – BSEA # 06-1157
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Hanover Public Schools v. Student
BSEA # 06-1157
This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL ch. 71B), the state Administrative Procedure Act (MGL ch. 30A) and the regulations promulgated under these statutes.
Hanover Public Schools (Hanover) filed its Request for Hearing on August 26, 2005. Thereafter, both Hanover and Parents requested postponements of the Hearing dates until both agreed on dates in February 2006. On October 13, 2005, Parents requested reimbursement for their unilateral placement of Student at the Carroll School. A hearing in the above referenced matter was held on February 2 and 3, 2006 in Malden, MA before Hearing Officer Rosa I. Figueroa. Those present for all or part of the proceedings were:
Student’s Father Pro-Se
Student’s Mother Pro-Se
Nancy Nevils Attorney for Hanover
Gina Hurley Psychologist, consultant for Hanover
Jim Shillinglaw Special Education Director, Hanover
Stacie Barlow Speech and Language Pathologist, Hanover
Jane Therrien Special Education Teacher
Colleen Madigan Special Education Coordinator, Hanover Middle School
Mari Anne Apuzzi Tutor, Hanover Middle School
Jennifer Foss Teacher, Hanover Middle School
Stephen Belmor Teacher, Hanover Middle School
Stephen Wilkins Carroll School, Head of School
Laura Benkov Neuropsychologist
Karen Colahan Carroll School, Middle School Teacher
Millie Sanders BSEA Intern, Observer
Mark Sevigny BSEA Coordinator of Mediation, Observer
The official record of the hearing consists of documents submitted by the Parent and marked as exhibits PE-A through PE-E, PE-F (first two pages), PE-G, PE-J through PE-N, PE-P, PE-Q, PE-T and PE-V1 ; documents submitted by Hanover and marked as exhibits SE-1 through SE-49 and SE-51 through SE-56; and recorded oral testimony. The Parties opted not to make or submit closing arguments. The record closed on Friday February 3, 2006.
1. Is the IEP proposed by Hanover covering the period from July 21, 2005 through July 21, 2006 as amended (SE-31) reasonably calculated to provide Student with a free appropriate public education (FAPE) in the least restrictive environment?
2. If not, are Parents entitled to reimbursement for their unilateral placement of Student at Carroll for the 2005-2006 school year?
POSITION OF THE PARTIES
Parents state that Student requires intensive language-based, multi-sensory, rule-based specially designed instruction, across all areas of the curriculum with daily Orton-Gillingham instruction to make effective progress. They assert that Student’s needs are being met at the Carroll School (Carroll) where they placed Student unilaterally in 2004. Parents further assert that Student’s needs cannot be appropriately met in Hanover under the proposed 2005-2006 IEP as amended. Parents seek reimbursement from Hanover for the 2005-2006 school year.
Hanover affirms that it has offered Student an appropriate IEP for the 2005-2006 school year, which it later amended once Parent assented and it was able to conduct the updated speech and language and the neuroeducational evaluations. Hanover asserts that it can offer Student a FAPE through the partial inclusion program that it developed at the Hanover Middle School that will allow the Student to make meaningful progress. If the IEP is found to be insufficient, Hanover asserts that it can make any modification it is ordered in accordance with my decision. Lastly, Hanover disputes that Carroll has met Student’s needs and therefore, Parents are not entitled to reimbursement.
FINDINGS OF FACT
· Born on February 28, 1987, Student is an eleven year-old resident of Hanover who presents with severe language-based learning deficits and dyslexia. (PE-1; Testimony of Parent, Benkov) In 2002, Dr. Anne Marie Lasoski diagnosed Student with a phonological disorder associated with a prominent visual-perceptual learning disability. (SE-4) Student was unilaterally placed by Parents at the Carroll School (Carroll) during her fourth grade and she has remained there. Student who has been described as a delightful, hard working student, is currently in the sixth grade. (SE-9; Testimony of Mother, Colahan, Benkov)
· Student attended school in Hanover between kindergarten and the third grade. (SE-3; PE-B1) Her first special education evaluation occurred at the end of her second grade when her teachers noted that Student was not acquiring reading skills. (SE-3; PE-B1) Hanover conducted a psychoeducational evaluation, a speech and language evaluation and a reading evaluation, which supported a finding of special needs. (SE-4) A significant discrepancy was noted between the Verbal and Performance scores on the WISC-III showing better developed verbal abilities than visual-construction and visual analysis abilities. Student’s Achievement scores in math, written language and reading2 were significantly lower than predicted. (SE-4) The evaluator concluded that Student presented with a learning disability affecting reading and a multi-sensory approach for reading was recommended. (SE-4) Another reading evaluation conducted in the spring of Student’s third grade showed Student’s instructional level in reading to be at the mid-second grade level approximately. (SE-4) Unhappy with the progress made during the third grade, Parents enrolled Student at Carroll for fourth grade. Student has remained at Carroll ever since. (SE-3; PE-B1)
· At Carroll, Student participated in a language-based program across all settings and received Orton-Gillingham instruction during the first academic semester. (SE-3; PE-B) During the latter half of fourth grade Student received one-on-one LIPS training. In the fifth grade the one-on-one phonetic instruction was dropped and she received support for development of fluency. (SE-1; PE-B; Benkov, Mother, Wilkins)
· Student has been described as a happy, very hard-working, shy young woman who is very motivated to learn. (SE-1; Mother, Colahan) Because of her disability, Student has difficulties with processing auditorily presented material, word retrieval, and overall organization of language. (SE-1; PE-B2) Reading and writing are difficult, she has issues with encoding, misreads word and struggles with comprehension. The result of the evaluations performed by Dr. Hurley, Dr. Benkov and Ms. Barlow evidences Student’s difficulties in word retrieval and with the organization of language in general. Dr. Benkov found Student’s inferential skills to be poorly developed, and she was found to have significant learning issues with complex processing. (SE-1; PE-B2) Dr. Benkov’s evaluation results supported the diagnosis of Dyslexia. (SE-1; PE-B2)
· Norraine C. Wylonis, a private speech language pathologist, evaluated Student at the Parents’ request in May 2004. (PE-M) Student had been known by Ms. Wylonis since July 2002 when she began therapy with her for articulation. Ms. Wylonis noted that Student’s self-confidence and self-esteem had improved during the time she had known her. Based upon Student’s Phonological Awareness Test results, Ms. Wylonis concluded she had mastered all aspects of phonological awareness with one exception. Student continued to inconsistently visually perceive “b/d” and “d/b.” Student’s silent reading score on the Formal Reading Inventory was consistent with her CAT5 scores. (PE-M) Ms. Wylonis concluded that Student had made “remarkable gains in her reading comprehension” since her previous testing six months earlier. She reviewed testing available at the time of her evaluation and concluded that Student’s comprehension is in the 50 th percentile, showing greatly improved scores. Ms. Wylonis reported she had advised Student’s parents to discuss the results with her teachers to determine when Student would be ready to return to her district school. She reported that Student’s word retrieval difficulties were resolving and she had learned to self-cue. Her phonological processing issues had greatly improved on a grapheme-verbal level, but she continued to have difficulty with phoneme-grapheme written tasks. (PE-M)
· Ms. Wylonis recommended that Student receive individual speech and language therapy for written language development upon re-entry into the school district. (PE-M) She recommended that Student have a comprehensive reading evaluation by an independent licensed reading specialist. Ms. Wylonis also recommended a re-evaluation of Student’s speech and language abilities in one year. (PE-M)
· End of year testing done at Carroll in the fourth and fifth grades showed the following results. (PE-F) On the Stanford Achievement Test, Dictated Vocabulary, intermediate level, Student’s scaled score was 667 (82 nd percentile) at the end of fourth grade and 648 (48 th percentile) at the end of fifth grade. (PE-F) On the Woodcock Reading Mastery Test (Form H) Student’s scaled score for word attack was 98 (46 th percentile) and for word identification was 83 (13 th percentile) at the end of fourth grade and her scaled score for word attack was 90 (26 th percentile) and for word identification was 79 (8 th percentile) at the end of fifth grade. On the Gray Oral Reading Test-4, Student’s rate was a scaled score of 3 (1 st percentile), her score on accuracy was 3 (1 st percentile) and her score on fluency was 2 (less than the 1 st percentile) at the end of fourth grade. At the end of fifth grade her score for rate was 6 (9 th percentile), her score for accuracy was 4 (2 nd percentile) and for fluency 3 (1 st percentile). On the Test of Written Spelling, Form B, Student’s scaled score was 88 (21 st percentile) at the end of fourth grade and her scaled score was 77 (6 th percentile) at the end of fifth grade. (PE-F)
· On June 9, 2005 Laura Benkov, Ph.D., licensed clinical psychologist (PE-V) who evaluated Student on January 20, February 9 and April 6, 20053 , submitted a summary of her psychological and neuropsychological assessment of Student. (SE-1; PE-B2) The summary states that a full longer report would follow. The purpose of the assessment initiated at the request of Parents was to gain a better understanding of Student’s cognitive, emotional and academic functioning. (SE-1; PE-B2)
· Student was in the fifth grade and was eleven years nine months by the end of the evaluation. (SE-3; PE-B1) Dr. Benkov assessed Student using the following instruments: Wechsler Intelligence Scale for Children- Fourth Edition , Peabody Picture Vocabulary Test-Third Edition , Expressive One-Word Picture Vocabulary Test , Word Fluency Test , Wide Range Assessment of Memory and Learning- Second Edition (selected subtests: Verbal Learning, Story Memory, Design Memory), NEPSY Design Copying , Rey Osterrieth Complex Figure , Hooper Visual Organization Test , Purdue Pegboard , Wisconsin Card Sorting Test , Woodcock-Johnson Tests of Achievement – Third Edition (selected subtests: Calculation, Letter-Word Identification, Word Attack), Gray Oral Reading Test – Fourth Edition, Stanford Diagnostic Reading Test (Comprehension), Test of Written Language Writing Sample -Third Edition, Wechsler Individual Achievement Test (Spelling), Thematic Apperception Test , House-Tree-Person Test , Three Animal Interview , Three Wishes Interview , Clinical Interview. (SE-3; PE-B1) Additionally, Dr. Benkov interviewed Student’s parents and her fifth grade teacher and team leader at Carroll and reviewed prior evaluations and school records. (SE-3; PE-B1) According to Dr. Benkov, she used some of these tests to obtain qualitative information regarding Student’s functioning, as opposed to using them for quantitative reasons. She further stated that those tests used for qualitative information, some of which were outdated test measures, were not considered in rendering her conclusions. (Benkov)
· Student was extremely friendly, polite, and cooperative throughout the evaluation. She worked conscientiously on all tasks presented to her and was able to maintain an adequate level of focus and attention. (SE-3; PE-B1)
· According to Dr. Benkov, on the Wechsler Intelligence Scale for Children-Fourth Edition , Student obtained a Full Scale IQ score of 92, placing her in the 30 th percentile, with scale index scores as follows: Verbal Comprehension Index-104 (average range); Perceptual Reasoning Index- 90 (average range); Working Memory Index 88 (low average range); and Processing Speed Index- 91 (average range). (SE-1; PE-B2) This test showed that Student’s verbal comprehension score was significantly higher indicating that this is an area of relative strength for her. According to Dr. Benkov, the discrepancies and degree of scatter in the subtest scores indicate that the Full Scale IQ should be viewed with caution, as it inadequately reflects Student’s overall cognitive profile. (SE-1; PE-B2) Student’s verbal skills are better developed than her non-verbal skills with weaknesses seen in the visual perceptual, visual-motor integration, complex motor and organization areas.
