Henry v Everett Public Schools – BSEA # 06-2597
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
This decision is issued pursuant to M.G.L. c.71B and 30A, 20 U.S.C.§1401 et seq ., 29 U.S.C. §794, and the corresponding regulations. A hearing occurred at the Bureau of Special Education Appeals (BSEA) in Malden, MA on May 25, 2006, May 26, 2006 and June 8, 2006. The matter was continued at the request of the Parties on June 8, 2006 to receive and review the written transcription from the hearing. The record closed on July 7, 2006 when written closing arguments were received from both Parties.
Those present for all or part of the hearing were:
Joseph Moldover3 Pediatric Neuropsychologist
Jody Gray Educational Consultant
Jane Bloom Tutor
Trish Orlovsky Parent’s Advocate
Maura Fitzsimmons Science Teacher, Everett Public Schools
Rachel Carney English Teacher, Everett Public Schools
Lauri Wolff Speech/Language Pathologist; Everett Public Schools
Anetta Kelly Director of Special Education, Everett Public Schools
Steven Broder Psychologist, Tri City Mental Health Center
Melissa Fichera Special Education Teacher/Tutor, Everett Public Schools
Mecky Napoli Special Education Liaison, Everett Public Schools
Pat Dailey History Teacher, Everett Public Schools
Nancy Borofsky Attorney for Parent
Kathleen Yaeger Attorney for School District
Carolyn Saad Law Clerk, Murphy, Hesse, Toomey and Lehane
Joan Beron Hearing Officer, BSEA
Thomas Houton Court Stenographer, Catougno Court Reporting
The official record of the hearing consists of Parent’s Exhibits marked P1-P28 and School Exhibits marked S1-59 and approximately 3 days of stenographic recorded oral testimony.
1. Does Henry require compensatory education services as a result of services that were not implemented by Everett?4
2. Did Everett commit procedural violations that deprived Henry of a free appropriate public education (FAPE) in the least restrictive environment (LRE)?
3. If so, does Henry require services in an out of district program such as Landmark5 as compensatory education?
4. Does Everett’s current May 2006-May 2007 Individualized Educational Plan (IEP) for Henry, provide him with a free appropriate public education (FAPE) in the least restrictive environment (LRE)?
5. If so, can Everett implement that IEP?
6. If not, can the IEP be modified to meet Henry’s needs?
7. If not does Henry require an out of district day placement such as Landmark6 to receive a FAPE in the LRE?
FINDINGS OF FACT
1. Henry is a sixteen-year-old boy who currently lives with his Mother and two brothers in Everett, MA (Mother). Henry’s father has not lived with the family since at least 1995 when his parents divorced (Mother, P9, P10). Henry often dresses in an alternative style and can appear very defended and sullen to those who don’t know him (Mother, Bloom). However, Henry has many friends and once you get to know him is very bright and creative and has a wonderful sense of humor (Mother, Bloom, Carney, Napoli). Henry is also very artistic and works in all media, even creating art out of garbage (Mother).
2. Henry received instruction in both French and English at the Ecole Bilingue, a private school in Cambridge, MA from preschool until 3 rd grade (SY 1998-1999) (Mother, P10). In the winter of Henry’s 3 rd grade year (1999) Henry was evaluated due to Mother’s concerns about his writing and his teachers concern that Henry did not interact well with his classmates and had poor organizational skills (P10, P11, P12). Psychological testing showed Henry to be in the Superior range of functioning scoring in the 94 th percentile relative to his peers. In the language areas Henry scored within the 85 th percentile scoring in the superior range in vocabulary definition, was at the 4 th grade level in reading and showed above average ability in reasoning and oral arithmetic. In non-language areas Henry scored within the 97 th percentile. He did however display mild difficulty with fine motor coordination in drawing and penmanship and a mild learning disability in spelling, which the examiner attributed to his fine motor difficulties (P10). Projective screening showed Henry to be somewhat impulsive when things were ambiguous and unstructured and a poor self-image related to abandonment.7 The evaluator (Dr. Lionel Lyon) recommended that Henry receive support services in spelling and handwriting (P10). An out of district occupational therapy evaluation done on April 9, 1999 showed Henry to have at or above average visual motor, visual perceptional, sensory motor and gross motor skills. However, Henry’s writing samples showed heavy pressure, poor spacing, improper letter formation and mixing of upper and lower case letters and printing and cursive which increased as testing progressed and greater demands were placed on him (P11). The private evaluator did not recommend direct occupational therapy (OT) services (P11).
3. Everett convened TEAM meetings on February 22, 1999 and April 30, 1999 (P12). Everett found that Henry was eligible for special education services and developed an IEP for May 1999-May 2000 for resource room assistance for four 30-minute sessions per week to address organizational, handwriting and writing deficits (P12). Mother accepted the IEP (Mother).
4. Henry began attending the Everett Public schools in the 4 th grade (SY 99-00) receiving services pursuant to the May 1999-May 2000 IEP (P9). The TEAM reconvened on October 27, 2000 and developed a 5 th grade IEP continuing the four thirty-minute special education sessions in the resource room to address written language and spelling deficits (P14). Mother informed Everett that Henry was currently being evaluated by an outside source but did accept the IEP on that day (P14).
5. Dr. Raphael Castro conducted a neuropsychological evaluation of Henry on October 20, 2000, October 27, 2000, November 3, 2000 and November 10, 2000 (P9). Henry’s 5 th grade teacher reported that Henry was somewhat below grade level in math and far below grade level in spelling and noted that Henry had the most difficulty staying focused and sitting still for long periods of time (P9). His mother noted significant difficulties in planning and organization (P9). Dr. Castro also noted distractibility during testing and the need for redirection to stay on task as well as disorganization and some rushed and hasty answers to test materials that often resulted in imprecise responses (P9). Similar to former testing Henry displayed superior knowledge in vocabulary and school based knowledge, very superior ability in visual spatial tasks, superior visual-spatial abilities, average to above average reading, reading comprehension and math skills and below average scores in spelling, handwriting and writing (P9, compare P9, P10, P11). He displayed average scores in memory and could recall lengthy orally presented passages; however, following a delay, Henry’s recall skills were below average for his age (P9). Dr. Castro concluded that despite Henry’s strong intellect, he displayed a mild, but significant attentional problem and organizational deficits making him vulnerable to overload in situations where he was required to integrate information from more than one source or in highly stimulating environments or unstructured settings (P9). Dr. Castro concluded that Henry would benefit from significant structure and additional external intervention to maximize his functioning in the academic and behavioral domains (P9) Dr. Castro’s specifically recommended that Henry’s program contain tutoring to teach and reinforce organizational skills, improve writing skills, penmanship and organizational strategies for reading and writing (P9). Dr. Castro also recommended use of technology to address penmanship issues and structure and cues to manage his behavior and work habits and attention. Dr. Castro also recommended consideration of psychopharmological intervention to address attention and integration issues (P9).
6. Henry remained in the Lafayette School in Everett until 8 th grade receiving services under fully accepted IEPs (Mother, see P16). Henry ended 5 th grade (SY 00-01) with A’s and B’s in reading, language, science and social studies, C’s in math and spelling, below average organizational skills and unsatisfactory marks in penmanship; see (P19). In 6 th grade Henry was co-taught, received pull-out support to address writing and organizational skills twice a week and occupational therapy once a week (P14). His grades improved in 6 th grade (SY 01-02) showed steady improvement ending in B averages in all academic classes (P19). Henry scored in the proficient range on the MCAS English and Language Arts however; his 6 th grade MCAS math scores showed a Needs Improvement rating (P20). In 7 th grade (SY 01-02) OT was dropped by agreement of the parties; however, Henry continued to receive two 52-minute pull out sessions to work on organizational skills (P16). Classes were no longer co-taught; see (P16). Henry’s 7 th grade MCAS scores continued to show proficiency in English and Language Arts however, Everett’s 7 th grade assessments show continued deficits in spelling and written language with scores8 at the 6 th and 15th percentile. Henry’s 8 th grade IEP continued the pull-out supportive help two days per week and classes taught by a regular education and special education teacher in English, Math, History and Science once per week (S42).
7. The TEAM reconvened on or about December 12, 2003 to review Henry’s 8 th grade IEP (P2, S42). The TEAM developed a plan maintaining the supportive help in the resource room and adding a special education teacher to bring support to the English, Math, History and Science teachers for one class period per cycle; compare (P2, P16). Henry’s first quarter 8 th grade report card showed an “A” in History, “A-‘s” in English, Science and Pre-Algebra II, and a “B-“ in MCAS math (P19). During the 4 th quarter Henry’s grades fell from an “A” to an “A-“ in History, an “A-“ to a “B” in Pre-Algebra II, an “A-“ to a “C-“ in Science, an “A-“ to a “D+” in English and a “B-“ to a “D” in MCAS Math (P19). While the History teacher indicated that Henry was a hard working student, the English teacher noted that Henry’s effort was minimal and both the Science and Pre-Algebra teachers noted that Henry’s exam grades were inconsistent. Henry’s MCAS math teacher also noted that Henry was achieving below his ability (P19). Henry did score in the proficient range in the 8 th grade MCAS math and science portions (S39). Henry was however able to raise his 8 th grade (SY 03-04) MCAS mathematic score from deficient in 7 th grade to proficient in 8 th grade and also received proficient marks in science and technology (P20, S39).9
8. Henry entered the Everett High School in 9 th grade (SY 04-05) (Mother), see (P19). During the first quarter Henry was taking nine courses and received a “B+” in Algebra I, a “B” in English 1, “B-‘s” in French 1 and Drawing and Painting, a “C+” in Honors World History, a “C-“ in Honors Science and a “D” in Composition.10 Henry’s liaison Ms. Theodoridis and his special education teacher Mr. Ruiz did check in with Henry and his teachers to monitor whether he was making progress (Kelly). However, none of Henry’s academic classes were co-taught with a special education teacher because Henry was the only student on an IEP in these classes and inclusion teachers were not available in Honors classes (Kelly, S36, see also Mother). Henry was also not receiving was not receiving supportive help because his schedule was full and there was no room to give him a supportive help period. Everett offered to schedule the pull out support in place of French or Drawing, two elective courses that Henry could make up in later grades if he chose to but Mother did not want to pull Henry out of either class (Mother, Kelly). Mother estimates that Henry missed about seventy-four (74) sessions of academic support in 9 th grade (Mother). Henry’s teacher noted that he was not making sufficient progress in meeting his IEP goals (S36). During the 2 nd quarter Henry raised his grade in Composition from a “D” to a “C+”, raised his Honors Science grade from a “C-“ to a “C” and his Drawing and Painting grade from a “B-“ to a “B”. However, Henry’s grades fell from a “B” to a “C+” in English, from a “C+” to a “C” in Honors World History and from a “B+” to a “C-“ in Algebra I.