· In the Grey Oral Reading Test- Fourth Edition , Student obtained the following scores: Rate- 4.2 grade equivalent level; Accuracy-3.7 grade equivalent; and Comprehension-2.7 grade equivalent level. (SE-1; PE-B2) Student also obtained a 2.9 grade equivalent level as evidenced in the Letter Word identification subtest of the Woodcock-Johnson Test of Achievement-Third Edition, while the Word Attack subtest placed her at the 3.9 grade equivalent level. On the Calculation subtest she scored at the 4.9 grade equivalent level for Math skills. (SE-1; PE-B2)
· Dr. Benkov concluded that Student’s neuropsychological protocol highlights “very significant difficulties with reading and writing in the context of overall average cognitive functioning.” Overall, Student demonstrates better developed verbal than non-verbal skills. She noted weaknesses in visual-perception, visual-motor integration, organization, memory, and complex processing. She noted that Student has several relatively stronger language skills, but concluded that her history, current functioning and current test findings reveal difficulties in word retrieval and fluency and difficulties with the organization of language. (SE-3; PE-B1)
· Student’s emotional functioning was assessed by the Thematic Apperception Test, House-Tree-Person Test, Three Animals Interview, Three Wishes Interview and Clinical Interview. Dr. Benkov determined Student has many strengths, “but is clearly at risk of emotional deterioration should her need for intensive and comprehensive programming to address her very significant learning disabilities not continue to be met.” (SE-3; PE-B1) Overall, Dr. Benkov found Student to be emotionally stable with good reality testing, a strong and well-developed desire to connect to others and the capacity to do so. (SE-1; PE-B2) Student was found to be well aware of her difficulties and seemed better able to express herself in one to one or in small group situations. (SE-1; PE-B2) Mother and Dr. Benkov agreed that “Student maintains a hopeful stance, but requires a great deal of support in order to do so.” (SE-3; PE-B1; Benkov, Mother)
· According to Dr. Benkov, Student required instruction in a setting that could address all of her needs intensively and comprehensively as her gains regarding skill level and independent learning skills were emergent and not yet solidified. (SE-1; PE-B2) Dr. Benkov recommended that Student be placed in a “highly structured, language-based program, with small classes, a high ratio of teacher to student, an intensive focus on literacy and language-based teaching consistently integrated throughout all curricula ” so as to make effective progress. (SE-1; Dr. Benkov)
· Several electronic mails were exchanged between Dr. Gina Hurley and Dr. Laura Benkov between June 13 and June 24, 2005. These involve which assessments had already been used by Dr. Benkov so that Dr. Hurley could select tests from which she could obtain valid evaluation results for her evaluation on behalf of Hanover. (SE-2A, B, C and D) Dr. Benkov listed the tests she administered and also clarified that she had administered the Woodcock Johnson A, and just the space picture writing sample of the TOWL, which she administered mostly for qualitative analysis since it was an old edition. Dr. Benkov further stated that she did not do the WRAML-2 because she was in the process of getting it. (SE-2C) On June 24, 2005 Dr. Benkov informed Dr. Hurley that she had updated and completed Student’s testing by updating the WRAML and the TOWL. Specifically, she had administered the Verbal Learning Design Memory and Story Memory subtests of the WRAML-2, as well as the TOWL-3 writing sample (spaceship). She also administered the Design Copying subtest of the NEPSY. (SE-2D)
· On June 25 and July 12, 2005, Gina Hurley, Ed. D., Educational School Psychologist, conducted an evaluation of Student at the request of Hanover to help Hanover develop an IEP for Student who would be entering the sixth grade in September 2005. (SE-4) Student was 11 years nine months at the time of this evaluation. An observation of Student at Carroll could not take place because the evaluation started at the end of the school year. In addition to conducting a Parent Interview, reviewing the record and reviewing Student’s developmental history, Dr. Hurley administered the following assessments: Kaufman Short Neuropsychological Assessment Procedure (K-SNAP); Children’s Color Trails Test (CCTT), California Verbal Learning Test-Children’s Version (CVLT-C), Bender Gestalt-II; Behavior Rating Inventory of Executive Function (BRIEF)-parent form; Woodcock-Johnson Test of Cognitive Ability-Third Edition (WJCOG); Woodcock-Johnson Test of Achievement-Third Edition (WJACH); Test of Reading Comprehension-Third Edition (TORC-3); Test of Written Language-Third Edition (A) (TOWL-3); and the Behavior Assessment System for Children-Second Edition (BASC-2)- Parent form. (SE-4) In the K-SNAP Student obtained average performance scores across the battery suggesting no neurological impairment. (SE-4)
· In the CCTT administered by Dr. Hurley, Student required a lengthier period of time than same age peers to complete the test, resulting in a lower score (standard score of 82), which is considered mildly impaired. Student however, obtained an average score in the CCTT-2, a more complex test requiring sequencing skills, inhibition-disinhibition, and divided attention skills. (SE-4) Attention, memory and learning were assessed using the CVLT-C. In this test she fell in the below average range compared to other peers her age though her consistency index was average, suggesting that she was able to use some type of organizational strategy in her approach when asked over multiple trials to repeat words she remembered from those given. Student’s performance in the long delay free recall trial was extremely low even when given cues to increase recall. In the Recognition Discriminability (the best recognition memory measure) Student’s performance was extremely low. (SE-4)
· Visual memory and visual motor integration skills were assessed by using the Bender-Gestalt-II, both tests yielding test scores within the average range. (SE-4) Additionally, the BRIEF and BASC-2 completed by Parents also showed Student to be a well developed young lady with no concerns in the areas of behavior regulation or metacognition. (SE-4)
· Student’s cognitive functioning as assessed by the WJCOG and the WJACH rendered scores within “a large range of ability across different cognitive areas.” Student’s performance scores fell between the very low and the superior range across cognitive abilities, but the overall ability fell within the low average range according to Dr. Hurley. (SE-4) Cognitive efficiency was an area that fell within the very low range, with scores falling within the average range in the Thinking Ability, Verbal Ability, and Delayed Recall measures. In the Phonemic Awareness area she scored in the average to above average range. Given the variation in the cognitive profile Dr. Hurley opined that the results “were not the best descriptor of Student’s cognitive profile.” (SE-4)
· Student’s Achievement functioning was measured by the TORC-3 and the TOWL-3. She obtained low average to poor scores in the reading comprehension measures flagging this as an area of concern. (SE-4) Regarding written expression, Student’s scores in the WJACH and the Dolch reading list placed her in the low average range. Test scores also show her to possess low average decoding skills. The broad written language portion of the WJACH placed Student in the low range. Her performance on the TOWL-3 suggests that she needs remediation in her written language profile. (SE-4)
· Dr. Hurley found that Student presented significant difficulty in encoding verbal information, which she explained was “the process of placing information into memory.” (SE-4) Dr. Hurley explained that, “a child who has problems identifying the correct words, even when they are given to her, probably has not adequately stored the words in memory in the first place.” (SE-4)
· Overall, Dr. Hurley concluded that Student presented no neurological impairment or deficits in executive functioning. Similarly, she presented no concerns regarding personality or behavioral issues. (SE-4) She further concluded that,
Although there were no concerns regarding visual motor integration, visual-spatial thinking was a concern. [Student] did not demonstrate deficits in visual memory, but there were many areas of concern regarding verbal memory and attention. [Student’s] initial auditory attention span was poor, as was her use of semantic clustering (effective recall strategy). She demonstrated a passive learning style, and very low recognition memory. [Student’s] recall, whether free or cued, whether after a short or long delay, was impaired. Although categorical cues aided her recall, her performance was still weak. [Student] experienced significant difficulty in encoding verbal information into memory. Another significant concern is [Student’s] Cognitive Efficiency, or automatic cognitive processing. These cognitive deficits indicate a learning disability and impact academic achievement.
Within the achievement profile [Student] demonstrated average Oral language and Math, but had deficits in reading and writing. Within the reading profile [Student] had difficulty with decoding and comprehension, specifically the understanding of words associated with school subject matter, general vocabulary, and ordering and understanding components of paragraphs. Within the written profile [Student] demonstrated low average production and quality of expression. In addition, her spelling and punctuation were deficient, and impacted her writing. [Student] has not mastered vowel usage or the use of homophones. Although her spontaneous writing is good, her contrived writing is weak, and needs to be addressed. The achievement testing also found that [Student] has difficulty with fluency in reading, writing and math. Although her fluency is slow in reading and writing, resulting in fewer errors, her fluency in math was quick, resulting in more errors. Her pace as well as her errors will result in low scores on timed tasks. The results of this evaluation, when reviewing [Student’s] history, and current evaluation results indicate that she has a learning disability, which will need to be addressed through educational recommendations. (SE-4)
· Dr. Hurley’s numerous recommendations included further evaluations in the areas of speech and language, occupational therapy and an eye exam. (SE-4) She further recommended that Student be given additional time to complete tasks, reminders to check her work for accuracy, reduced visual information and visual distractions, emphasize key words for visual cueing, highlight information, and supplement visually presented material with verbal input. To address issues of memory and retrieval, Dr. Hurley recommended “sequential step by step presentation of information, moving from the concrete to the abstract; repetition, review, and rehearsal of information; reduce distractions while encoding information; use of multi-modal instruction; provide recognition type exams; chunking of information; corrective feedback; instruction at a slower pace that covers material at a reduced rate, and allows time for review and rehearsal of information; use of a tape recorder as a memory aid; and she should be taught memory strategies.” (SE-4) Student should continue to have instruction in decoding of words with emphasis on multi-syllabic words and use of a place card to aid with tracking. To assist with reading comprehension instruction should be provided at four levels, literal, inferential, critical and creative, with the use of strategies like the K-W-L (Know-Want to Learn-Learned), activating prior knowledge, organizational structures, SQ3R, vocabulary building, and others. (SE-4) To address spelling and writing issues, Dr. Hurley recommended that Student continue to be taught the spelling rules, use a dictionary or a spell checker, use a word processor, incorporate spelling words into the curriculum, encourage Student to check written work for errors, punctuation and style. Corrective activities should be incorporated to address Student’s b/d reversals and help Student increase the quality and expression in writing. Dr. Hurley recommended a writing model that addressed prewriting, writing and post-writing. (SE-4) The evaluation written by Dr. Hurley provides no recommendations for any specific type of program or placement for Student.
· Student’s Team convened on July 21, 2005 to discuss Student’s three-year re-evaluation and the independent evaluation performed during 20054 , Student’s progress at Carroll, and to draft an IEP. (SE-5) The invitations for participation were sent out between June 30 and July 1, 2005. (SE-6) Student’s Team, including Dr. Benkov and Dr. Hurley, determined that Student continued to present a specific learning disability in written language and reading. (SE-6; SE-8; Benkov) A representative from Carroll was invited but the record does not show whether (s)he attended. (SE-6) The Team agreed that Student required “direct specially designed instruction, related services (e.g. OT) as well as classroom accommodations and modifications.” (SE-8) The Team further concluded that Student was not making effective progress at Carroll. As a result, a program in Hanover was proposed that combined participation in a substantially separate classroom with partial inclusion (with support) for Science and Social Studies, to address Student’s issues in reading, written language, math, spelling and visual perception. Summer tutorial services 90 minutes each 3 times per week for seven weeks to address reading, writing and spelling was also offered. While there was consensus among the participants regarding the IEP goals, objectives, modifications and accommodations there was no agreement regarding placement and service delivery. (SE-8; SE-9)
· The vision statement in this IEP strives to have Student improve her written language and reading skills, become a more independent learner, be able to increase the volume and complexity of her work and feel good about herself.(SE-8; SE-9)
· The July 21, 2005 IEP, which covered the period from July 21, 2005 through July 21, 2006 offered Student the following services: Consultation services once per week for 15 minutes between the special education teacher and Parents; consultation between the classroom teacher and the support provider once per week for 45 minutes; and content support for Science and Social Studies by the special education staff 10 times per week for 45 minutes each. Direct services in other settings whether small group or individual included: reading by the special education staff twice per week 60 minutes each; English language arts by the special education staff five times per week 45 minutes each; multi-sensory reading by the special education teacher five times per week 45 minutes each; math by the special education teacher five times per week 45 minutes each; and occupational therapy by the OT staff once per week for 30 minutes. (SE-9) All services, including the summer tutorial, were to be provided by special education staff trained in a multi-sensory approach, at the Hanover Middle School. (SE-9)
· On or about August 9, 2005, Hanover forwarded to Parents the proposed IEP program and placement forms for the 2005-2006 school year. (SE-8)
· On August 12, 2005, Parents hand delivered a letter to Mr. Shillinglaw to inform him that Student would not be attending Hanover for the 2005-2006 school year as Parents were continuing her enrollment at Carroll. (SE-11) Parents further requested that Hanover fund Parents’ unilateral placement at Carroll. ( Id .)
· Mr. Shillinglaw, Director of Pupil Personnel Services at Hanover, wrote to Parents on August 12, 2005, as a follow up to the Team meeting of July 2005. (SE-10) He attempted to alleviate some of Parents’ concerns regarding staff, program, services and a transition back into Hanover. (SE-10) He also presented some options regarding provision of rule-based reading instruction (Orton-Gillingham and Lindamood Bell) and invited Parents and their independent evaluator, Dr. Benkov, to observe the proposed program. (SE-10) Via a separate letter also dated August 12 th , he once again forwarded to Parents a consent for evaluation form seeking permission for Hanover to conduct a speech and language as well as an occupational evaluation of Student. (SE-10)
· On August 23, 2005, Mr. Shillinglaw informed Parents that given the discussions regarding Student’s abilities and deficiencies, her performance at Carroll during the previous year, Parents’ stated dissatisfaction with the Carroll program, the result of the evaluations, the proposed program and placement at Hanover, Hanover would not fund Student’s program at Carroll. (SE-12) Mr. Shillinglaw further stated that he would take Parents’ letter as a rejection of the proposed IEP for the 2005-2006 school year. ( Id. ) On that date, Hanover again wrote to Parents seeking consent to conduct the speech and language, vision and occupational therapy evaluations. (SE-12) On August 26 th , Hanover requested this Hearing before the BSEA.
· Following a series of meetings and discussions with Mr. Steve Wilkins of Carroll, during the 2005 summer, Parents wrote to the Chairman of the Board at Carroll on August 29, 2005. (SE-13; Mother, Wilkins) In this letter, they raised serious concerns and frustration regarding Student’s lack of progress during the previous two years. When they enrolled Student in Carroll they were following the recommendations of Dr. Lasoski, a previous evaluator, because of Carroll’s ability to offer Student one-on-one Orton-Gillingham one-hour daily as well as immersion in a language-based, small class setting with peers who carried a similar diagnosis and possessed similar abilities to Student. While Parents had met their share of the responsibility regarding what happened after school hours, Carroll decided to drop the one-on-one Orton-Gillingham over parental objection, and substituted a fluency class four months into Student’s placement at Carroll. As a result, objective testing conducted by Hanover and by Parents’ independent evaluator showed that Student had made no meaningful effective progress while at Carroll. ( Id .) Parents requested that Carroll offer Student a tuition free year and reimburse Parents for traveling expenses between their home in Hanover and Carroll, located in Lincoln, MA for the 2005-2006 school year. (SE-13; Mother, Wilkins) Carroll agreed to reinstate the one-on-one one hour daily Orton-Gillingham instruction but declined to cover Student’s tuition or reimburse Parents for transportation. (Wilkins)
· In a correspondence dated October 13, 2005, Parents requested that the BSEA order Hanover to reimburse them for their unilateral placement of Student at Carroll for the 2005-2006 school year, and also reimburse them for transportation.5
· On November 3, 2005, Hanover forwarded to Parents another evaluation consent form to conduct a speech and language evaluation. (SE-14) Parents consented to the evaluation on November 7, 2005. (SE-15)
· Stacie Barlow, MS CCC-SLP, conducted the Speech and Language evaluation on behalf of Hanover on November 18, 2005. (SE-16) Ms. Barlow reviewed Student’s prior evaluations, interviewed Student and assessed her using a number of formal instruments. Student reported that reading is the hardest thing for her to do in school and that she will only read a book when she is required to for class. (SE-16) In the area of oral language, as assessed by the CELF-4, Student scored within the solid average range in core language ability. Receptive language testing was also within the overall average range. In the Word Associations subtest, Student demonstrated slight difficulty in her ability to make associations between words and scored in the borderline range. Student demonstrated the need for processing time on that sub-test. Other receptive tasks included the ability to follow directions. Student was able to comprehend and follow increasingly longer and complex directions. (SE-16)
· Student’s expressive language skills were found to be in the solid average range. (SE-16) In prior testing, Student demonstrated some difficulty in processing and immediate/delayed recall of words. The results of Ms. Barlow’s testing demonstrates improved ability in this area when provided with meaningful information to aid Student’s recall. Student showed a strong ability to formulate increasingly longer oral sentences when provided with a word or picture clue. (SE-16) Student’s language content and language memory scores were also within the average range. Student scored within the solid average range for ability to understand word meanings and oral passages. On an assessment of higher-level language processing, the CASL, Student scored within the average range of ability on tests that look for understanding of the intended message of a speaker. (SE-16) She also demonstrated average ability to understand non-literal language and to infer the meaning of a word or phrase when the direct meaning is not provided. (SE-16)
· Ms. Barlow administered the Test of Word Finding because of concerns about word retrieval raised by prior testing. (SE-16) Student scored within the average range for this test. She was classified as a “slow, but accurate ‘namer.’” Student was given the word associations sub-test of the CELF-4. Although she scored well above the expected criterion for the test, she did not perform the subtest in an efficient manner. Student’s working memory abilities were found to be in the borderline range, consistent with previous testing. (SE-16) She had difficulty recalling numbers backward as opposed to an average ability to recall strings of numbers forward. She showed difficulty manipulating information in her mind. She showed strength in vocabulary understanding. In another test of working memory, Student was asked to process and retrieve fixed internalized sequences in varying order while being timed. Student was able to recall these sets in the correct order. (SE-16) However, as soon as she was required to perform mental manipulation she demonstrated significant confusion, highlighting difficulty in the area of manipulating information fluently in her mind. (SE-16)
· Student demonstrated overall average ability in phonological awareness and a lower average score in her ability to manipulate and segment sounds or word parts. (SE-16) She showed an above average ability to blend syllables or sounds into words. Varying scores in this area indicate that Student’s ability continues to develop. Student demonstrated average ability in the area of phonological memory. Scores for rapid automatic processing were within the average range, indicating improvement since previous testing. (SE-16) Student scored “within one standard deviation of the norm, albeit within the lower end” on her ability to read individual real words and decodable non-words fluently. She was able to read the real words with more fluency than the non-words. During the non-word portion of the test, she needed to slow down her reading significantly. She was unable to quickly read even very short non-words. (SE-16) She showed significant difficulty on five letter words that included vowel combinations or consonant blends. Ms. Barlow concluded that Student had not yet mastered and generalized her understanding of syllable types. She reported that Student cannot fluently or automatically apply rules for decoding, despite her knowledge of sound/symbol correspondence as shown in prior testing. (S-16)
· Ms. Barlow used the OWLS to assess Student’ written expression. Student received a score within the solid average range. (SE-16) Weaker areas within the test were in spelling and the use of capitalization and punctuation. Student varied in her use of appropriate punctuation. She demonstrated average ability for her age in the linguistic and content areas of written language. (SE-16)
· Ms. Barlow concluded that Student demonstrates solid language abilities with receptive and expressive language skills within the overall average range. (SE-16) Additionally, she is able to comprehend higher-level language processing tasks. Word retrieval abilities and written language skills were in the average range. As seen in prior testing, encoding difficulties hinder Student from conveying language in writing. Phonological awareness skills were within one standard deviation from the norm as were reading fluency skills. Significant difficulties were seen in decoding nonsense words and applying rules for syllable types. She recommended that Student follow a structured and systematic approach to learning rules for decoding, including instruction in the six syllable types. (SE-16) Spelling rules should be directly and systematically taught to her. Ms. Barlow recommended that Student take part in more direct instruction in decoding and encoding strategies by a reading specialist. (SE-16) Ms. Barlow reported seeing difficulties with working memory skills, which appeared to lead to difficulties with mental manipulation of numbers, rote series, determining appropriate associations between words, and holding and segmenting sounds from words. To aid with working memory, she suggested Student should learn strategies such as reauditorization, chunking, visualization, and semantic clustering. She stated that in the classroom Student needs to be consistently reminded of key concepts through visual and auditory cues. (SE-16) She concluded that Student has the underlying language skills to comprehend language, however, working memory difficulties hinder her from holding onto written information in her mind while attempting to decode the remainder of the passage. She recommended direct instruction by a special education teacher or a speech and language pathologist for sixty minutes per week. Additionally, she recommended a consult between the classroom teacher and the service provider. (SE-16)