9. A phone meeting occurred in December 16, 2004 between the liaison, Ms. Theoridis, and Mother (Kelly, S55). The liaison told Mother that there was no supportive help available for Henry due to his schedule in Honors classes and the special education teacher spent limited time in the Honors classroom but that Mr. Ruiz was providing some services (S55, Mother, Kelly). The Parties could not come to agreement (Kelly). The Parties informally agreed to reconvene the TEAM midyear at some time during the third quarter (Kelly, S55). The Parties did not put their understanding in writing and the IEP expired in December 2004 (Kelly, see S55). Progress reports in February 2005 indicate that Henry showed a lot of creativity in his writing, but needed to get more organized and keep coming back after school. His math teacher also felt that Henry needed to pay more attention in class and come back for extra help after school. The teachers however did feel that Henry was overall a pleasure to have in class (S35).
10. A TEAM meeting occurred on March 21, 2005 (S59). Present at the TEAM were Mother, four classroom teachers, the classmaster, the guidance counselor, the special education teacher, the special education liaison, the special education director Anetta Kelly and the Assistant Principal (S59, Kelly). Although Everett felt at that time that Henry was no longer eligible for special education services because he was receiving passing grades even without all the services implemented, it agreed to extend eligibility and move up its evaluations (Kelly). The Parties did not develop or amend an IEP at this meeting because evaluations would be conducted (Kelly).
11. Everett conducted Henry’s three-year reevaluation in April and May 2005; see (S 32, S33, S34, Kelly).11 At that time Henry had received third quarter grades raising his marks from a “C-“ to a “C+” in Algebra I, and a “C” to a “B-“ in Honors Science, but dropping from a “B-“ to a “C” in French I, from a “C+” to a “C” in Composition, a “C+” to a ‘C-“ in English 1 and a “C” to a “C-“ in Honors World History (S27).
12. Everett’s speech/language evaluation12 was held over three sessions in mid to late April 2005 (P5/S33). Testing showed average to above average receptive language skills, above average vocabulary, average to above average syntax, and low average phonemic awareness.13 Henry’s greatest areas of weakness were in word retrieval and recall and pragmatics, where he ranged in testing from the 25 th to the 37 th percentile with punctuation, capitalization, spelling and grammar in the 16 th to 25 th percentile. Henry scored the lowest in subtests involving grammatical judgment (the ability to correct grammar in sentences).14 The Speech/Language pathologist did not making any recommendations in her report indicating that eligibility would be discussed at Henry’s upcoming TEAM meeting but did indicate that if anyone had any questions or concerns they could contact her (P5/S33).
13. Everett’s academic testing15 also done in April 2005 similarly showed average to above average reading, math calculation, reading comprehension and math reasoning skills with below average spelling and punctuation displayed by no capitalization on street names, no hyphenation, no apostrophes to show possession which the tester attributed to possible careless errors (S34). When compared to identical testing done by Everett in November 2002, Henry showed slight increases in all of his standard scores (SS) with a slight decrease in calculation.16 (S34, compare P16, P6). However, these increases with the exception of math reasoning and applied problems show less than a ten point spread and do not necessarily indicate growth commensurate with Henry’s cognitive ability, see (Broder). 17
14. On May 2, 2005 Henry received a psychoeducational evaluation from Jeffrey Brenner, a psychologist from the Tri-City Mental Health Center (S32).18 Henry told Dr. Brenner that he had gotten grades in the A-B range in his latter years at Lafayette School but received grades in the B-C range so far in high school. He also told Dr. Brenner that he rarely used his special education services for any help instead using the time in the resource room for getting his homework done when he could not get it done in class. He also told Dr. Brenner that he did not pay attention very well but that he didn’t want to because he could do the work anyway. During testing Henry displayed minimal affect, had some lengthy response latencies and sometimes failed to get things as quickly as what might have been expected. In addition there were instances, especially on some verbal tasks, where Henry gave an “I don’t know” answer when the evaluator thought that if he had given the task a bit more thought he might have earned some credit (S32). Henry earned a full scale IQ of 114 placing him within the High Average range of intellectual functioning (S32). His short-term auditory memory and verbal reasoning ability were generally average while his perceptual-motor ability, visual reasoning ability and ability to work quickly and accurately were better than average.19 . He scored in the 61 st percentile in reading, the 37 th percentile in arithmetic, and the 25 th percentile in spelling on WRAT3 achievement testing (S32). Dr. Brenner noted that Henry rushed through several of the spelling words without much thought and also made careless errors on addition, subtraction and multiplication while achieving success on fractions, decimals and percentages, He concluded that Henry’s work on the reading portion was more indicative of this abilities correctly pronouncing words such as “pseudonym” and “oligarchy” and coming close on more difficult words (S32). Dr. Brenner concluded that Henry’s perceptual-motor skills were somewhat higher than his verbal abilities but that all his scores showed no significant weaknesses. He also noted that issues of motivation and effort and carelessness may have played some role in suppressing his language scores and achievement scores in math and spelling and concluded that while Henry’s performance did not match his potential, there was no evidence to suggest that Henry had a disability that would make him eligible for special education services (S32).
15. A TEAM meeting occurred on May 9, 2005. Present at that TEAM was Henry and Mother, two of Henry’s special education teachers, Henry’s special education liaison, Henry’s guidance counselor, the speech/language pathologist, the school psychologist, the special education coordinator Mr. Barbiti, and the assistant principal (S58). Another TEAM meeting occurred on June 16, 2005 (S30). The members of the TEAM included Henry and Mother, the Science, Math, English and History teachers, the Assistant Principal, the Special Education Teacher, the Special Education Liaison and the Special Education Director, Dr. Brenner, the speech/language pathologist, and the Guidance Counselor (S30). At the time of the TEAM meeting Henry’s grades dropped in French from “B-‘s” to “C’” because he passed his homework in late and his English grades dropped from a “B” in the first quarter to a “C-“ in the fourth quarter because his work lacked thoroughness (P19). He received a C’s in Algebra I, World History and Science with his History teacher noting that his exam grades were inconsistent and Algebra teacher noting that he did not pay attention in class (P19). The Everett members of the TEAM felt that based upon the evaluations Henry no longer met the criteria for continued special education services and that Henry could, but chose not to do his work. Mother believed that Henry had a language-based disability (S29). The TEAM decided to develop an extended evaluation to give Mother time to obtain an independent evaluation to see whether or not a communication disability existed (S29, Kelly). No diagnostic questions were developed nor were any specific evaluations by Everett indicated during the extended evaluation period that ran from June 17, 2005 until August 12, 2005; see (S29, Kelly).
16. Henry’s schedule for the 10 th grade (SY 05-06) at the Everett High School consists of Sculpture, English 10, Geometry, US History, Advanced Biology, French 10, and a Directed Study period (S26). The special education liaison reviewed Henry’s IEP on September 1, 2005 and noticed that it was expired (S21). On September 16, 2005 Everett arranged for Henry to have an additional session of academic support to conform to his last accepted IEP (S21). The change did not account however for an acceptance of two times a week of academic support on a five day cycle instead of a six day cycle (Kelly, Mother).
17. Henry did not show up on the first day of the schedule change (September 21, 2005). Mother and Everett discussed this on Friday, September 23, 2005 as well as Mother’s concerns that Henry was not doing well in Honors Biology (S21, Mother). During Monday and Wednesday of the following week (September 26, 2005, September 28, 2005) the liaison spoke to Henry’s guidance counselor and his Biology teacher and was told that Henry had not completed three major assignments and had not passed in his Science Fair assignment. The liaison relayed this information to Mother on September 28, 2006 and told her that it was imperative that Henry attend academic support to receive help (S21, S25).
18. Mother had Henry tested on September 19, 2005, September 26, 2005, October 3, 2005 and October 11, 2005 by Dr. Joseph Moldover, a pediatric neuropsychologist (S23, P22).20 The extended evaluation was to expire on August 12, 2005, however, Henry remained eligible for special education because the Parties had an oral understanding to keep Henry as eligible until the evaluation was completed (Mother, Kelly). However, Everett did not extend the time period for the extended evaluation in writing; see (S23, P22, Kelly). Dr. Moldover interviewed Henry and Mother, made clinical observations and administered a battery of assessments.21 He also had Mother complete a developmental questionnaire, the Achenbach Child Behavior Checklist and the Behavior Rating Inventory of Executive Functioning. His office gave Mother two Achenbach Teacher forms. Mother chose to give the forms to the science and social studies teacher who returned the forms for Dr. Moldover to review (S23, Moldover). The science teacher reported that Henry was performing at grade level in class, had a good attitude in class and was well behaved but that at times Henry did daydream and had difficulty concentrating often failing to carry out assigned tasks and presented messy work 9S23). Henry’s social studies teacher noted that Henry was performing below grade level and that he had concerns about Henry’s organizational skills as well as his skills in spelling and grammar (S23). Dr. Moldover also reviewed Henry’s most recent IEP and Dr. Brenner’s testing as well as the Speech/language testing from Everett Public Schools (S23). Dr. Moldover also looked at Dr. Castro’s report and some of the older testing for useful background information but did not draw conclusions from them since the reports were not recent (Moldover). Dr. Moldover did not speak to any of Henry’s teachers or observe him in his school placement (Moldover).
During testing Henry presented with a flat affect. He rarely initiated conversation and provided little elaboration on his answers. He did however answer Dr. Moldover’s questions and appeared able to understand the oral tasks presented to him and the test items. In the one-to-one testing situation Henry was able to put forth adequate effort and appeared motivated to perform on tasks but his work rate was slow. He was also able to shirt from one task to another but had difficulty sustaining mental effort over time (S23, Moldover).
Henry showed an increase in cognitive skills on the similarities section of the WISC-IV jumping from a standard score (SS) of 9 to a standard score of 12 (75th percentile) from when Dr. Brenner tested him in May 2005. Henry also jumped from a SS of 12 in May 2005 to a SS of 14 (91 st percentile) showing visual-spatial reasoning skills in the superior range (S23). The testing was duplicated because Dr. Moldover wanted to assess Henry’s consistency in performance in these areas and his level of effort and concluded that both were fine (Moldover).
Dr. Moldover also compared Henry’s WIAT-II scores in spelling and written expression noting that in his testing Henry received a SS of 67 with a grade equivalent of the 3 rd grade 2 nd month compared to a previous SS score of 86 from Dr. Castro in November 2000 showing a grade equivalent of the 3 rd grade 1 st month. Dr. Moldover also noted that although Henry’s written expression scores on the WIAT had jumped from the 2 nd to the 5 th grade, his SS’s on the WIAT-II had dropped from an 85 in November of 2000 to an 81 in May of 2005 and noted significantly below grade average expectations on tasks involving writing sentences and a short essay (S23). Moreover, Dr. Moldover noted that Henry had difficulty planning and organizing his writing and struggled to put his own thoughts on paper in an organized way. Whereas with Ms. Wolff Henry was able to produce a writing sample in fifteen minutes about mammoths and cavemen that contained five paragraphs, a story with more depth, capitals at the beginning of each sentence and a beginning, middle and end, Henry’s performance on a 15 minute writing sample about his feelings on physical education with Dr. Moldover yielded a writing sample in which Henry was only able to generate six sentences containing numerous punctuation and spelling errors with his thoughts presented in a disorganized manner (S23, but see Wolff, S44, compare S61, P28). On a nonstandardized questionnaire that examined Henry’s feelings about his writing ability, Henry told Dr. Moldover that he disliked writing, knew others wrote better than him, was unable to tell if he spells a word incorrectly and noted mistakes in his writing but did not know how to correct them (S23, see also Mother). As such, Dr. Moldover concluded that Henry had a learning disability in written expression (S23, Moldover).
Dr. Moldover also found that, in addition to writing issues, Henry showed a significant gap between his reading fluency and his reading comprehension. When Henry was asked to read orally his reading fluency was in the low average range (SS 7/Grade equivalent 7 th grade 7 th month on the GORT-IV) but noted his reading comprehension to be in the superior range (SS 121, Grade equivalent above 12 th grade on the GSRT) when his reading comprehension was assessed untimed and when given access to multiple choice answers (S23, Moldover).
Dr. Moldover also found that Henry’s previously identified executive functioning issues had become more pronounced as expectations of Henry increased as he became older (S23). On the Delis-Kaplan Executive Function System (D-KEFS) Henry scored in the average to above average range in structured tasks assessing verbal fluency, sorting and color/word interference, but showed impulsive errors which lowered his score (S23, Moldover); however, in addition to tasks that required organization in writing, Henry’s memory skills revealed deficits when no organizational structure was provided (S23, Moldover). For example when given a task that required Henry to remember contextual information over an extended period of time, such as repeating a story with the structure of a narrative, Henry was able to perform in the average range; however, when no structure was provided Henry performed in the below to low average range (S23, Moldover).22 In addition these organizational difficulties correlated with Mother’s report of Henry’s difficulty in task initiation, planning and organizing and working memory and his teacher’s assessment of difficulties in organization as well as Henry’s self assessment of difficulty starting a task and attending to and retrieving information (S23). Dr. Moldover felt that Henry’s strong verbal and non-verbal cognitive abilities helped him to compensate for his organizational difficulties but with the demands of a high school curriculum Henry was at risk for falling further behind his peers if he was not provided with appropriate supports and interventions.
Dr. Moldover recommended that Henry continue to have an IEP on the basis of a specific learning disability in written expression and that he be given direct instruction by a trained person using a structured, curriculum-based approach to organization of complex written material for two sixty-minute sessions per week in a one-to-one or small group setting (S23, Moldover). One program recommended was EmPOWER (S23). EmPOWER however is not the only program that would be appropriate for Henry (Moldover). Dr. Moldover also recommended that Henry receive extended time on tests as needed to compensate for Henry’s slow reading rate, that Henry be allowed to use spell check and not be penalized for spelling errors and that Henry be reevaluated in written language at the end of his 10 th grade year and more intensive approaches be considered if his progress continued to lag. Dr. Moldover did not, and could not, elaborate on those approaches in his report or at hearing (S23, Moldover).
19. Mother met with Dr. Moldover on or about October 11, 2005 to go over the results of his testing (Mother). Mother was devastated by the results, especially those results that showed that Henry was still at a third grade level since his 2000 testing in spelling and only at a fifth grade level in writing and was regressing in relation to his peers (Mother).
20. On October 11, 2005 Mother attended a parent/teacher night at Everett High School (Mother, S22, S24). She told the special education liaison teacher, (Ms.Venezia) she was concerned about Henry’s academic progress and that Henry had been independently tested and shared the results verbally with Ms. Venezia. Ms. Venezia told Mother that Henry was not attending academic support (S24). Mother wrote down the time that Henry was supposed to attend academic support and pulled Henry over to the conversation to make sure that Henry was aware of the time. Mother also asked if Henry could be scheduled for an additional period of academic support and requested that the support time concentrate on writing and asked about implementation of the “Empower” writing program (S24, Mother). Ms. Venezia asked Mother if it would be okay to pull Henry out of one art period per week and this additional period was added the following day and Mother received a written schedule on October 14, 2005 (S24, S15, P29, Mother). Mother also asked the Special Education director if a meeting could be scheduled in November 2005 to discuss the neuropsychological report (P28). Ms. Kelly told Mother that a meeting was scheduled for November 18, 2005. Mother asked that a number of people be present at the TEAM meeting including, Ms. Kelly, the Principal, all of Henry’s current classroom teachers, the guidance counselor (Mr. Enfanto), Ms. Venezia, the Submaster (Mr. Kebrau), all of the former evaluators from April and May 2005 (the psychologist Mr. Brenner, the SLP Ms. Wolff, and the psychologist Ms. Robichard). She also told Ms. Kelly that she did not want the psychologist Dr. Strautin present (P28).
21. Mother and the Assistant Special Education Coordinator Mr. Barbiti spoke on or near October 17, 2005. Mother followed up her conversation with correspondence the following day (P26A, Mother). She told Mr. Barbiti that she had no confidence in the Everett Public School system, especially the special education department. She felt that Dr. Moldover’s testing showed that Henry had made no improvement in five years in spelling and written expression and that constituted gross negligence on the part of the Everett Public School system (P28, Mother). She told Mr. Barbiti that Dr. Moldover said that former IEPs did not address Henry’s needs and that he needed to stay on an IEP that would address executive functioning, organization and writing and that Henry may require 1:1 tutoring by someone outside the Everett School system with specialized expertise (P28). She asked that Everett immediately implement a multisensory writing program such as EMPOWER with documentation each time Henry worked with an educator and to have Henry receive an updated OT evaluation especially looking for sensory issues (P28). Mother also told Mr. Barbiti that she was reconsidering having Henry pulled out of Art to receive an extra session of special education support and asked that he be pulled out of study periods to be given support even if he had two different educators. She further requested daily progress reports for every in-school and after-school session, summer assistance, oral testing in French, and immediate implementation of techniques to improve spelling and written expression (P26A, Mother). Mother told Mr. Barbiti that she expected Mr. Barbiti to review Henry’s current IEP and speak to Ms. Venezia regarding immediate implementation of spelling goals and written expression strategies and expected to hear from him by October 24, 2005 (P28).
22. Mother and Mr. Barbiti spoke on October 24, 2005 (P26). Mother was insulted because Mr. Barbiti told her that he had skimmed Henry’s IEP when he had told Mother that he would read the file last year and was given an extra week to do so (Mother). Mr. Barbiti also told Mother that Henry was meeting with a teacher two times per week but could not offer specifics regarding what the teacher was doing (Mother, P26). Mr. Barbiti told Mother that no changes, such as the addition of spelling goals and a writing plan, would be made until after the TEAM meeting in November 2005 (P26, Mother). Mother believed that since there was an IEP in place and the IEP should have covered these goals they should be implemented immediately and felt that daily documentation of their implementation was appropriate (Mother).
23. On November 4, 2005 Henry missed another session of Academic support and an incident report was written (S20). Henry failed his first quarter Honors Biology class. He received a “C+” in Honors US History II and a B in Geometry, with “C-‘s” in English 2 and French 2, a “B” n Geometry and an “A-“ in Sculpture (S3).
24. Everett received Dr. Moldover’s report in November 2005 (Mother). A TEAM meeting occurred on November 18, 2005 (Orlovsky, Mother). Present at the TEAM meeting was the Special Education Director Anetta Kelly23 , Mother, Henry, the SubMaster, the Special Education Liaison, Mother, Mother’s Advocate Trish Orlovsky24 , Henry’s French, Geometry, History, and English teachers, Henry’s Guidance Counselor and Dr. Steven Broder,25 a psychologist from Tri-City Mental Health who presented Dr. Brenner’s psychoeducational evaluation because Dr. Brenner was no longer with the agency (S18, Broder). The meeting lasted for about three and a half hours (Orlovsky, Mother, Kelly). The regular education teachers left the meeting after they had discussed Henry’s progress in their classroom; however the Advocate and Mother were able to ask questions of the teachers and obtain information about Henry’s performance and issues (Orlovsky). Dr. Broder, Ms. Kelly and Mr. Enfanto and at least one teacher were present at the same time throughout most of the meeting (Orlovsky, Kelly, Broder). All of Henry’s teachers confirmed that Henry had trouble in writing and at times had difficulty focusing (Orlovsky). The TEAM discussed Dr. Moldover’s report and his recommendations but did not do so in the amount of detail that Mother and the Advocate thought should be devoted to its review (Mother, Orlovsky, Kelly). The TEAM also discussed how Henry’s schedule could be adjusted if he left his Honors science class (Orlovsky). Mother believed that the TEAM meeting was contentious especially when Dr. Broder was reviewing Dr. Brenner’s report (Mother). She also felt that Dr. Brenner should have reviewed Dr. Castro’s evaluation done in 2000 and Dr. Lyons evaluation done in 1999 (Mother). Mother believed that Dr. Broder aggressively addressed Henry and she asked that Henry leave the meeting (Mother). Dr. Broder was surprised that Mother thought that he was aggressive toward Henry (Broder). Dr. Broder sat across from Henry and asked him a few questions; however, Dr. Broder only raised his voice to firmly tell the Advocate “Let me Finish” when she interrupted him several times while he was trying to present the Tri-City report (Broder, see also Kelly). The TEAM did not come to agreement regarding whether Henry continued to remain eligible for special education services, whether Henry had severe problems with executive functioning or whether Henry met the criteria for specific learning disability. (Mother, Kelly, S25)
25. Following the TEAM meeting Ms. Venezia contacted Henry’s geometry and French teachers to ask about his progress. As of November 18, 2005 Henry’s geometry teacher had reported that he had turned in 7/8 homework assignments, averaged an “82” on quizzes and a “73” on tests and displayed good attention and average to above average effort in class answering correctly, when called on 80% of the time. He brought his textbook and notebook to class but often did not bring a pencil (S17). Conversely, Henry’s French teacher reported that Henry doodled in class and did not do any of his homework (S19). .
26. On November 23, 2005 Everett issued a finding of no eligibility along with a parents’ rights brochure; Id. The notice of finding of no eligibility listed that the TEAM considered Dr. Moldover’s September and October 2005 evaluation, Dr. Brenner’s May 2005 evaluation, Woodcock-Johnson results from testing on April 12, 2005, teacher observations, 8 th grade MCAS scores and grades (S25) The finding of no eligibility did not list the Speech/language evaluation; see (S25). During the second quarter Henry’s grades went from an “A- to an A” in Sculpture and from a “C+ to a B-“ in Honors History. His second quarter French grade remained at a “C-“. Henry’s other grades dropped from a “B to a B-“ in Geometry, and from a “C- to a “D+” in English (S3). He was moved out of Honors Biology during the second quarter and received a “D” in that class. The TEAM did agree that the Mother, Advocate and special education director would meet to review MCAS scores and determine whether additional accommodations would be needed for MCAS testing. That meeting did occur on November 22, 2005 (S16). No new accommodations were added (S25). Everett also told Mother and her Advocate that it would file a hearing request with the BSEA to determine whether Henry remained eligible (S25). That hearing request was filed on December 5, 2005.