· David Caplan, Medical Director of Reading Disabilities, and Phyllis Meisel, Clinical Director of Reading Disabilities, at Massachusetts General Hospital wrote a December 7, 2005 letter, addressed “To Whom it May Concern.” (PE-A) The letter stated that Dr. Caplan diagnosed Student with dyslexia on August 6, 2002 and she returned to the unit on November 22, 2005 to review her current reading scores. Dr. Caplan and Julie Bertram, Reading Therapist, reviewed her records and determined that Student “has a severe dyslexia in her encoding of written material.” (PE-A) They stated that her disability adversely affects her ability to spell and her written output. They concluded that her current reading scores represent a gain for her “in that she has not fallen behind her cohort.” (PE-A) They stated that “may be attributed to the instruction she has received at the Carroll School.” They described an appropriate school setting for Student as being one where instruction occurs across the curriculum using a “systematic, sequential, multi-sensory approach to reading, writing, and study skills.” (PE-A) They recommended that most of her teachers be accredited by either the Academy of Orton-Gillingham Practitioners, the International Multi-Sensory Language Education Council, or another program designed to deliver the aforementioned instruction. (PE-A)
· Dr. Benkov observed Student at the Carroll School in December 2005 and observed Hanover’s proposed program on January 13, 2006. She wrote a report of her observations and impressions dated January 25, 2006. (PE-C; SE-48; SE-49)
· In Hanover, Dr. Benkov observed one special education small group language arts class and one regular education social studies class with special education support. Additionally, she spoke to Colleen Madigan regarding the proposed program. Dr. Benkov noted that the program proposed for Student included two periods of small group Orton-Gillingham reading instruction per week. Student would be in small substantially separate classrooms for math and language arts instruction and would be in regular education science and social studies classes with special education support. She detailed her observations in approximately five single-spaced typewritten pages that included quotations from both teacher and students. (PE-C; SE-49)
· Dr. Benkov’s report of her observation at Carroll contains approximately eight single-spaced typewritten pages regarding the two classes she observed. (PE-C; SE-48) At Carroll, Dr. Benkov observed a language arts class and a history class with four students and six students respectively on December 7, 2005. (PE-C; SE-48) She described Student’s schedule as including three periods per day of language arts/literacy instruction (one period emphasizes writing, one period emphasizes reading fluency) including daily Orton-Gillingham instruction. Student’s Orton-Gillingham instructor is certified in Orton-Gillingham and teaches Student’s language arts class. Science and social studies are taught in a “language-based modality, with explicit emphasis on reinforcing and further enhancing literacy and verbal skills in addition to teaching the subject matter.” (PE-C; SE-48)
· Dr. Benkov concluded that Hanover Middle School did not meet Student’s needs as outlined in her neuropsychological exam and reiterated in her observation report. Her testimony was consistent with the observations stated in her report. Dr. Benkov noted the following concerns based upon her observation. She found the program “sorely lacking in appropriate language arts instruction on many levels.” (PE-C) First, she found the proposal of providing Orton-Gillingham instruction twice per week to be inadequate and noted that the proposed group of five children was too large. (PE-C) Additionally, she noted the lack of specific reading instruction beyond the proposed Orton-Gillingham instruction and stated Student requires a class to focus on fluency and comprehension of literature. She found the curriculum to be inappropriate in Hanover, because the language arts class she observed focused on basic elements of grammar that she found to be below Student’s level. In her opinion, Student needs an “intensive language arts curriculum that is far more sophisticated than that one observed at Hanover.” (PE-C) Dr. Benkov found the language arts curriculum at Carroll more appropriate insofar as she had observed Student learning essential writing skills that she is ready to learn. She noted no evidence of integration between the curriculum and the language based literacy skills Student requires in Hanover. (PE-C) She found that the Carroll School integrates the two and noted that the history teacher works on students’ reading and writing issues while teaching the content. She found that the Hanover program did not focus on teaching Student to learn as the Carroll School program did. She described the social studies class at Hanover as “noisy and chaotic” and believed Student would have great difficulty processing information in such a setting. (PE-C) She noted that the Carroll School emphasized independence and reinforcement of effective strategies and worked on developing self-advocacy skills. Finally, she found that the Carroll School small class size encouraged active learning and verbal interaction while Hanover did not. She concluded that the Hanover Middle School program is inappropriate for Student and the Carroll School program is appropriate. (PE-C)
· On January 20, 2006, Melissa L. Evans, MSOTR/L, conducted an Occupational Therapy Evaluation of Student on behalf of Hanover. (SE-26) Ms. Evans administered the Bruininks, Bruininks-Oseretski Test of Motor Proficiency, selected portions ages 4.5-14.5, the Gardner, Test of Visual Motor Skills-Revised (TVMS-R), ages 3-13.11 and t he Beary-Buktenika Developmental Test of Visual Motor Integration (VMI, ages 3-adult) to assess Student’s sensory processing, fine motor, visual motor and visual perceptual skills. (SE-26) Student demonstrated right hand preference and demonstrated solid fine motor skills. (SE-26) She was found to process sensory information well and demonstrated coordination with her motor planning skills. Student’s writing was efficient and smooth when translating manuscript into cursive and her visual motor as well as her visual perceptual skills were appropriately developed. Student was observed to make corrections to her written output when appropriate. Ms. Evans found Student to perform well in all areas tested and recommended simple accommodations such as an enlarged pencil grip or the use of scanning strategies could be used as needed in school and at home, although Student was successful during the test without these. (SE-26) Student was not found to require occupational therapy services. ( Id .)
· On January 23, 2006, Hanover forwarded to Parents an invitation to participate in a Team meeting to discuss the results of Student’s speech and language evaluation. (SE-21) The meeting took place on January 27, 2006. (SE-21)
· Student’s program at the Carroll School for the past three years consists of instruction provided in a small group language-based program, with a high teacher to student ratio, and individual rule-based reading or fluency instruction. (Wilkins, Colahan, Mother) The language-based techniques are integrated across all areas of the curriculum in all settings throughout the day, with emphasis on metagognitive skills development and acquisition of reading skills. (SE-1; Benkov, Mother, Colahan) None of Student’s groupings this year is larger than 5 students to one teacher. (Colahan) In addition to receiving Math, History and Science, Student receives two language arts classes per day and one, one-on-one class in Orton-Gillingham instruction daily6 . (PE-Q; Colahan) All of her periods for the aforementioned subjects run for 50 minutes. (Colahan) Carroll is an approved special education school in Massachusetts and it follows the Massachusetts Curriculum Frameworks.
· Student is reported to have been making progress regarding the development of literacy skills, independent learning skills and overall self-confidence this year. (SE-1; SE-4; Mother, Benkov, Colahan) Mr. Steve Wilkins attributed Student’s growth to the amount of individualized Orton-Gillingham instruction Student was receiving, combined with the language-based classroom setting. (Wilkins, Colahan, Mother)
· Electronic mail exchanges dated January 23, 2006, between Mary Ellen Frechette, Controller/Compliance Officer at Carroll and Student’s teacher at that school state that in order to assist Parents in obtaining funding from Hanover, since Student’s testing results do not evidence real growth, she should indicate what teaching methods benefit Student and suggests that Ms. Collahan “paint a picture” of how Carroll can assist Student in a way public school cannot. (SE-27A; SE-31) Ms. Frechett requested that the information be completed in a DOE Educational Assessment Form Part B. Ms. Collahan completed the form and requested feedback regarding whether the information provided satisfied Ms. Frechette’s expectations who in turn suggested that information regarding specific techniques used with Student be added such as cueing, or Orton-Gillingham techniques that worked for Student. (SE-27B; SE-27C) On January 24, 2006, Ms. Colahan suggested the following:
Using a marker to keep her place while reading.
Dividing words into syllables to decode and spell.
Reminders to check for b/d reversals.
Reminders to check for m/n reversals.
Check list of spelling rules and generalizations.
Check list of proper paragraph formation.
Check list of strategies for comprehension or reading passages.
Plot charts for comprehension of literature. (SE-27D)
Ms. Frechette incorporated the above list into Ms. Colahan’s narrative. (SE-27E) Ms. Colahan further stated that Student could read expository passages at grade level with 90% accuracy, she used plot charts and could write eleven sentence process paragraphs but had difficulty applying learned rules, generalizations and techniques to spell words accurately. She also had difficulty using new vocabulary words in her written work and oral speech. (SE-27B; SE-32) She benefited from techniques such as modeling and spiraling back especially on days when she seemed to be unable to access her knowledge. (SE-32)
· Ms. Frechette forwarded the same type of request to Todd Bearson, Student’s Math teacher (SE-28B through D), Paul Loiselle, Science teacher (SE-29A and B) and Connie Spilhaus, History teacher (SE-30A and B) at Carroll. (See also SE-31) Once the progress reports were received, Ms. Frechette again requested that additional techniques be added to the narrative submitted by Mr. Bearson. She specifically suggested adding sequencing, repetition, spiraling back and the use of a non-language approach to the curriculum. (SE-28C) Mr. Bearson made the stated modifications to his narrative. (SE-28D)
· Student’s Team met again on January 27, 2006 to review Student’s speech and language and occupational therapy assessments. (SE-34; SE-35) As a result, Student’s IEP was amended and included the following services: Consultation services once per week for 15 minutes between the special education teacher and Parents; consultation between the classroom teacher and the support provider once per week for 45 minutes; and content support for Science and Social Studies by the special education staff 10 times per week for 45 minutes each. (SE-35) Direct services in other settings whether small group or individual included: reading by the special education staff twice per week 60 minutes each; English Language Arts by the special education staff five times per week 45 minutes each; multi-sensory reading by the special education teacher five times per week 45 minutes each; Math by the special education teacher five times per week 45 minutes each; and academic support twice per week for 30 minutes. (SE-35) This last service, academic support, was added to the IEP and occupational therapy services were dropped. The Team, which included 6 representatives of Hanover and Parents, continued to recommend a partial inclusion program at the Hanover Middle School. (SE-35) This IEP was forwarded to Parents on January 31, 2006. ( Id .) Provision of summer tutoring remains the same as in SE-9. As of the date of the Hearing, Parents had not formally and in writing rejected the IEP although Mother testified that Parents found this IEP, as well as the portions of the program observed by them in Hanover, in January 2006, to be inadequate for their daughter. (Mother)
· Mother believes that Student is not yet ready to return to Hanover because her spelling skills need more improvement, she needs to become more independent in her reading skills, though her reading has improved and she now reads for pleasure, and because her self-esteem would suffer. (SE-4; Mother)
· An Ophthalmology prescription dated December 5, 2005, states that Student “presents with minimal myopia, normal tracking that is not impacting her dyslexia.” A prescription for glasses was given. (PE-P)
CONCLUSIONS OF LAW
The Parties do not dispute that Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act7 and the state special education statute.8 As such, Student is entitled to a free appropriate public education (FAPE).9 Neither her eligibility status nor her entitlement to FAPE is in dispute.
The initial issue before me is whether Student’s needs can be appropriately met through Hanover’s proposed program as amended.