27. On December 1, 2005 Mother and the Special Education Director Annetta Kelly talked about scheduling Henry for two times a week of resource room assistance. Mother repeated her November 18, 2005 request that Henry receive another special education liaison because she felt that the current liaison make Henry feel stupid and he did not attend the sessions (S53). Everett told Mother that another liaison (Mr. Napoli) may be available but that if this were to occur major changes in Henry’s schedule would need to occur which both Everett and Mother though unwise (S53). Mother did not feel that Henry should be removed from his Honors classes just because his last accepted IEP called for additional assistance (Mother). Mother was also offered the option of switching Henry’s art class to another section. Mother did not want Henry’s art class switched (Mother). After speaking to her Advocate Mother accepted assistance from Mr. Napoli26 during 1 st period and chose to discontinue services with the former liaison (S53). On December 2, 2005 Mother sent the Special Education Director Ms. Kelly correspondence confirming this arrangement and Mr. Napoli began providing academic support on December 5, 2005 (S53, S15, Napoli).
28. In mid to late December 2005, around the time of a parent/teacher meeting, Mother gave or sent27 all of Henry’s teachers the Massachusetts Department of Education’s Part B Assessment forms and asked each of his teacher’s to fill out the forms so that she could get a better understanding of Henry’s successes and difficulties in school and she could give this information to the educational consultant she had just hired (Mother). She also sent each of his teachers Henry’s latest neuropsychological testing. Mother asked each of the teachers to respond to the request by December 23, 2005. The forms from the English, Biology and Special Education teacher were written on December 20, 2005 or December 21, 2005; see (S12, S13, S14, Mother). Mother received the forms from the Geometry, French and History teacher on February 1, 2006 or February 2, 2006 because the special education department originally did not think that they provided accurate information and told the teachers not to send them to Mother but after consideration did send them in February 2006; see (S9, S10, S11, Mother, Kelly). Mother felt that Everett had committed a procedural violation because these evaluation forms were not returned to her in five days and the law requires that the school system respond to a parent within five days if they are not going to do an evaluation (Mother). Mother also believes another procedural violation was committed because she had asked for part of Henry’s educational records and Everett did not respond in ten days as it was required to do (Mother).
29. Mother was however able to find out how Henry was doing from the progress reports (Mother). As of February 2006, Henry had done fairly well on objective testing in Honors History, scoring in the high 70’s, 80’s and 90’s. He was at times off task but could be redirected with the use of prompts or cuing, wait-time or other strategies (S9, see also Dailey). He also did well in Geometry earning a “B” average in the first and second semester of 10 th grade. His teacher found that Henry seemed to grasp new concepts easily and showed a good understanding of geometry (S11). However in French, Henry, as of February 2006, was not making progress due to his lack of productivity and completion of homework and attention difficulties that required constant redirection from the teacher. The French teacher noted that Henry had difficulty in writing but that his listening, speaking and comprehension skills were good (S10). In December 2005, Henry’s biology teacher reported that in the 3½ weeks that he had had Henry he had not turned in his a lab report or homework assignments and had spent some of his notetaking time drawing (S10). His English teacher reported that Henry had poor organizational skills often forgetting to bring his novel to class, and many of his papers were lost or crumpled. His teacher also noted that Henry was able to acquire vocabulary when he took the time to study it and that it was at times difficult to assess his reading and writing abilities because he did not always do his homework. She also reported however that Henry began a great writing afterschool assignment (S12). His special education teacher felt that Henry was able to pass all his classes if he put in more effort to complete the assignments and did what he was required to do (S14).
30. Mother’s Educational consultant Jody Gray28 observed Henry on January 11, 2006 (S7). She also spoke to most of Henry’s teachers (S7, Gray). Ms. Gray also spoke to Henry for about a half and hour at the end of her observation (Gray). Ms. Gray first observed Henry’s supportive help class with Mr. Napoli (S7). The class was quiet and controlled. Mr. Napoli circulated to each student breaking down and clarifying homework assignments. Henry worked quietly on his homework and was receptive when approached by Mr. Napoli. He did not independently ask any questions in that session. At the end of class Henry put his papers in his textbooks and in his pockets and when asked by Mr. Napoli told him that he did not bring his homework folder. Mr. Napoli told Ms. Gray that he Henry told him he had trouble decoding the text.
Ms. Gray observed that Henry’s English class was well structured and organized. Henry was not however able to copy the day’s agenda into his notebook, despite given time to do so because he was completing the previous night’s homework (S7, see also Gray). The English teacher (Mrs. Carney) told Ms. Gray that Henry often received poor grades on notebook checks because he does not always have his daily agendas copied into them (S7). Ms. Gray observed that Henry, during instruction time in English class, was able to maintain focus even though he was doodling in his notebook and completed his in-class work quietly and independently when instructed (S7). Henry’s English teacher noted that Henry required additional time to complete assignments and showed weaknesses in organization, evidenced by Henry’s putting his assignments in his pockets so that they would get home. Mrs. Carney also noted weaknesses in spelling, writing and reading skills and a reluctance to be called upon to read aloud (S7). She also noted that Henry was somewhat reticent to ask for help but was able to self-advocate when needed, recently going for additional help after school (S7). Ms. Gray did not observe multisensory teaching (S7).
In Geometry, like in English, Henry sat in the far right of the room to address concerns with attention (S7). Ms. Gray observed that the teacher (Mrs. McFadden) reinforced an oral explanation with visual examples, manipulatives, modeling, and surveying papers and quietly asking individual questions when needed. The teacher made a point of standing directly in front of Henry which Henry confirmed was typical behavior in that class. Although Henry did not volunteer information, he was able to respond correctly to answers when called on randomly and readily executed the activities with minimal teacher direction. The teacher however told Ms. Gray that Henry had to be constantly kept on task needing reminders to focus and to do his work more slowly and carefully (S7, see also Gray). Mrs. McFadden noted that in her class Henry completed his homework and although organization was not a strength had lately been bringing in his homework. Classes that required a large amount of note taking and multistep long-term assignments were problematic.
In Honors History Henry was placed in the middle of an inner semicircle. The class was taught orally with supplementation of written notes and a written agenda on boards and visuals such as maps and graphs with prompting, cueing and wait time to engage Henry (S7, see also Dailey). Like in English, Henry did not copy the agenda and the notes despite instruction to do so. When Ms. Gray asked him why Henry told her that he felt that he was not able to attend to the lecture when he was copying notes (S7, see also Gray). The lecture was fast paced with teacher directed questions. Henry was redirected six times and was unobtrusively given a new vocabulary sheet when the teacher noticed that Henry did not have his (S7). He raised his hand to answer a question and was reported to do well on the objective multiple-choice questions given in class (S7).
In Biology Henry sat on the far left side in the front of the room (S7). An organizer was placed on an overhead at the beginning of class and students were given a writing assignment with a grading rubric and a paper delineating that the writing assignment required at least four paragraphs with three to ten sentences in each paragraph. Students were also expected to create a graphic organizer. Henry did not initially create a graphic organizer telling Ms. Gray that creating graphic organizers before writing confuses him so he creates the organizer after the paper is finished because they are required (S7). Henry did ask for clarification over an aspect of the assignment but was doodling during the lecture portion of the class. His Biology teacher (Mrs. Fitzsimmons) told Ms. Gray that Henry seemed disorganized and had not taken any real responsibility for getting up to speed after transferring from another biology class. She also told Ms. Gray that Henry was not always prepared for class and didn’t always have his materials, did not take notes or copy homework assignments down and had failed to turn in major assignments such as a lab report (S7). Ms. Gray found that classes that required a large amount of note taking and multistep long term assignments were problematic for Henry and although Henry benefited from the Supportive Help, organizational strategies were not specifically taught therefore offering little value to address Henry’s remedial needs (S7, Gray). Ms. Gray did not share her observations with Everett; see (S7, Gray).
31. On March 31, 2006, this Hearing Officer conducted a prehearing at the Bureau of Special Education Appeals (BSEA). At the prehearing Mother reported that Henry should continue to be found eligible for special education because her Educational Consultant had conducted an evaluation finding that Henry had a disability in writing and poor organizational skills (Mother). She also indicated that the evaluation had not been given to the TEAM because it had not been written up (Mother). Everett requested that the TEAM reconvene to consider the evaluation and asked for a postponement of the hearing scheduled for April 11-12, 2006 to allow them an opportunity to receive the report, consider it and develop an IEP if appropriate (Kelly). Mother objected to the postponement but agreed to attend the TEAM meeting because she felt that she had to (Mother).
32. Mother’s Educational Consultant, Jody Gray, sent the final version of her report to Everett on April 20, 2006; see (S7). Her report summarized previous reports including Dr. Lyon’s 1999 psychological evaluation, Everett’s 1999, 2002 and 2005 evaluations, Dr. Castro’s 2000 evaluation and Dr. Moldover’s 2005 neuropsychological reevaluation and summarized Henry’s IEPs (Gray, S7). She also administered an abbreviated writing evaluation in March 2006 using the Spontaneous writing sample subtest of the TOWL-III to assess his writing skills (Gray, S7). At that time she was not aware that the Speech/language pathologist (SLP) had already administered the TOWL as part of Everett’s reevaluation because Ms. Gray inadvertently missed it in her review of Everett’s speech/language report (Gray, see S7). Ms. Gray is not a SLP but has conducted the test many times (Gray). Ms. Gray noted that Henry’s writing was not organized and contained many spelling errors. When Ms. Gray asked Henry about this he told her that he had some trouble with spelling and could not always tell if he made a mistake. He later retracted that statement (Gray). Henry scored in the 9 th percentile (SS 6) on the Contextual conventions and Contextual Language subtest, at the 25 th percentile in the Story Construction subtest (SS 8) and at the 8 th percentile in the Spontaneous writing quotient (S7). Ms. Gray found that Everett’s decision finding that Henry was no longer eligible for special education services was in error because the decision was based upon Dr. Brenner’s report which used the WRAT-3 which she felt was an inadequate testing instrument to assess academic skills (Gray, but see Broder). Ms. Gray also feels that Everett’s conclusion was in error because it was also based on a speech and language assessment that used the CELF-III that Ms. Gray felt was an outdated testing instrument to gather data (S7, Gray, but see Wolff). However Ms. Gray felt that other parts of the Speech/language assessment showed documented difficulties in spelling and writing and Everett’s progress reports continued to show difficulty with organization, completing assignments, written expression and spelling. Ms. Gray wrote that she did not agree with Everett’s assessment that Henry’s lack of organization, uneven academic progress and incomplete assignments were due to poor motivation rather than documented learning disabilities (S7). She does believe however that poor motivation may exacerbate his poor performance but and would require motivational interventions (Gray, S7). Ms. Gray found that Henry was behind because his past IEPs did not offer direct multisensory instruction in spelling or writing and his later junior high and high school IEP’s do not address directed notetaking, outlining and time-management (S7).
33. Ms. Gray recommended thirty minutes a day of direct one-to-one instruction in spelling using a structured multisensory language program which met Wilson or Orton-Gillingham requirements, from an instructor experienced in working with adolescents with language-based learning disabilities and executive functioning issues. She also recommended that Henry be directly taught grammar, punctuation and sentence structure through a structured multisensory writing program such as Project Read’s written expression program, Landmark’s writing program or the EmPower program, which all start with prewriting skills such as brainstorming, outlining, developing a theme, formulating and writing clear sentences, writing of paragraphs, proofreading and revision (Gray, S7). Ms. Gray also recommended systematic teaching of organizational and notetaking skills with carryover into the classroom as well as instruction in reading fluency. Ms. Gray made a written recommendation that Henry’s instruction be taught in a class of six to eight but did during testimony indicate that instruction could be taught in a larger classroom if pull out and carryover were provided (Gray). Regardless of the setting, Ms. Gray recommended that Henry not be penalized for spelling mistakes containing untaught concepts, that Henry be allowed the use of a word processor to edit his work, have reduced spelling and writing tasks, untimed tests and quizzes in a distraction free environment and constructive feedback for correction (S7).
34. A TEAM meeting occurred on April 25, 2006 (Mother, Kelly, S1). The TEAM meeting was six hours long (Mother, Kelly). Present at the TEAM was Mother and her attorney, Henry’s current and former special education liaisons Mr. Napoli and Ms. Venezia, Henry’s guidance counselor Mr. Enfanto, and Henry’s English, French, History, MCAS, Geometry and Art teachers (S60, Mother, Kelly, Napoli, Dailey). The regular education teachers did not stay for the entire meeting leaving after they had presented information regarding Henry’s performance in their class and the strengths and weaknesses (Dailey, Napoli, Kelly). Mother’s attorney also asked each of the teachers, and they confirmed that they had reviewed Ms. Gray’s report and answered questions about it. Although the tone of the meeting at times felt like a deposition to the teachers, information was able to be exchanged (Mother, Daily, Napoli). The TEAM found that Henry continued to remain eligible for special education and developed a 31 page IEP to address difficulties in spelling, organization of writing, study skills, reading fluency, reading comprehension and motivation; see (S1 PLEP-A p. 19/31). The IEP designated 22 recommendations that Ms. Gray found appropriate to include in the IEP (Gray, see S1, PLEP-A p. 19-20/31, see also Bloom29 ., but see Orlovsky)30 . The IEP also included several types of appropriate specially designed instruction including, but not limited to, multisensory teaching, individual or small group instruction for difficult tasks, home to school log so that parent can document time spent on homework and task completion and consultation from the inclusion specialist; (S1, PLEP-A p. 20/31, Gray). The IEP focused on goals to address written expression and study skills and designated a service delivery grid that specified one 45-minute period of consultation in English, another in History and a third consultation period in science. Pursuant to the IEP Henry would also receive two periods per cycle of supportive help to address writing and study skills. He would also as compensatory education be provided with a third session of 1:1 supportive help from Everett and for Everett to pay for private tutoring once or twice a week (Mother, Kelly).31 Mother rejected the IEP in full but did on that day agree that Henry could receive his second period of supportive services from Ms. Fichera in Everett after school and that if Ms. Fichera was not available the TEAM would reconvene (S1).
35. Ms. Fichera32 began working with Henry at the end of April 2006 and will see him once a week for about an hour until the end of the school year (Fichera). Ms. Fichera uses a Landmark based writing tutorial with Henry working on things such as using a graphic organizer to organize a story, locating the main idea, developing topic sentences, adding details to his writing, developing paragraphs, and working on different ways to write a concluding sentence (Fichera). Ms. Fichera also works on spelling with Henry, Id. Henry learns things quickly going through large chunks of material in a short time and requiring much less repetition than the students she tutored at Landmark (Fichera). He has never missed locating a main idea and has excellent sight word spelling skills but needs work on spelling homophones and some middle vowel combinations. Once Henry is taught a spelling or grammar rule he can self correct. Henry has done everything Ms. Fichera has asked him to do and except for one occasion has shown up on time and works through the entire session (Fichera). Ms. Fichera does not work on organizational skills with Henry. She has, both at Landmark and with students in Everett, taught organizational skills, including but not limited to, setting up notebooks and homework folders, helping students get rid of irrelevant information in their notebooks, setting up study guides, and monitoring what a student is writing in his/her assignment book. She believes that Henry would need a homework folder and daily planner notebook that would go with him between school and home, where the contents would be checked in a consistent manner. If Henry was missing homework, a system, such as the one implemented at Landmark, where students would have to make up assignments after school, could be effective for Henry (Fichera). Ms. Fichera does not believe Henry requires an out of district program in order to make effective progress (Fichera).
36. On May 5, 2006 Mother, through Attorney Borofsky, sent Everett’s attorney, her full rejection of the IEP. Specifically Mother objected to a number of procedural omissions, did not agree that services were offered or that the goals and objectives of the IEP would provide Henry with a FAPE or would conform with Ms. Gray’s, Dr. Moldover’s or Dr. Castro’s recommendations (Mother, see also Orlovsky). Mother believes that Everett has failed to provide Henry with appropriate 1:1 instruction and small group teaching and organizational skills and did not provide proper communication and does not believe that Everett can implement any IEP and therefore requested that Henry be placed at Landmark during the summer and during the 2006-2007 school year (S57).
37. A conference call occurred on May 9, 2006 with this Hearing Officer. Everett requested a more detailed response to the IEP so that they could attempt to address Mother’s concerns, amend the IEP if appropriate or determine if any of the services could be implemented through a partial acceptance even if Mother did not agree with the placement (Kelly, Mother). On May 12, 2006, Mother, through Counsel, sent Everett’s Counsel correspondence informing Everett that she would accept the IEP if Henry was placed in a high school setting in classes with six to eight students, individual tutoring, individual spelling five times per week for thirty minutes and consistent communication between the teacher and tutor. Mother also told Everett that she also rejected the IEP because the IEP did not include daily pull-out spelling instruction or a multisensory writing program. She also indicated that she would “in the interim accept three, two or none after school sped periods depending on Henry’s schedule and the two sped periods could be scheduled during the school day”. The letter also indicated that Mother was rejecting the IEP because the vision statement did not contain the appropriate parent concerns, that Henry was in a geometry class instead of algebra, that his current interests were not band and karate and that Henry did not plan to seek a career in art. Mother also told Everett that she was rejecting the IEP because it contained a statement that parent and her lawyer prohibited Henry from attending the meeting stating that Henry did not want to attend and contained accommodations and methodology in the wrong portion of the IEP (S56, Mother). Mother did not accept any of the consultation or specialized instruction contained in the service delivery grid or accept Everett’s offer to correct portions of the IEP that were wrong because the matter was in litigation and should be decided in that forum (Mother). Mother also felt that leaving the IEP untouched showed that Everett was sloppy and as such could not implement Henry’s IEP; Id .
38. A hearing occurred on this matter on May 25, 2006, May 26, 2006 and June 8, 2006. At hearing Dr. Moldover reiterated his position that Henry should remain eligible for special education services.33 He disagrees with Dr. Brenner’s conclusion because the achievement testing he administered did not assess Henry’s written comprehension with the WIAT written expression subtest or the Test of Written Language (TOWL) (Moldover). However, Dr. Moldover also testified that Henry’s writing difficulties were also attributable to his difficulties in organization because writing requires organization and people with organizational difficulties often have difficulties in writing (Moldover). Dr. Moldover has not talked to Henry’s teachers or seen his classroom program or proposed program and has not seen Everett’s current IEP for Henry and as such could not comment on its appropriateness (Moldover). However, when Dr. Moldover was read portions of the IEP that dealt with untimed testing and a tutorial twice a week that would focus on writing and organizational skills, he agreed that that IEP would be appropriate (Moldover). Dr. Moldover did not recommend an outside program for Henry (Moldover).
39. Ms. Gray also testified at hearing. When presented with the IEP Ms. Gray agreed that it correctly described Henry’s current level of performance and listed appropriate accommodations and modifications. She feels however that Henry has a writing disability due to his scores on writing samples he gave on subtests of the TOWL she administered as well as writing samples she reviewed from Dr. Moldover’s testing. She acknowledges that Henry scored in the average range when given a different version of the same test by Everett’s speech/language pathologist but feels that the test was invalid because an older version was used and the TOWL is a test that is scored subjectively (Gray). Ms. Gray reiterated that Henry should receive daily pull-out remediation in spelling, study skills and organization and in writing individually or in a small group whereby the spelling and writing are systematically taught using a multisensory approach that teaches the rules of spelling and systematically breaks down and teaches writing. Although Ms. Gray recommended specific methodologies such as the Landmark writng program, the EmPower program and the Cornell notetaking method, other methodologies would be appropriate if Henry was given instruction from qualified special education teachers. Ms. Gray does not know if his teachers are qualified because she only spoke to one special education teacher for ten minutes and did not ask about his qualifications and did not speak to the special educator. Ms. Gray recommended that Henry receive this remediation daily for at least 45 minutes a day to ensure consistency with consultation for carryover of techniques learned in the pull out and to provide accommodations in the classroom to help Henry organize. Ms. Gray however did not think a public school teacher could provide this kind of carryover even with consultation because it was not a public school teacher’s job to do so (Gray). However Ms. Gray does believe that if the class is taught orally and paired with visual stimuli and cues, with an opportunity to display his knowledge in a multiple choice or short answer format, Henry would be able to make effective progress (Gray). The amount of services was recommended because Henry had fallen behind in his writing and spelling skills when his services model was switched from remediation of spelling, written expression and penmanship in 7 th grade to a supportive help model (Gray). However this amount of remediation was recommended to maximize Henry’s development. When asked how much support Henry would need to make meaningful progress Ms. Gray was not able to answer (Gray).
40. Ms. Wolff also testified at hearing (Wolff). Ms. Wolff is an ASHA certified and licensed speech/language pathologist with about 37 years of experience (Wolff). At hearing she indicated that based upon her testing Henry would not continue to remain eligible for special education services because his test scores ranged in the low average to high average range and while writing, spelling and grammar may be weaknesses relative to his receptive language skills, he was not language disabled in any of these areas (Wolff). In fact, Henry’s writing sample on the Test of Written Language (TOWL) had good content with a beginning, middle and end (Wolff, see S61). She acknowledges that Henry’s writing samples on different versions of the TOWL were not as good when done by Ms. Gray and Dr. Moldover but disagrees with ms. Gray’s conclusion that her scores are invalid because the issuance of a newer version of the TOWL does not invalidate the old one. She also disagrees with Ms. Gray’s conclusion that her higher scoring was due to subjectivity in that the TOWL is not, if scored correctly, subjective requiring specific scoring based on whether a student capitalizes a sentence, tells a story with five or more paragraphs and other critieria (Wolff, see also S61). The TOWL however is a tedious and often boring testing instrument requiring a lot of writing and can vary depending on the student’s interest in the subject matter (Wolff). In this matter Ms. Wolff speculates that Henry scored lower on a writing sample requiring him to talk about his feelings on physical education because it was a subject that he did not like (Wolff). Ms. Wolff did not form conclusions regarding whether Henry has a disability in executive functioning because she was not asked to, nor did she test Henry’s organizational skills (Wolff).