Upon careful consideration of the evidence before me, I find that the program and services offered by Hanover for the 2005-2006 school year as amended (SE-35) with modifications delineated in this decision would offer Student a FAPE in the least restrictive environment appropriate to address her needs. Whether Hanover is able to offer an appropriate program depends on whether it can implement the modifications stated later in this decision. At the Hearing, Hanover argued that if its program were found to require modifications, it would be able to implement any modification ordered. Because I am ordering modifications to Hanover’s program, and since the evidence is persuasive that Carroll is currently providing an appropriate program for Student, I find that Parents are entitled to reimbursement for their unilateral placement of Student at Carroll from the beginning of the 2005-2006 school year until such time as Hanover presents Parents with an IEP consistent with this decision and is prepared to provide said program. In reaching my conclusions and rendering this decision, I rely on the facts delineated in the Findings of Fact section and am therefore, incorporating them by reference. Therefore, I am only providing a summary in this section.
Student is an eleven-year-old girl who lives with her mother, father and siblings in Hanover, Massachusetts. (Mother) She is currently a sixth grader at the Carroll School where she was unilaterally placed by her parents. (Mother) Student has been described by everyone as a delightful, shy, hardworking young woman who tries very hard to do well. She is cooperative and polite. (Mother, Colahan, Benkov, Barlow, Hurley)
She has been diagnosed with severe dyslexia and has been found to present with language learning deficits that affect her comprehension, writing and reading skills. (PE-A; Hurley, Barlow, Benkov) Student functions between the average and low average range of intelligence but her language difficulties require her to receive specialized instruction that is language-based so that she can access the curriculum. (Hurley, Mother, Colahan, Benkov) Reading and writing are particularly challenging due to her difficulties with encoding verbal information, which Dr. Hurley defined as “the process of placing information into memory.” (SE-4; Hurley) Dr. Hurley explained that “a child who has problems identifying the correct words, even when they are given to her, probably has not adequately stored the words in memory in the first place.” (SE-4) Ms. Barlow and Dr. Benkov agreed that Student had difficulties with working memory, encoding and decoding skills. (SE-1; PE-B2; SE-16) Dr. Benkov opined that Student struggled most with two skills: (a) reading/decoding and (b) cognitive processing, or the ability to take in auditory information and organize it. (SE-3; PE-B1; Benkov) Ms. Barlow found that Student’s working memory issues lead to difficulties with mental manipulation of numbers, rote series, determining appropriate associations between words and holding and segmenting sounds from words. (SE-16) These working memory difficulties hinder Student from holding onto written information in her mind while attempting to decode the remainder of a passage. ( Id .)
Student has issues with fluency, word retrieval and organization of language, misreads words and struggles with comprehension. Her inferential skills are also poorly developed. (SE-1; SE-4; PE-B2; SE-9) She struggles to store and recall information she hears and possesses poor content area vocabulary which impacts her ability to acquire and demonstrate knowledge in all areas of the curriculum. (SE-9) Student also has difficulty with writing skills, spelling, sight vocabulary, and visual memory. Copying from a board or a paper is difficult for Student, she makes spelling and punctuation errors and although she has good ideas to develop a story, her writing is compromised by her difficulty in writing logical sentences. She requires significant scaffolding when writing. (SE-9)
Lastly, Mother and Dr. Benkov saw an overlap between learning disabilities and emotional functioning raising concerns that Student was potentially vulnerable to low self-esteem and lack of a sense of efficacy. (Benkov, Mother) However, all of the testimony in this regard is consistent that Student has made progress in this area, and that although she is shy and her style is that of a “passive learner”, she has become more confident and optimistic, and will speak out when she is in an environment comfortable to her where she trusts the adults around her. (Benkov, Mother, Colahan)
To address the above issues a significant amount of accommodations and instructional modifications are needed, as were recommended by Dr. Hurley in SE-4, Ms. Colahan in SE-27, Ms. Barlow in SE-16, as outlined in the Fact section of this decision, and consistent with their testimony, as well as those delineated in Hanover’s proposed IEP (SE-9) and IEP amendment (SE-35) covering the 2005-2006 school year. (Hurley, Colahan, Barlow) Many of these were consistent with recom-mendations made by Dr. Benkov. (Benkov’s SE-1 and SE-3)
As an eligible student, Student is entitled to receive from Hanover a FAPE that offers an individualized education program (IEP) tailored to address her unique needs10 in a way reasonably calculated to enable the student to make meaningful11 and effective12 educational progress in the least restrictive environment appropriate to meet her needs consistent with state and federal special education law and regulations.13 The s pecial education program and services designed for a particular student must be geared toward developing that particular individual’s educational potential .14 Educational progress is then measured in relation to the potential of the particular student.15 While school districts are not responsible to maximize an individual’s potential by offering the best education, districts must offer students programs and services that will allow them to make meaningful, effective progress.16
The first issue before me is whether the program and specialized services embodied in Hanover’s proposed IEP for the 2005-2006 school year is consistent with this legal standard, given Student’s deficits. That is, whether the proposed program and placement available to Student as of July 2005 (SE-9), at the time Parents faced the decision of whether to return Student to Hanover, afforded Student a FAPE and an opportunity to make meaningful effective progress in the least restrictive environment. This IEP was slightly modified in January 2006. (SE-35) The January Team included 6 representatives of Hanover and Parents. (SE-35)
The IEPs in question, SE-9 and SE-35, offer Student a partial inclusion program at the Hanover Middle School, inclusive of 15 minutes per week consultation services between the special education teacher and Parents and 45 minutes per week between the classroom teacher and the support provider; content support for Science and Social Studies by the special education staff 10 times per week for 45 minutes; small group direct services in other settings for reading twice per week for 60 minutes each, and English Language Arts, Math and multi-sensory reading daily for 45 minutes each, by the special education staff. (SE-9; SE-35) The IEP also offered academic support twice per week for 30 minutes each. (SE-35) This last service, academic support, was added to the services in SE-35 and occupational services were dropped. Both IEPs offer a three-day per week, 90 minute per day, summer tutorial for seven-weeks, with a staff specifically trained in a multi-sensory approach. (SE-35)
At the outset I must address the issues regarding the challenges made by Dr. Hurley with respect to the reliability of Dr. Benkov’s evaluation and analysis. Dr. Hurley was persuasive that there are some issues regarding the reliability of Dr. Benkov’s testing. Specifically, Dr. Benkov used outdated tests17 , failed to use the prescribed forms for scoring or to collect data, methods of scoring were suspect,18 she did not test the limits using the appropriate basals and ceilings19 and used grade-based percentiles instead of age-based percentiles on the Woodcock-Johnson.20 (SE-22, SE-23; SE-24; SE-36 through SE-47; Hurley) When confronted with these allegations, Dr. Benkov testified that with respect to the challenged tests that were outdated, she had used the information for qualitative analysis and that she had not relied on them in reaching her conclusions. (Benkov) Dr. Benkov also stated that her grade equivalent scores were in a form that she had not included, although she admitted to receiving a subpoena duces tecum (for documents) prior to the Hearing. (Benkov) Dr. Benkov’s statements are somewhat suspect. When asked on June 13, 2005, by Dr. Hurley, to state which tests Dr. Benkov had administered, Dr. Benkov provided the information but then proceeded to re-test Student using the updated or correct versions of at least three tests. She claimed that she did not have them when she first tested Student. Dr. Benkov administered the Verbal Learning Design Memory and Story Memory subtests of the WRAML-2, the TOWL-3 writing sample (spaceship) and the Design Copying subtest of the NEPSY on June 24 th . (SE-A, B, C, and D) While the list of all the tests she administered appeared in her final report, these tests were not mentioned in her Report Summary received by Hanover on June 9, 2005. (SE-1; SE-3)
A great deal of time was spent by both experts regarding the challenges to each specific test. I found the testimony of Dr. Hurley and Ms. Barlow to be credible in this respect. Therefore, while Dr. Benkov’s evaluation was helpful regarding her chronology, review of records, interviews, and personal observations, I cannot rely on her test results and question the reliability of her testimony. Her statements are only considered credible where they serve to corroborate information provided by another witness. As a result, Hanover shall not reimburse Parents for any expenses associated with the testimony of Dr. Benkov, including her preparation time or presence at the hearing.
With respect to Dr. Hurley, while she had plenty to say regarding Dr. Benkov’s testing, she was guarded and offered no depth or specificity at all with respect to actual implementation of her recommendations in Hanover, even when prompted. This rendered her testimony credible but limited in its usefulness to me. I find Dr. Hurley’s testing, results and recommendations to be the most helpful aspect of her testimony. I further found Ms. Colahan and Mr. Wilkins testimony regarding program and placement credible and useful in reaching my conclusions.
Dr. Hurley’s and Dr. Benkov’s recommendations were similar with respect to the services to be provided but differed regarding frequency of services, the setting and the necessary qualifications of the service providers. (Benkov, Hurley) Dr. Benkov’s findings and recommendations regarding Student’s learning style and needs are similar to those of Dr. Hurley. (Benkov, SE-3; SE-4) There was disagreement between them regarding their findings as to whether Student struggles with sight vocabulary and visual memory, as well as her need for a distraction-free environment and provision of emotional support. (Benkov, Hurley) Another source of disagreement between them concerned Student’s cognitive ability. Dr. Benkov finds Student to have at least average cognitive ability, while Dr. Hurley concluded that Student’s cognitive ability is low average. (Benkov, Hurley) Given the totality of the evidence in this case, I find their difference of opinion in this regard not to be substantial and therefore, not material to the final outcome. Their major source of disagreement was the placement recommendation. Dr. Hurley supported partial inclusion in Hanover while Dr. Benkov supported Carroll. (Hurley, Benkov) The evidence is persuasive that Carroll is the appropriate placement at this time.
To ascertain the appropriateness of the placement in Hanover, I start by looking at Dr. Hurley’s and Ms. Barlow’s findings. Dr. Hurley’s evaluation found that Student presented deficits with cognitive efficiency and fluency; she demonstrated a weakness in visual-spatial thinking; verbal memory and attention were areas of concern; the CVLT-C and other measuring instruments for memory and retrieval demonstrated issues in this area. (SE-4; Hurley) According to Dr. Hurley, Student’s “initial auditory attention span was poor as was her use of semantic clustering (effective recall strategy)… [Student] demonstrated a passive learning style and very low recognition memory… her recall, whether free or cued, whether after a short or long delay was impaired.” ( Id .) Student presented deficits with encoding verbal information into memory, and she evidenced problems with decoding and comprehension “specifically the understanding of words associated with school subject matter, general vocabulary, and ordering and understanding components of paragraphs.” Dr. Hurley recommended that more attention be paid to the area of comprehension. (SE-4; Hurley) Spelling, punctuation and style were areas that required attention regarding writing skills, as well as quality and expression. Student has not mastered vowel usage or the use of homophones. She also evidenced deficits with fluency in math, reading and writing. Dr. Hurley stated that all of these deficits impact Student’s academic achievement. (SE-4; Hurly)
To address Student’s working memory, decoding and encoding difficulties in the classroom, student would need to be reminded of key concepts consistently through visual and auditory cues. (SE-16; Barlow) To address the aforementioned difficulties, Ms. Barlow further recommended that Student learn strategies such as reauditorization, chunking, visualization and semantic clustering. (SE-16; Barlow) These should be taught through direct instruction by a special education teacher or a speech and language pathologist. Ms. Barlow also recommended that there be consultation between the classroom teacher and the service provider responsible for said instruction. ( Id .) The frequency of the strategy instruction should be once per week for sixty minutes. (SE-16; Barlow) As discussed below, I find that this last recommendation is not supported by the evidence when one considers where Student was from an educational standpoint by the end of the 2004-2005 school year.