41. At hearing Mother also further clarified her rejection of Henry’s IEP. She does not feel that the Henry being pulled out for two fifty minute sessions of supportive help is appropriate because Henry needs daily help with organization, spelling and writing and needs consistent carryover between his pull-out support and his regular education classroom in classes that contain no more than eight students (Mother, see also S56). Mother also does not feel that Everett can provide that daily support because there are many inaccuracies in the IEP and flaws in the TEAM process that show that Everett can not give Henry the attention he requires (Mother, see also Orlovsky). For example, the service delivery grid on the IEP inaccurately lists the start date for this supportive help begins 12/12/2004 and ends 12/11/2005 (Mother, see S1). In addition, the current IEP’s narrative description references Dr. Moldover’s report and that report were not reviewed at the April 25, 2006 meeting. The IEP also inaccurately states that Mother and her counsel rejected Everett’s request to have Henry present at the meeting because Mother asked Henry prior to the meeting if he wanted to go and he did not and Everett’s second request for him to attend the TEAM meeting during it was not appropriate (Mother). Mother also does not agree that Ms. Gray’s report was reviewed in detail because her attorney only read the summary of it (Mother). In addition, although all of Henry’s regular education teachers but one were at the TEAM meeting, none of them stayed throughout the entire meeting leaving after they had presented information about their class and Henry’s progress in their classroom. As such, Mother believes that a full TEAM did not exist and therefore a procedural violation occurred which denied Henry a FAPE (Mother, see also Orlovsky). Further Everett did not give Mother an opportunity to fully present her concerns during the TEAM meeting and although Mother was granted permission to prepare her Parent concerns and Vision statement sections of the IEP separate from the TEAM meeting the concern sections did not address all her concerns. In addition, the vision statement that Everett received from Mother’s attorney was not complete enough because Mother was not specifically told to address her concerns in the vision statement. Mother also feels that the Present Levels of Educational Performance General Curriculum section (hereafter PLEP-A) lists one of Henry’s disabilities as written expression where the disability and goals and objections relating to it should be “Executive function disorder”. In addition, although Mother agrees that Henry should receive books on tape when possible, a procedural violation occurred because the TEAM did not specifically mention this methodology at the TEAM meeting (Mother). Further, the PLEP-B section of the IEP shows no checked boxes. Mother is not an educational professional and therefore does not know what should be checked but feels that Everett’s failure to check any boxes is incomplete. Moreover, the IEP indicates that Henry will receive quarterly progress reports and does not reflect that Mother has sometimes received weekly or biweekly reports or indicate that weekly communication between Mother and Everett is needed so that Henry does not fall behind. The IEP is also inaccurate because it indicates that Henry does not require a longer day when he receives spelling and writing assistance from Ms. Fischera one day after school (Mother). Finally the IEP also states that his guidance counselor discussed career opportunities with Mother which Mother feels is inaccurate because the discussion concerned having Henry take a metals class through the vocational department which does not constitute adequate career exploration (Mother, see also Orlovsky). Mother acknowledges that Everett has offered to correct any mistakes in the IEP and to insert a more complete vision and concern statement and other sections of the IEP but feels Everett was given an opportunity to make the IEP accurate at the TEAM meeting and that at this stage it would be inappropriate to make corrections and that the Hearing Officer should do so (Mother, but see Orlovsky)34 .
42. Mother also feels that Henry should receive his education at an out of district program because Everett did not provide Henry’s last agreed upon services (Mother). For example, Everett has not received the recently promised biweekly progress reports she was promised from the special education teacher and even the quarterly report is late (Napoli). In addition, Henry’s last accepted IEP was in 8 th grade (Mother, see P2). That IEP contained pull-out supported help for two fifty minute sessions per week and team teaching with a regular education and special education teacher for one period per week. When Henry entered ninth grade (SY 04-05) his schedule went from a five-day cycle to a six-day cycle (Mother, Kelly). In 9 th grade Henry did not receive any supportive help due to his placement in Honors classes and the special education teacher spent limited time in the classroom (S55). Mother feels that if Everett did not implement Henry’s last agreed upon services it cannot implement any future services for Henry (Mother).
43. Henry’s private tutor, Jane Bloom35 , also testified at hearing. Ms. Bloom began providing tutoring for Henry on March 6, 2006 after Mother’s advocate referred Mother to the Commonwealth Learning Center and works with Henry twice a week for about fifty minutes each session (Mother, Bloom). Ms. Bloom works with Henry on study skills such as note taking, highlighting and identifying the main idea. She also works with Henry on his reading fluency. Henry currently reads on a 6 th grade level at 140 to 150 words per minute. The average reader reads 270-300 words per minute (Bloom). Ms. Bloom also works with Henry on some basic spelling rules (i.e. suffixes) and assists him in organizing his writing through use of graphic organizers, outlining, and working on single paragraphs and summaries. Although Henry began his sessions very guarded and often tries to avoid doing tasks that are difficult for him, he can, when given guidance, humor and little wiggle room, attempt the tasks put before him. In tutoring sessions Henry has difficulty organizing his belongings often forgetting materials and/or walking into sessions with wads of papers in his pockets. Henry also has difficulty organizing his ideas in writing, focusing on details instead of the big picture.
Ms. Bloom believes that Henry has a disability formulating language and organizing language into his writing. She recommends that Henry receive an hour a day of pull-out services to teach organization and study skills and address reading fluency issues and spelling and writing deficits. This daily reinforcement would allow Henry to catch up and maintain and generalize his skills (Bloom).
In addition, Ms. Bloom recommends that Henry receive a systematic and consistent approach to organization from each of his teachers. Ms. Bloom recommends that Henry have a master notebook system that includes a section for homework, a section for tasks Henry is currently working on and a section for long term assignments that would include graphic organizers, graphs and other materials needed for Henry to complete the assignment. This system would then be coordinated with each teacher verbally cueing Henry to take out his homework, cueing him to pass the homework in, followed by verbally telling him the assignment for the following day and checking to see if Henry has written the assignment down correctly. Long-term assignments would need to be broken down and assigned in parts with, for example, a deadline for writing a thesis statement, followed by a deadline for filling in a graphic organizer, followed by a deadlines for outlines, first drafts, revisions and a final deadline for a completed product (Bloom). Both the pull-out instruction and the follow through with the teachers could be implemented in a public school system. Ms. Bloom has no opinion regarding whether Everett could do it because she is not familiar with their program or the training given to its teachers (Bloom).
44. Dr. Broder also testified at hearing and was present through all three days of testimony. Dr. Broder is very familiar with executive functioning issues and agrees that Henry has the characteristics of a person who has difficulty processing those tasks associated with the frontal lobe of the brain, including difficulty with anticipation and planning, self-monitoring, switching from one mode to the other (i.e. math to language tasks) and prioritizing tasks (Broder). Particularly, Henry has difficulty in the organizational aspect of spelling and writing and Henry’s attention problems may contribute to poorer scores (Broder, see also Wolff). Tri-City’s testing showed that Henry has weaknesses in writing and spelling but does not have a language-based disability in those areas (Broder, see also Wolff). However, after listening to testimony from the tutor Dr. Broder concluded that because Henry had these weaknesses and also had executive functioning weaknesses he would need services in order to effectively progress in regular education. Dr. Broder defined those services as assistance with organizing his day including organization of his notebook, assistance in learning how to take notes as well as receipt of notes when needed, breaking down homework, writing and long term projects into manageable time elements, and strategies to focus his attention. Henry may also benefit from assistance in learning specific spelling rules (Broder). However, Henry does not require an out of district program in order to effectively progress in regular education. He is familiar with the Everett school system and feels that it can provide the services and accommodations that Henry needs (Broder).
45. Henry’s teachers and Everett’s administrators feel that they are aware of Henry’s educational needs, that Henry is able to access the general curriculum and that Everett could provide any of the accommodations and services Henry may be determined to need. The teachers generally feel that Henry is able to understand the material they present and often volunteers in class and presents insightful information (Daily, Fitzsimmons, Carney, Napoli). While Henry does not always pay attention in History he will respond to verbal cuing and redirection and is able to complete a task without further assistance; Id. Henry also tests well with a short question/answer format, maps and timetables but does less well with more lengthy writing assignments. While Henry’s grammar and spelling are not up to grade level he is not penalized for these issues36 in content area subjects pursuant to his IEP and his test scores and class discussion show that Henry understands the concepts presented (Dailey, Fitzsimmons, Carney). Henry’s spelling and grammar detract from Henry’s writing however some of Henry’s writing that he has produced in school shows creativity and humor, see (S61, P7). Henry’s grades range from a B in Geometry, to a B- in Honors history to a D in French and Biology and probably a C in English (Daily, Carney, Fitzsimmons, S3). His teachers agree that these lower grades result because Henry turns in his homework only about 50% of the time, at times turns in projects that are incomplete, shows up to class, testing and supportive help without his notebook or required novel or other needed materials and often does not take notes or ask for help (Dailey, Fitzsimmons, Carney, Napoli). Henry has also lost at least one book that had to be replaced (Carney). However, at the end of the quarter Henry has made an effort to turn in outstanding work assignments and has accessed extra help (Dailey, Fitzsimmons, Carney). His teachers feel that at times Henry can complete his assignments and other times motivation may be a factor in turning them in and it is sometimes hard to distinguish between his willingness and ability to comply (Fitzsimmons, Dailey, see also Gray, Bloom). Henry has however benefited from the accommodations including preferential seating, listing of assignments, cueing and prompting to begin a task, and opportunities to turn in homework late (Dailey, Fitzsimmons, Carney, Napoli). Henry would benefit from organizational techniques such as divided page for taking notes and printing of notes from a website once it is up and running next year (Dailey, Fitzsimmons). Most of Henry’s teachers have implemented organizational accommodations for other students and could do so for Henry (Dailey, Fitzsimmons). Henry however has not received specific instruction in organizational techniques and his teachers have not received any consultation from Henry’s special education teacher, see (Dailey, Carney, see also Napoli). The regular education teachers and Mother have also not received Henry’s latest special education progress report due in April (Napoli, Mother). Many of Henry’s teachers are willing to receive more information about executive functioning deficits and accept consultation to help them implement any techniques that might be useful for Henry (Dailey, Fitzsimmons, Napoli). Mr. Daily feels that Henry could be successful in a Junior Honors History class with better organization (Daily). Similarly, Ms. Fitzsimmons finds that when assignments are broken down with specific due dates and Henry is given a list of assignments he does better. She admits that she does give him these lists all the time (Fitzsimmons). She feels that Junior year science will be challenging for Henry and recommends that Henry take Chemistry instead of Earth Science next year because it requires less writing. In order to be successful Henry would need to know what the assignments are, when to turn the assignments, take notes and take advantage of extra help when offered (Fitzsimmons). Henry would also benefit from being pulled out to specifically be taught organizational skills and to be directly taught punctuation and grammar (Napoli). Mr. Napoli does not provide this assistance because the last accepted IEP calls for supportive help which is designed to assist with homework completion and is not set up to specifically teach writing or organization (Napoli, Kelly). The proposed IEP also calls for supportive help but clarifies that spelling, writing and organizational skills will be taught in a small group setting (Napoli, see S1, p.26). Everett does not believe that Henry requires an out of district program to meet his needs (Kelly, Napoli, Fichera, Dailey, Carney, Fitzsimmons).
FINDINGS AND CONCLUSIONS
Under the federal FAPE standard an educational program must be provided under an IEP that is reasonably calculated to permit a student to make meaningful educational progress, is tailored to the unique needs of the disabled child, and meets all of the child’s identified special education and related service requirements, including academic, physical, emotional and social needs; 34 C.F.R. 300.300(3)(ii); Lenn v Portland School Committee , 910 F. 2d 983 (1 st Cir. 1990), cert. Denied, 499 U.S. 912 (1991) and Burlington v Mass. Dept. of Education, 736 F. 2d 773, 788 (1 st Cir. 1984).