In the spring of 2005, Student was completing the 5 th grade in Carroll where she had been unilaterally placed by Parents. By the end of the year she had made little progress in that program. Parents and Carroll staff attributed her lack of progress to the fact that her fluency instruction had been substituted for daily Orton-Gillingham instruction. (Wilkins, Mother, Benkov, Colahan) Dr. Benkov and Dr. Hurley’s evaluations of Student, which took place between January and July 2005, offered evidence of Student’s lack of progress even when she had been immersed in a language-based program. (Hurley, Benkov, Wilkins) Confronted with Parents’ serious dissatisfaction with the results of the 2004-2005 school year, Mr. Wilkins admitted Carroll’s failure and agreed to reinstate the daily individual instruction in Orton-Gillingham for Student. The Parties agree that the 2004-2005 program at Carroll was inappropriate to meet Student’s needs. It is against this background that I assess Student’s deficits and what she needs vis a vis the Hanover program.
As described below, and in light of Student’s functioning level in 2005, as well as her performance and needs, the weight of the evidence supports a finding that Student required and continues to require a program focused on language-based instruction. (Colahan, Wilkins, Hurley, Therrien, Barlow, Benkov) The language-based strategies should be implemented throughout the curriculum and across all settings. (Colahan, Wilkins, Benkov) This program must be consistent, structured, unified, and must include instruction in a rule-based reading program as well as ample opportunities for Student to practice her reading and writing skills. (Colahan, Wilkins, Hurley, Therrien, Barlow, Benkov)
Parents’ witnesses credibly testified that Student benefited from instruction in a substantially separate setting, with a low student to teacher ratio, with peers of similar age, cognitive and learning profiles. (Colahan, Wilkins, Benkov) The portion of Hanover’s program that is taught in the substantially separate classroom meets the aforementioned recommendation with respect to the small classroom with low teacher to student ratio. (Therrien, Hurley, Benkov) It is however unclear whether the profile of the proposed peers in Hanover is similar to Student’s. (Colahan, Therrien, Benkov) Ms. Colahan and Dr. Benkov testified that Student is currently able to write an eleven-sentence process paragraph and can read expository passages while the proposed peers were still working on areas that according to Ms. Colahan and Dr. Benkov, Student had already mastered.
Dr. Benkov recommended that Student’s curriculum emphasize explicit teaching of metacognitive skills in a consistent way. Dr. Hurley agreed that the curriculum should include organizational skills, breaking complex tasks into manageable pieces, and highlighting the structure of information and tasks. (Hurley, Benkov) Dr. Benkov noted that it was important for Student’s teachers to be knowledgeable in reading and writing disabilities, and that they should have an understanding of Student’s learning difficulties. (Colahan, Benkov, PE-B1)
Student’s curriculum should emphasize a language-based approach for the acquisition of basic literacy skills with focus on the development of writing and reading skills. (Colahan, Benkov) The focus on language must be consistent and should be reinforced in all classes throughout the day. (Colahan, Benkov) Student benefits when teachers of every subject emphasize the same methodologies, and constantly reinforce independent learning strategies until they become second nature. (Colahan, Benkov) Student responds best to focused and systematic teaching and to lessons directed to the entire class. (Colahan, Benkov) The sequential, step-by-step presentation of information, with tasks broken down into manageable components, would facilitate her taking in of information. (Colahan, Benkov) The evidence supports a finding that both Hanover and Parents believe that Student’s curriculum should be appropriately challenging given Student’s abilities. (Colahan, Benkov, Hurley)
Student needs direct reinforcement of basic writing skills beginning at the level of the word and sentence using a “process approach including exposure and practice in a variety of genres.” The focus should be on brainstorming, outlining, creating a first draft, and editing. (Colahan, Benkov, Hurley, SE-4; PE-B1; SE-1) She also requires rule-based, multi-sensory instruction and work on fluency and comprehension. (Barlow, Hurley, Colahan, Benkov) More specifically, Student needs writing instruction for one period every day, as well as one-on-one Orton-Gillingham reading instruction daily. (Colahan, Wilkins, Benkov) The instruction must focus on the development of decoding and encoding skills, comprehension of a text, and fluency in reading. (Hurley, Barlow, Colahan, Benkov) Her instruction should be delivered in an atmosphere where she can develop trust in the service providers to encourage her participation. (Colahan) Service providers must check with her frequently to ensure that Student is accessing the instruction as she has a passive learning style and does not advocate for herself. (Hurley, Colahan, Benkov)
Parents and Hanover’s staff recommended Student’s participation in a summer program that focuses on reading and writing skills and this was included in the proposed IEP. (SE-9; SE-35) A close liaison between Student’s family and the school has also been recognized as an important component of a successful program for Student. (SE-35; PE-B1) Continued participation in non-academic activities, that include both skill building and relationship building components, which will help to increase her self-esteem are recommended. (PE-B1; Benkov) Currently, Student is involved in gymnastics and tennis. (Mother).
Dr. Benkov did not feel that a substantially separate classroom within a larger school would be appropriate for Student. (PE-B1; Benkov) This position is not persuasive. At the present time, Student is a more independent learner, more mature, she feels capable of doing her work, and she has many friends both in Hanover and at Carroll. (Mother, Benkov, Colahan) Dr. Benkov’s emotional functioning testing and clinical interview showed that Student was emotionally stable, with good reality testing and a strong and well-developed desire to connect to others, as well as the capacity to do so. (SE-3; Benkov, Mother) From a social-emotional standpoint, and assuming that the educational supports recommended are in place, Student would be able to handle the substantially separate classroom in Hanover’s Middle School. Legally, children should be educated in the least restrictive environment appropriate to meet their needs. Therefore, if Hanover offered Student an appropriarte program consistent with this decision, and said program were located in a public school setting, it would be a more desirable program, consistent with the least restrictive environment requirement under federal and state law.
I was greatly impressed with the overall quality of the program in Hanover as well as its teachers and providers, especially Ms. Therrien, Ms. Barlow and Ms. Foss. The evidence and their testimony support a finding that with modifications in the areas I will discuss below, the program can meet Student’s needs. In reaching this conclusion I rely on the description of the program offered by Ms. Barlow, Ms. Foss, Ms. Therrien, comments by Ms. Colahan, Mr. Wilkins, and the observations.
Parents’ major areas of discontent with the Hanover program involve the inclusion piece, uncertainty about the coordination between the inclusion and substantially separate portions of the program, failure to offer the rule-based reading instruction daily, the differences between Student and the proposed peers and whether language- based instruction is being offered. I find merit in some of Parents’ challenges to the Hanover program, and therefore have below, delineated modifications to address these deficiencies.
Dr. Hurley’s and Hanover’s statement that Student belongs in a partial inclusion program, with rule-based reading instruction twice per week in a small group, is inconsistent with the evidence. (Wilkins, Colahan) Assuming arguendo , that as Dr. Hurley states, Student is of low average intelligence, and taking into account her disabilities, current performance, and lack of progress during the 2004-2005 school year when not receiving one-on-one daily Orton-Gillingham (while attending a language-based program), then Student cannot be expected to make meaningful progress in a program that offers less services at a reduced rate than the one Student received at Carroll. At a minimum, an equivalent program that was language-based and offered daily, individualized reading instruction should have been offered.
Dr. Hurley and Dr. Benkov differed on Student’s ability to derive meaningful benefit from the portion of the program that involved supported inclusion. Dr. Hurley opined that Student could handle the level of noise observed in the social science classroom, which included 20 other students, but provided no insight as to how to manage or reduce the distraction in said environment while implementing her recommendations. (Hurley) Hanover proposed that Student participate in an inclusion class for social studies and science. These classes have approximately 20 students, the teacher and an aide. The teacher offers differentiated instruction, which is modified and supported by the aide. (Foss) Testimony was only offered by Ms. Foss, the social studies teacher, but it is reasonable to assume that the science class runs in a similar fashion. Both, the teacher and the aide work with different students during the lesson, which may be carried out in lecture/presentation form, or students can be broken up into cooperative learning groups. Parents and Dr. Benkov observed this last format and were concerned that the instruction did not offer direct teaching that implemented Dr. Hurley’s recommendations at all times. (Foss, Benkov, Mother)
While I was impressed with Ms. Foss, the social studies teacher, I agree with Parents that the manner in which Dr. Hurley’s recommendations will be implemented so that Student does not become “invisible” in that setting, is unclear. (Callahan, Parent, Benkov) I disagree, however, with Parents that it could not be achieved. I found Ms. Foss to be a qualified, knowledgeable professional capable of handling a wide variety of learning styles and needs. She has training in differentiated teaching approaches and nothing in the record suggests that she could not continue to learn and implement new methodologies. (Foss) Moreover, the format of her class is not solely the cooperative group approach. She stated that the cooperative groups happen every several weeks but not every week, and that she also engages in lecture format with questions and answers and opportunities for students to read and write. She also testified that the aide could take a group of students out to an adjacent room when needed. Additionally, Student’s IEP provides for twice per week 30 minute academic support sessions which Student can use to complete a lesson, an exam or to work on any aspect of the lesson.
Also, taking into account Dr. Hurley’s findings, the level of noise in the inclusion rooms during the cooperative groups may present a problem for Student who requires distraction free settings. (Benkov, Colahan) It is likely that Student will require a great deal of attention during these exercises to keep her focused and to check what she is learning given that she is not likely to let others know if she is lost. Furthermore, the evidence is unclear as to how much coordination between the regular education teacher, the aide and the special education teacher takes place as well as, pre-teaching, post-teaching and other recommended techniques. Hanover would be responsible to make whatever accommodations and modifications were needed to ensure that Student could derive meaningful learning from the inclusion experience. On the other hand, the inclusion piece would add a level of academic challenge that could benefit Student if properly implemented. Ms. Colahan testified that Student has difficulty in groups, but in Ms. Colahan’s experience worked well when paired with one other student. (Colahan) The teacher and aide must implement systematic instruction with sufficient opportunities for Student to practice reading, writing or speaking skills in context in the classroom or with a smaller group in the adjacent room. (Benkov) Scaffolding, spiraling back, learning aids to transfer knowledge, opportunities to practice while minimizing distractions should be implemented. (Colahan) To the extent possible, all teachers should use the same structure, graphic organizers, a similar approach and a language-based approach. (Colahan, Benkov)
Under Student’s IEP, Ms. Therrien, Ms. Foss and Ms. Apuzzi would meet once per week for 45 minutes along with the rest of Student’s teachers. (SE-35) Without the benefit of having had Student over the past several years it is difficult for Hanover to understand exactly how to implement all of the modifications recommended by Dr. Hurley. Hanover however, expressed a willingness and desire to provide the necessary modifications. Hanover’s Team must convene inclusive of Dr. Hurley, Ms. Barlow, Ms. Therrien, Ms. Apuzzi and the regular education teachers to finesse the coordination piece so as to ensure that the inclusion piece is more language intensive and the instruction is presented in a manner Student can access with sufficiently frequent opportunities for checking on Student. Opportunities for practicing reading, writing and speaking skills must also be present.
The language arts class was described as small and quiet, with the language-focused lesson directed to all students. (Therrien, Hurley, Colahan, Benkov) Ms. Colahan and Dr. Benkov testified that Student was capable of work beyond the level of the students with whom she would be paired in the substantially separate classroom. The fact that Student may be performing at a higher level does not in and of itself render the class inappropriate for her. In a small setting a lesson may be modified to provide a higher degree of challenge to a student. The issue is whether she is benefiting from the instruction and whether she is making effective progress. If she is, the fact that she is the highest functioning person in the group may help her self-esteem. Ms. Therrien testified that Project Read is used in this setting. Since according to Ms. Colahan Student has already been exposed to this at Carroll, modifications must be made if appropriate. (Therrien, Colahan)
The evidence is persuasive that Hanover’s proposed IEP (SE-9) and IEP amendment (SE-35) do not offer Student the frequency of reading instruction or individualization she requires. (Benkov, Wilkins, Colahan) Under the current IEP, Ms. Apuzzi would be responsible to offer this instruction twice per week 60 minutes each, in a small group setting. (Ms. Apuzzi) She is trained in Project Read and Lindamood Bell. She only works at the middle school twice per week. ( Id .) Past experience with Student shows that when she did not receive the individualized Orton-Gillingham instruction daily, she did not progress effectively. (Hurley, Benkov, Wilkins, Mother) I am persuaded by Ms. Colahan and Dr. Benkov that multi-sensory reading instruction must be delivered one-on-one as opposed to in a group setting, and must occur daily, in order for Student to make effective progress. (Benkov, Colahan, Wilkins) Accordingly, Hanover must modify the IEP to provide this service individually and for at least 45 minutes daily which is the equivalent of what she currently receives at Carroll.21 Lastly, communication between Parents and the school is essential, as Hanover has recognized by offering weekly consultation. (SE-35)
Hanover asserts that it is capable of modifying its IEP as ordered, specifically in reference to the daily opportunities for Orton-Gillingham, Wilson or other types of rule-based reading instruction. It further argued, contrary to Ms. Colahan and Dr. Benkov’s recommendation, that this service need not be offered by a certified reading instructor in the particular method. Hanover relied on a DOE update regarding requirements on teaching licenses for persons engaged in reading instruction issued on May 6, 2005. (SE-56) This update states that licensed teachers with training in a specific intensive reading intervention or methodology may provide that reading intervention. The update provides that “…only licensed teachers who have obtained the appropriate training should provide an intensive reading intervention.” This statement presumes that these trained teachers provide the reading programs in tutorial sessions, working one-on-one with a student or in a small group setting. (SE-56) While having certified reading teachers in the specific methodology would be more beneficial to the recipient, there is no requirement in Massachusetts that the instructor be certified. What becomes essential in determining whether the instruction is appropriate is the amount and quality of the training received by the provider as well as the needs of the particular student. A teacher that is properly trained and who can receive supervision by and/or consultation with a certified professional would meet the State standard. To this extent, Ms. Apuzzi’s exposure to Wilson training material through videotapes cannot be considered sufficient training to offer said instruction. An instructor must be knowledgeable and familiar with the instruction (s)he is responsible to impart if one is to see effective results in the instruction. Otherwise, Student would be denied access to the type of instruction that can yield meaningful progress. Additionally, I was not impressed with Hanover personnel’s lack of knowledge of how Orton-Gillingham actually works. That is, Ms. Apuzzi’s testimony defining incorrectly what a Carroll School “level three or four” actually meant, which compromised her credibility. As was later explained by Ms. Colahan, whom I found to be a credible witness, this is just an internal designation or structure Carroll uses when assessing a student’s command of the Orton-Gillingham methodology as well as his/her ability to apply the rules independently. (Colahan) Ms. Colahan and Mother testified that Student had mastered level three in Orton-Gillingham and was now working on level four. According to Ms. Colahan, students were usually ready to transition out of Carroll by the time they reached level five. (Colahan) She stated that the first four levels are the most important ones. (Colahan)
The credible evidence is persuasive that Hanover’s program as presented to Parents in July 2005 and in January 2006 was inappropriate to meet Student’s needs, but may be modified to render it appropriate. With the above stated modifications, Hanover’s IEP should offer Student sufficient opportunities for “significant learning” that confers “meaningful benefit” through “personalized instruction with sufficient support services to permit the child to benefit educationally”. (See Hendrick Hudson Bd. of Education v. Rowley , 458 U.S. 176, 188-9, 203 (1992); see also Burlington v. Mass. Dept. of Education , 736 F.2d 773, 788 (1 st Cir. 1984))
I now turn to the issue concerning the appropriateness of Carroll’s program.
Parents and their witnesses offered testimony in support of Student’s placement at Carroll. (Mother, Wilkins, Coalahan, Benkov)
The record shows that Parents first requested reimbursement from Hanover on August 12, 2005. (SE-11) Over the summer, Parents vacillated as to whether or not to request reimbursement for their unilateral placement of Student at Carroll. (SE-13) They had made this request to Mr. Wilkins and later wrote to the Carroll Board of Trustees demanding that Carroll offer Student a tuition free year and reimbursement to Parents for transportation, for the 2005-2006 school year. (SE-13) Carroll declined.
Parents are entitled to retroactive reimbursement for expenses associated with a unilateral placement if “1) the IEP and placement proposed by the school are deemed inappropriate, and 2) the placement in the which the parents placed the child is found to be appropriate.” Doe v. West Boylston School Committee , et al., 4 MSER 149, 161 (D. Mass. September 14, 1998) citing School Committee of Town of Burlington v. Dept. of Education of Mass ., 471 U.S. 359, 369-70 (1985). Since Hanover’s proposed programs SE-9 and SE-35, were found to be inappropriate as drafted, and modifications were ordered, I turn to the second prong in Burlington . Pursuant to Doe v. West Boylston School Committee , 4 MSER 149, 161 (D. Mass. September 14, 1998), the placement selected by parents must “provide personalized instruction, with sufficient support services to permit [Student] to benefit educationally. Additionally, the services offered in the private placement must have been reasonably calculated to enable [Student ] to achieve passing marks and advance from grade to grade”. Doe v. West Boylston School Committee , 4 MSER 149, 161 (D. Mass. September 14, 1998) If the public school program is deemed inappropriate, and the private placement was appropriate, the hearing officer may grant any relief (s)he deems appropriate, including reimbursement. Florence County Sch. Dist. Four v. Carter , 510 U.S. 7, 12-13 (1993).
Parents concede and the evidence supports the conclusion that Student did not make effective progress at Carroll during the 2004-2005 school year. (SE-13; Wilkins, Mother) The result of the evaluations conducted in 2005 by Dr. Benkov and Dr. Hurley showed that Student had made little progress during the previous two years at Carroll. They both concluded that Student continued to present with a specific learning disability that impacted her reading, written language and spelling skills. (SE-3; SE-9; Benkov, Hurley) Mr. Wilkins, whom I found to be a credible witness, was quite candid in his recounting of what transpired during the spring and summer of 2005. He also conceded that the 2004-2005 program had been inappropriate. (Wilkins, Mother)
The evidence is persuasive that the program offered to Student by Carroll for the 2005-2006 year corrected the major problem with the previous year’s program, that is, it reinstated the daily one-on-one instruction in Orton-Gillingham. Carroll is a special education approved school in Massachusetts and it follows the Massachusetts Curriculum Frameworks. (Colahan, Wilkins) See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 14 (1993) .
Starting at the beginning of the 2005-2006 school year, Student received direct one-on-one Orton Gillingham instruction nine out of ten possible days for every two-week period.22 (Colahan) After multiple conversations with Carroll personnel and following the recommendation by Dr. Benkov, Parents decided to continue Student’s enrollment at Carroll for the 2005-2006 school year. (Mother, Wilkins)
Dr. Benkov observed the program at Carroll in December 2005. She testified that this program meets Student’s current needs. (Benkov) The program was also observed by Dr. Hurley, Ms. Apuzzi and Ms. Therrien. On the day they observed, a substitute teacher taught the science class, so they did not have an opportunity to observe a typical day for this subject, rendering this portion of their testimony irrelevant. I considered their testimony with respect to their observation of one of the two language arts classes Student attends daily.
At Carroll Student benefits from small class settings (4-6 students) and quiet, distraction-free environments. (Colahan, Mother, Therrien, Apuzzi, Hurley) In general, the teaching at Carroll appeared organized, systematic, and was directed to the class as a whole. The program is language-based, and all students participate in reading aloud (in history as well as language arts). Decoding words, reviewing vocabulary, and writing is practiced and emphasized throughout the day. Students write their own sentences. The Carroll environment is one of high expectations and substantial support by the instructors. (Colahan, Wilkins, Benkov) Dr. Benkov testified that while testing done in 2005 showed that Student’s lack of progress in reading was an area of concern, she opined it was now being addressed appropriately. (Benkov, Colahan, Wilkins)
In January 2006, the teachers at Carroll completed assessment forms at the request of Ms. Frechette, Carroll’s Controller/Compliance Officer. (See SE-27; SE-28; SE-29; SE-30; SE-31) Karen Colahan, Student’s language teacher and tutor, wrote an undated assessment indicating that Student reads expository passages at grade level with 90% accuracy and tends to guess at unfamiliar words based on configuration. She noted that Student’s communication skills seemed age-appropriate, she participated in class once she felt safe and she had a good memory, despite having days when it seemed that she was unable to access her knowledge. (PE-D1) Todd Bearsone, the Math teacher, indicated that Student was working in a fifth grade curriculum. He noted areas on which she was working and progressing. Mr. Bearsone stated that Student was currently a concrete thinker who encountered difficulty and frustration when moved toward abstractions. He noted that she participates appropriately and communicates well with teachers and peers. He recognized her positive attitude and noted that her self-confidence had improved. (PE-D2)
In her January 24, 2006 assessment Connie Spilhaus, Student’s history teacher, wrote that Student was becoming more independent writing from an outline and was making progress expanding sentences to include details. (SE-30B; PE-D3) According to Ms. Spilhaus, Student answered questions correctly when called upon, but rarely volunteered opinions and observations, she did not socialize with others in class, but she was able to work with others when paired up for an activity. Student required that the teacher reach out to her and allow additional time for Student to provide her response. (SE-30B; PE-D3) According to Ms. Spilhaus, Student would “seem almost invisible” in a large classroom setting. (SE-30B; PE-D3)
Ms. Spilhaus described Student as becoming a more independent writer who required continued practice and support. (SE-30B) Student used a “word bank” and was working toward expanding sentences, adding details and developing a more mature writing style. (SE-30B; PE-D3) She indicated growth in vocabulary comprehension. Ms. Spilhaus stated that Student required clear modeling, and editing for grammar and punctuation. (SE-30B; PE-D3) Paul Loiselle, Student’s Science teacher at Carroll, described a student whose “shyness and lack of confidence sometimes ke[pt] her form sharing her ideas and theories, though she ha[d] improved on this throughout the year.” (SE-29B)
While all of the aforementioned assessments report progress and growth, these assessments were completed at the request of Parents and Carroll’s Controller/ Compliance Officer in contemplation of trial. The manner in which they were solicited and later re-arranged casts a shadow over their credibility and reliability. (See SE-27; SE-28; SE-29; SE-30; SE-31) However, none of Hanover’s observers concluded that the program was inappropriate. Ms. Apuzzi and Ms. Therrien suggested alternative ways to approach the classroom situation, but none of them concluded that the instruction in the language-arts class was inappropriate. Furthermore, I found Ms. Colahan, the language arts teacher, with whom Student spends three 50-minute periods per day to be impressive. Ms. Colahan’s testimony regarding her classes and Student’s overall progress was credible and convincing. Mr. Wilkins, whom I also found to be a credible witness, supported the appropriateness of the Carroll program this year. Therefore, I find that for the 2005-2006 school year Carroll has offered Student an appropriate program capable of meeting Student’s needs. Therefore, Parents are entitled to reimbursement from Hanover consistent with this decision.