Furthermore, special education and related services must be provided in the least restrictive environment; i.e., to the extent appropriate, with children who do not have disabilities, so that programs and services are implemented in separate settings only when, because of the nature and severity of the child’s disability, they cannot otherwise be provided effectively; 20 U.S.C. 1412 (5)(A).
FAPE also entails complying with the procedural requirements of the IDEA; a school district which violates a student’s procedural rights under federal or state law may be liable where “procedural inadequacies [have] compromised the pupil’s right to an appropriate education…or caused a deprivation of educational benefits.” Roland M. v Concord Public Schools , 910 F. 2d at 994 (1 st Cir. 1990); see also Murphy v Timberlane Regional Sch. Dist. , 22 F. 3d 1196 (1 st Cir. 1994) (“a procedural default which permits a disabled child’s entitlement to a free and appropriate education to go unmet for two years constitutes sufficient grounds for liability under the IDEA) ”.
The law also requires that the school district implement all accepted elements of the IEP without delay once a parent accepts the IEP; see 603 CMR 28.05(7)(b). The First Circuit has indicated that noncompliance that affects the provision of an educational benefit amounts to a denial of FAPE. Roland M. v. Concord School Committee , 910 F.2d 983, 994 (1 st Cir. 1990), see also W.G . v. Board of Trustees of Target Range School District , 960 F.2d 1479(9th Cir. 1992), Green County Board of Education , 102 LRP 39656 (Alabama Department of Education 2002), see also Houston Independent School District v. Bobby R. , 200 F.3d 341,349 (5th Cir. 2000), Sioux City Community School District , 103 LRP 37969 (Iowa 2003) (failing to implement a substantial or significant provision of an IEP constitutes a denial of a free and appropriate public education).
A. Implementation/ Compensatory Issues regarding the last accepted IEP
Everett has admitted that it has not implemented parts of Henry’s IEP. Mother fully accepted an IEP that ran from December 12, 2003 until December 11, 2004. That IEP called for a special education teacher to go into Henry’s English, Math, History and Science classes once a week to offer the regular education teacher support with Henry’s written expression goals and for Henry to receive supportive help for two fifty minute periods per week to assist Henry in organization and homework completion, see (S42). This IEP was still in effect when Henry entered the 9 th grade in late August or early September 2004. Those services were not delivered. In order for Mother to prevail she the burden of persuasion; see Shaffer v Weast , 126 S. Ct. 528, 535 (2005). In the instant case, in order for Mother to succeed on her compensatory education claim she must show, that more likely than not, Henry was denied a FAPE as a result of Everett’s actions.
At hearing Everett presented evidence that Henry’s special education teachers Mr. Ruiz did not go into each academic class once per week but did periodically assist Henry in his academic classes and that Mr. Ruiz and Henry’s liaison Ms. Theodoridis did regularly check in with Henry and his regular education teachers to see if the accommodations were implemented (Kelly). Mother did not present any evidence that the lack of a special education teacher one day per week in either 9 th or 10 th grade was more likely than not the cause of Henry’s deficits in written expression. Further, while there was evidence presented that Henry may require consultation between the special education and regular education teachers to provide consistency and carryover Mother did not present any evidence that Henry currently requires a special education teacher in each academic class once a week in order to receive a FAPE. Therefore, Mother did not meet her burden of proof cannot prevail on her request for compensatory education for four 50-minute periods per week of inclusion support.
However, the evidence does show that more likely than not, Henry did not make meaningful educational progress in meeting his goals in homework completion and organization Henry’s 8 th -9 th grade IEP identified Henry as having organization deficits that affected his ability to learn. It also identified deficits in written expression and offered services to address both of these issues, services that Henry did not receive. Henry’s special education teacher noted in Henry’s progress report of November 10, 2004 show that Henry was not receiving support help and that he was not making sufficient progress to achieve his goals (S36). Everett’s testing done in 9 th grade also shows that while most of his achievement is in the average range he did not show significant growth when compared to identical testing that Everett conducted in 2002. Henry’s grades, while in the passing range, dropped because Henry was not organized enough to complete his homework and had difficulty attending in class, disabilities that his IEP was developed to address. As such, while Henry may have not have failed 9 th grade, he did not with the absence of these services demonstrate improvement in the various educational skills identified as his special needs. As such did not achieve meaningful educational progress within the meaning of the IDEA; see Roland v Concord School Committee, 910 F. 2d 983 (1st Cir. 1990). Barbara v Ipswich Public Schools , 10 MSER 244 (Beron).
Everett asserts that it should be excused from compensatory education because Mother waived compensatory services for Henry in 9 th grade because she was told that implementation of a full schedule of supportive services would not be possible and she did not object. Everett also asserts that Mother prevented the school from implementing the services because she chose to have Henry placed in Honors classes and turned down an offer to pull him from a foreign language and his art elective.
The Hearing Officer has considered but rejects this argument. The record is clear that Mother never affirmatively told Everett that she was waiving compensatory services for Henry either verbally or in writing. The evidence also shows that Mother continually requested these services for Henry and that several meetings occurred during 9 th grade so that Henry could receive pull out supportive help. While Mother could have chosen to have Henry not take Honors classes she was not required to do so. Henry required services to address organizational deficits. Everett is required to provide services that meet Henry’s needs. Henry is not required to adjust his schedule to meet administrative needs. Further, pursuant to Section 504, Everett has an obligation to not discriminate against a disabled student because of his disability. If Henry meets the same criteria as typically developing peers to take Honors classes but requires services and accommodations to access those classes Everett must provide the appropriate accommodations and services so that Henry may do so. Everett’s special education director acknowledges and agrees that eligible special education students should be able to access an Honors curriculum and has advocated for this to occur with other students (Kelly).
Everett’s claim that it could have implemented the services if Henry had dropped art or French has more merit. However, Henry has organizational difficulties that affect his ability to learn and adapt to schedule changes. Despite several attempts to do so, Everett could not arrange supportive services in 9 th grade without reworking several of Henry’s classes and as such was not a feasible option.
The Hearing Officer acknowledges that Everett made several attempts to implement Henry’s services. The Hearing Officer also acknowledges that trying to fit last accepted services in a five-day cycle into a six-day schedule is almost a Herculean task. While Everett may have been well intended, and none of this noncompliance willful, the law allows no “good intent” exception to the school district’s obligation to implement those services that will provide a FAPE to a child. While not all noncompliance is a denial of FAPE, Everett’s failure to implement the supportive services in his IEP have impacted Henry’s ability to make meaningful educational progress and have thus denied a FAPE to Henry in 9 th grade.
As such, Henry is entitled as compensatory education of two fifty-minute periods per week (or sixty-seven 50- minute sessions)37 as compensatory education for missed services in 9 th grade.
Everett also admits that it did not provide some of the supportive services in 10 th grade. Henry began 10 th grade on August 30, 2005. Henry continued to need services to address his organizational difficulties and the lack of these services denied him a FAPE. Although Everett began rectifying the error in early September it did not change Henry’s schedule until September 21, 2005. Everett cannot ascertain that Mother was aware of the schedule change until September 28, 2005 or that Henry was told of the schedule change until Everett gave Henry a schedule with the change on October 14, 2005. As such, Henry should receive eleven38 additional fifty-minute sessions of compensatory services to address organizational needs. Henry began, or could have begun receiving supportive help two times in a six-day cycle during the week of October 17, 2005 from his liaison Ms. Venezia. Everett switched the liaison on December 5, 2005 at Mother’s request. At that time Henry only had one out of his two sessions of supportive help due to the switch of liaisons. One option was not feasible because it would have required a major schedule change that both Mother and Everett thought unwise; however another option existed whereby Henry would only have to switch an art class which could have accommodated Henry’s need for services twice a week to address organization and not have a major schedule change that he may not be able to handle due to his disability. Everett cannot be penalized for services that it could have implemented but was prevented from doing so. If however Everett could have offered the services it would have offered them on a six-day cycle instead of the services last accepted for twice a week. During the pendency of any dispute regarding placement or services, the eligible student shall remain in his or her then current education program and placement unless the parents and the school district agree otherwise; 603 CMR 28.08 (7). Mother did not otherwise agree. Therefore the last agreed upon placement was for services on a five-day cycle. Although the Hearing Officer appreciates the difficulty of trying to fit last accepted services of a 5 day cycle into a six day cycle there is nothing in the law or regulations that excuses a school district from delivering services that were last agreed to. Everett does not have to provide services that they could have implemented but must provide the services it testified it would not have implemented on the same frequency as a five-day cycle. Therefore Everett must provide an additional nine39 50-minute sessions of pullout services to address Henry’s organizational needs from the beginning of the 05-06 school year to account for services that should have been delivered on a five-day cycle. However, on April 25, 2006 Mother agreed to have Ms. Fichera provide the additional session of help. Ms. Fichera provided nine sessions of compensatory services from April 25, 2006 until the end of the school year. Therefore Everett’s obligation for the 05-06 school year for compensatory services is limited to the eleven pullout sessions he should have received from the beginning of the school year until October 14, 2005.40
When combined with the 67 hours owed for ninth grade Everett is obligated to provide 78 50-minute sessions (or 65 hours) to address services that were not implemented in the ninth and tenth grade.
B. Compensatory issues regarding Procedural issues/Eligibility
Mother also requests compensatory services because the IEP that she rejected does not provide the appropriate services for Henry. Henry would be entitled to additional compensatory services if the evidence shows that Everett should have, with the information it knew at the time of the finding of no eligibility, created an IEP or procedural errors occurred that impacted the TEAM’s ability to develop an appropriate IEP. The compensatory services that Henry would be entitled to would be the services that Henry should have received on that IEP if accepted by Mother.
Everett allowed Henry’s IEP to expire in December 2004. Everett should have reconvened the TEAM at that time; however, Mother and Everett agreed to orally extend the IEP and have the TEAM reconvene in March. Henry’s services remained in place and as such Everett’s procedural violation did not deny Henry a FAPE. The TEAM did convene in March. The TEAM agreed not to develop an IEP because there was a dispute regarding eligibility. Both Mother and Everett agreed that Everett would move up Henry’s three-year reevaluations. If after TEAM discussion the TEAM determines that a student is not eligible, the TEAM chairperson shall record the reason for such finding, list the meeting participants, and provide written notice to the parent of their rights in accordance with federal requirements within ten days of the Team meeting; 603 CMR 28.05 (2)(a) 2. Everett should have at this time either made a finding that Henry was not eligible, could have developed a full year or short term IEP and moved up evaluations, or, if after discussion, believed that they needed further evaluation information to determine eligibility, the TEAM could with parental consent, agree to an extended evaluation period or could develop a partial IEP with agreed upon goals and objectives and services and implement those services while awaiting evaluative information; see 603 CMR 28.05 (2) (b). If, as here, Mother consented to an extended evaluation, the Team should have documented its findings and determined what evaluation time period was necessary and the types of information needed to develop an IEP, if appropriate; 603 CMR 28.05 (2) (b) 3. The Team should have also decided at that meeting whether they would meet at intervals during the extended evaluation and the TEAM should have convened no later than eight school weeks later; see 603 CMR 28.05 (b) (3) (4). If Everett had developed an IEP and convened after evaluations were completed or if Everett had conducted an extended evaluation Henry would have continued with his services under a full or partial IEP and the TEAM would have met in May 2006 after the evaluations were completed. The TEAM did meet in May 2006 after evaluations were completed and as such, Everett’s procedural error is not outcome determinative and no compensatory education is owed for this violation.