1. Hanover shall convene the Team and modify its IEP consistent with this decision and shall incorporate the following:
· The Team shall develop a more specific plan to ensure that the inclusion piece (the regular education piece) is language-intensive, that instruction is presented in a manner that Student can access, and that there are frequent opportunities for staff to check on Student. Additionally, the plan must provide opportunities for Student to practice reading, writing and speaking skills across all settings. Dr. Hurley, Ms. Barlow, Ms. Therrien, Ms. Apuzzi and the regular education teachers must be present at the Team meeting. If the regular education teachers and/or the aide require additional training, as assessed by Dr. Hurley and Ms. Barlow, this must be provided.
· Dr. Hurley and Ms. Barlow shall conduct additional observations of the proposed classes at Hanover so that they may provide specific suggestions on how to implement their recommendations for Student across all settings. The number of observations will depend on what Dr. Hurley and Ms. Barlow deem necessary. Dr. Hurley and Ms. Barlow must develop a plan regarding coordination and implementation and must present it to the Team. Additional opportunities for them to observe the classes once the recommendations are implemented shall be built into the plan to ensure that the implementation is appropriate.
· Individual Orton-Gillingham instruction must be offered daily for 45 minutes.
· Hanover must carefully plan coordination between the inclusion and substantially separate portions of Student’s proposed program. To the extent possible, Hanover should use consistent tools and strategies across all settings to assist Student.
· All service delivery staff must be appropriately trained to deliver the service they will be responsible to deliver.
2. Hanover shall reimburse Parents for Student’s placement at Carroll and transportation from the beginning of the 2005-2006 school year, until it offers Parents an IEP consistent with this decision and is prepared to provide said program.
3. Hanover shall not reimburse Parents for any expenses associated with the testimony of Dr. Benkov including her preparation time or presence at the hearing.
So Ordered by the Hearing Officer,
Rosa I. Figueroa
PE-U was marked for identification only and PE-L was replaced with SE-16.
By April/May of Student’s second grade she was performing at the mid-first grade level in reading.
According to Parent and Dr. Benkov, the reason why Student’s evaluation occurred over a period of three months was because of Student’s maternal grandmother’s death. (Mother, Benkov)
Although Hanover received a summary of Dr. Benkov’s evaluation of Student on June 9, 2005, Parents agreed to forgo a Team meeting within 10 days of receipt of that evaluation since the Team would convene on July 21, 2005. (SE-7) Also, via letter dated July 1, 2005, Mr. Shillinglaw, Hanover’s Director of Pupil Personnel Services, sought clarification as to the test instruments used by Dr. Benkov in further evaluations performed by her on June 22 nd , given that the summary of her previous evaluation indicated to him that she had concluded her evaluations earlier in the year. (SE-7) The information regarding Dr. Benkov’s updated tests was included in her final report submitted much later than her summary. (SE-2; SE-3; Benkov) The specific date was not provided.
In this request Parents also asked to be reimbursed for future years. I have jurisdiction over the 2005-2006 school year only.
It was clarified that every other Friday Student does not receive the one-on-one Orton-Gillingham instruction or the afternoon language arts class because students participate in activities. (PE-Q; Colahan)
20 USC 1400 et seq .
MGL c. 71B.
20 U.S.C. 1400 (d)(1)(A), 1412 (a)(1)(A); MGL c. 71B, ss. 1 (definition of FAPE), 2, 3.
E.g., 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 . . . .”); 20 USC 1401(25) (“special education” defined to mean “specially designed instruction . . . to meet the unique needs of a child with a disability . . .”); Honig v. DOE , 484 U.S. 305, 311 (1988) (FAPE must be tailored “to each child’s unique needs”).
Board of Education of Hendrick Hudson Central School Distric v. Rowley, 458 U.S. 176, 192 (1982) (goal of Congress in passing IDEA was to make access to education “meaningful”); Deal v. Hamilton County Board of Education, 104 LRP 59544 (6 th Cir. 2004); (“ IDEA requires an IEP to confer a ‘meaningful educational benefit’ gauged in relation to the potential of the child at issue”); G. by R.G. and A.G. v. Fort Bragg Dependent Schs , 40 IDELR 4 (4th Cir. 2003) (issue is whether the IEP was reasonably calculated to provide student meaningful educational benefit); Weixel v. Board of Education of the City of New York , 287 F.3d 138 (2 nd Cir. 2002) (placement must be “‘reasonably calculated’ to ensure that [student] received a meaningful educational benefit”); Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) (educational benefit must be “meaningful”); Ridgewood Board of Education v. NE for ME , 172 F.3d 238 (3 rd Cir. 1999) (IDEA requires IEP to provide “significant learning” and confer “meaningful benefit”).
Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993) (program must be “reasonably calculated to provide ‘effective results’ and ‘demonstrable improvement’ in the various ‘educational and personal skills identified as special needs’”); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990) (“Congress indubitably desired ‘effective results’ and ‘demonstrable improvement’ for the Act’s beneficiaries”); Burlington v. Department of Education , 736 F.2d 773, 788 (1 st Cir. 1984) (“objective of the federal floor, then, is the achievement of effective results–demonstrable improvement in the educational and personal skills identified as special needs–as a consequence of implementing the proposed IEP”); 603 CMR 28.05(4)(b) (Student’s IEP must be “ designed to enable the student to progress effectively in the content areas of the general curriculum”); 603 CMR 28.02(18) (“ Progress effectively in the general education program shall mean to make documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to chronological age and developmental expectations, the individual educational potential of the child, and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district.”).
See generally In re: Arlington , 37 IDELR 119, 8 MSER 187, 193-195 (SEA MA 2002) (collecting cases and other authorities).
MGL c. 69, s. 1 (“paramount goal of the commonwealth to provide a public education system of sufficient quality to extend to all children the opportunity to reach their full potential ”); MGL c. 71B, s. 1 (“special education” defined to mean “educational programs and assignments . . . designed to develop the educational potential of children with disabilities . . .”); 603 CMR 28.01(3) (identifying the purpose of the state special education regulations as “to ensure that eligible Massachusetts students receive special education services designed to develop the student’s individual educational potential”). See also Mass. Department of Education’s Administrative Advisory SPED 2002-1: Guidance on the change in special education standard of service from “maximum possible development” to “free appropriate public education” (“FAPE”), Effective January 1, 2002, 7 MSER Quarterly Reports 1 (2001) (appearing at www.doe.mass.edu/sped) (Massachusetts Education Reform Act “underscores the Commonwealth’s commitment to assist all students to reach their full educational potential”).
Hendrick Hudson Dist. Bd. of Educ. v. Rowley , 458 U.S. 176, 199, 202 ( court declined to set out a bright-line rule for what satisfies a FAPE, noting that children have different abilities and are therefore capable of different achievements; court adopted an approach that takes into account the potential of the disabled student ); Deal v. Hamilton County Board of Education, 104 LRP 59544 (6 th Cir. 2004); (“ IDEA requires an IEP to confer a ‘meaningful educational benefit’ gauged in relation to the potential of the child at issue”); HW and JW v. Highland Park Board of Education , 104 LRP 40799 (3 rd Cir. 2004) (“benefit must be gauged in relation to the child’s potential”); Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) (progress should be measured with respect to the individual student, not with respect to others); T.R. ex rel. N.R. v. Kingwood Twp. Bd. of Educ., 205 F.3d 572, 578 (3d Cir. 2000) (appropriate education assessed in light of “individual needs and potential”); Ridgewood Board of Education v. NE , 172 F.3d 238 (3 rd Cir. 1999) (“quantum of educational benefit necessary to satisfy IDEA . . .requires a court to consider the potential of the particular disabled student”); Mrs. B. v. Milford Board of Ed. , 103 F.3d 1114, 1122 (2d Cir. 1997) (“child’s academic progress must be viewed in light of the limitations imposed by the child’s disability”); MC v. Central Regional School District , 81 F.3d 389 (3 rd Cir. 1996), cert. denied 519 US 866 (1996) (child’s untapped potential was appropriate basis for residential placement); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990) (“academic potential is one factor to be considered”); Kevin T. v. Elmhurst , 36 IDELR 153 (N.D. Ill. 2002) (“ Court must assess [student’s] intellectual potential, given his disability, and then determine the academic progress [student] made under the IEPs designed and implemented by the District ”).
E.g. Lt. T.B. ex re.l N.B. v. Warwick Sch. Com ., 361 F. 3d 80, 83 (1 st Cir. 2004)(“IDEA does not require a public school to provide what is best for a special needs child, only that it provide an IEP that is ‘reasonably calculated’ to provide an ‘appropriate’ education as defined in federal and state law.”)
Regarding the TOWL, WRML, WIAT. (Hurley)
Regarding the TOWL, Woodcock-Johnson, Wisconsin Card Sorting Test, WISC, Rey Osterrieth Complex Figure, Hooper Visual Organization Test and the NEPSY. (Hurley)
Regarding the Peabody Picture Vocabulary Test, the Expressive Vocabulary Test and the WISC. (Hurley)
Challenges regarding ethical considerations by Dr. Hurley do not belong in this forum and I therefore, decline to address them.
At Carroll Student receives a 50-minute session of individualized Orton-Gillingham 9 days out of every 10 days. This adds up to 450 minutes, which divided by 10 equal, 45 minutes daily.
The nine out of ten possible dates is discussed in electronic mail from Ms. Colahan to Mr. Wilkins regarding Ms. Colahan’s schedule conflict during the PM activity block every other Friday when she is responsible to lead a group of students. (SE-51) Mr. Wilkins’ response agreeing to this can be found in SE-52.