The TEAM convened again in June 2005. Henry’s services continued. In June, after reviewing Everett’s evaluations, Everett continued to believe that Henry was not eligible because he was passing Honors classes even without special education support and while testing showed that while Henry had weaknesses in spelling, punctuation and grammar all his scores in a testing situation were in the low average range constituting a weakness and not a disability. Everett could have at that time issued a finding of no eligibility which Mother would have rejected and could have requested an independent evaluation. In that situation Henry’s services would have continued. Everett chose to develop an extended evaluation so that Mother could obtain an independent evaluation. It orally extended the time of the extended evaluation because the independent evaluation was not completed in an eight-week period. This was in error. Everett had no further questions regarding eligibility and even if it had did not properly develop an extended evaluation. The regulations do not allow for an extended evaluation to be extended.41 However, if Everett had issued a finding of no eligibility Henry would still receive the independent evaluation and his services would have continued and as such its error did not deny Henry a FAPE.
Everett’s determination of no eligibility may substantively be in error in that Everett did not consider that testing also showed distractibility and disorganization and a dropping of grades, especially in his weak areas, due to disorganization; leading to a conclusion that Henry may not have been effectively progressing in regular education without specialized services to address organization. However, based on the information Everett had, it more likely than not should have developed an IEP calling for two periods a week of services to address organizational issues. However, even though an IEP was not developed Henry had these services under his last accepted IEP. Henry is already receiving compensatory education for two periods per week of organizational services for the ninth grade and for those parts of 10 th grade where Everett did not offer Henry these services. Therefore any error regarding eligibility is not outcome determinative and does not warrant additional compensatory education.
Everett timely reconvened the TEAM after it received the independent evaluation in November 2005 and issued a finding of no eligibility. Mother and Advocate contend that Everett committed procedural violations because the report was not fully considered, the regular education teachers did not all stay for the entire length of the meeting and as such the finding of no eligibility was in error because these actions denied Mother adequate parent participation in developing an appropriate IEP.
The evidence shows that this TEAM meeting was approximately 3 ½ hours. While Dr. Moldover’s report was not discussed line by line and as such not discussed in the amount of detail that Mother and her Advocate would have liked, the TEAM did go over the recommendations in detail and Mother and her Advocate were able to ask questions regarding the report. While it would have been ideal if all of Henry’s regular education teachers could have stayed for the entire meeting, the rotation of the regular education teachers throughout the meeting does not mean that a legal “Team” did not exist. The IDEA defines a Team as a group of individuals composed of the parent or parents, at least one regular education teacher; at least one special education teacher or provider; a representative of the school who is qualified to provide or supervise specifically designed instruction to students with disabilities, who is knowledgeable about the general education curriculum and who is knowledgeable about the resources available in the district; a person who can interpret the instructional implications of evaluation results and other individuals with special knowledge of the student at the discretion of the parent; and, when appropriate, the child; 20 USC 1414 (d)(1)(C). While the participation of other TEAM members was hampered due to the Advocate’s continued interruptions of Dr. Brenner, Mother and her Advocate were able to ask the teachers questions about Henry’s performance in their classes and all the teachers had read the reports and were able to learn information from Mother regarding Henry’s educational needs. Although a regular education teacher is required to be part of Henry’s TEAM, neither state nor federal law requires the same regular educator or all regular educations present for the entire meeting. For a high school student with many regular education teachers, it appears legally permissible to have teachers rotate in and out of the Team meeting as long as each teacher is allowed enough time to report on progress and listen to concerns as well as to field questions from parents and provide feedback on recommendations from evaluators. The TEAM meeting did not result in an IEP that incorporated Dr. Moldover’s recommendations. However, effective parent participation does not necessarily mean parent agreement. Pursuant to 603 CMR 28.04 (5), (f) a school district must w ithin ten school days from the time the school district receives the report of the independent education evaluation, reconvene the Team to consider the independent education evaluation and determine whether a new or amended IEP is appropriate. Everett timely reconvened the TEAM and considered the independent evaluation and therefore met the procedural requirements for convening a TEAM and conducting a TEAM meeting.
A school district may properly convene a TEAM meeting and offer the parent effective parent participation and still substantively fail to develop an IEP or develop an IEP that does not offer a child a FAPE in the LRE. Everett, when making its decision regarding eligibility, considered Dr. Moldover’s evaluation, Dr. Brenner’s evaluation, Henry’s Woodcock Johnson scores conducted in April 2005, the speech/language evaluation, teacher evaluations from 9 th and 10 th grade, Henry’s 8 th grade MCAS scores, his course schedule and Henry’s grades (S25, Kelly). Everett based its decision on Henry passing his classes with some Honors classes, proficient scores in the 8 th grade MCAS and its speech/language and psychological testing that showed weaknesses in writing, grammar and spelling but scores in the low average to slightly below average range. Dr. Moldover’s testing showed that Henry has average verbal reasoning and superior visual-spatial skills and average to low average scores in most areas. However, Dr. Moldover’s and Dr. Brenner’s testing also shows lowered scores due to attention issues, impulsive errors and organizational difficulties, especially when no structure was provided in testing. Both evaluators also noted achievement scores in writing and spelling that were below average, very low average reading fluency rates and standard scores in written expression and spelling that were significantly below grade expectations. Dr. Moldover also noted that even in a testing situation Henry’s work rate was slow. Henry’s teachers also expressed concerns about Henry’s organizational skills in the classroom, related that Henry sometimes had difficulty focusing in class and concerns about Henry’s grammar and spelling. Everett also had information that Henry’s teachers used accommodations in the classroom to help him focus and organize and that in at least one quarter Henry failed to meet his goals and objectives when special instruction was not provided. If Everett had compared Henry’s 2002 and 2005 WISC scores it would have also seen scores that essentially stayed the same showing little or no growth. Based on the above, it is more likely than not that Everett should have concluded that Henry required a related service and accommodations in the classroom in order to progress effectively in regular education and required an IEP that continued his accommodations in his last agreed upon IEP along with continued organizational support and a pull out for two periods per cycle to address writing and spelling. As such, Henry should receive as compensatory education two fifty-minute sessions of instruction in written expression using a multisensory curriculum based approach that addresses organization of complex written material. The period of this compensatory education should run from the time the IEP would have reasonably been implemented (December 1, 2005) until April 25, 2006 when instruction began being provided by Ms. Fichera one time per week. Another session per week should be added to account for the additional session of instruction that would have occurred between April 25, 2006 and the end of the school year.
C. Appropriateness of the Proposed IEP
On May 5, 2006, Mother rejected the IEP developed on April 25, 2006 because she feels that the IEP fails to provide the intensive services recommended by Ms. Miller, Dr. Moldover, Ms. Bloom and Dr. Castro. She also feels that if the Hearing Officer were to order Everett to create a program providing the services, Everett would not be able to implement a daily block of the small group or 1:1 instruction that Henry requires, could not provide teachers qualified to provide the spelling and writing program that Henry requires nor would Everett’s regular education teachers have the time in their schedules to work with the special education staff to create the continuous and consistent organization and executive functioning program that Henry requires. Mother also believes that even if Henry’s program could be implemented, Everett would not implement that program due to the numerous procedural violations that Everett has committed and the many mistakes in Henry’s current IEP.
Everett’s proposed IEP calls for Henry’s regular education English, History and Science teachers to have consultation from a special education teacher to address written expression, organization and study skills. It also calls for Henry to receive two periods of supportive help per six-day cycle to address spelling, writing and organization. The IEP also provides a number of accommodations and specially designed instruction including, but not limited to modeling, demonstration, cuing and prompting, preferential seating, use of a planner, notebook, graphic organizers and outlines to assist in organization, encouragement of verbal responses, books on tape and time extensions for written assignments, use of Kurzwil for written assignments and home to school logs. The proposed plan also calls for Henry to receive additional services through the day and in the summer to address writing and spelling. Mother has asked for daily pullout instruction and objects to additional services as compensatory services for a year without “stay-put” rights.
After consideration of the documents and testimony in this matter the Hearing Officer finds that the IEP can, with some changes, be made appropriate and can be implemented in Everett. All of the witnesses, including Mother’s witnesses, agree that the accommodations listed in the IEP are appropriate for Henry. All also agree that Henry would benefit from weekly consultation between the regular and special education teachers to carryover skills that he has learned in his pull-out sessions. None of the witnesses other than Mother have recommended an out of district program. The IEP calls for pull out help twice a cycle to address organization, spelling, grammar and writing. Dr. Moldover recommended that Henry receive pullout support to address writing twice a week and made no recommendations for pull out organizational or spelling support. Prospective sessions of pullout support for two sessions per week are appropriate. However because Everett uses the term “supportive help” to mean assistance with homework, the IEP grid should clarify that the pull-out services will be used to teach Henry study skills including outlining, note taking and other study skills as well as teaching of spelling rules and writing as the IEP indicates in other sections and as recommended by Ms. Bloom. Although Ms. Bloom and Ms. Gray recommended a daily pullout to address organization, spelling, grammar and writing they also testified that this amount of services was because Henry was behind and did not receive services in the past. These extra sessions are compensatory services. Henry is to receive 107 50-minute sessions (or 89 hours and 10 minutes) of compensatory services. Everett can choose to spread this time for extra sessions during the school day and/or before or after school, in the summer or continue a portion of these services into Henry’s senior year. The Parties can also mutually agree to take a portion of these compensatory services and have them implemented by a private tutor or in a summer program. However, if there is no agreement Everett can devise the compensatory service plan.
Mother maintains that the IEP contains so many errors and Everett has made so many procedural errors that it cannot implement Henry’s IEP nor can it provide qualified teachers to deliver the services, provide consultation or implement the accommodations that Henry requires. The evidence shows that Henry’s teachers can provide the services Henry needs. Mr. Napoli and the former liaisons provided the supportive services that the last accepted IEP designated. Ms. Fichera44 has experience teaching writing, spelling and organization and can provide consultation to the regular education teachers. The regular teachers have all credibly testified that they take many in-service courses in differentiated learning, would readily accept consultation and have regularly implemented or would be willing to implement any accommodations needed. The IEP does contain some errors such as information that Henry likes karate and is interested in engineering, has incorrect dates for the pull-out services in the grid, uses the words “study skills or organization” instead of executive functioning and does not have some of the language Mother wanted to include in her vision statement. These errors are de minimus and did not deny Henry a FAPE. In addition, Everett offered to correct any errors it knew of and would have done so if Mother had provided information to allow this to occur. Everett also learned of many of these concerns at hearing despite inquires prior to hearing to correct any errors. Any mistakes or clarifications can be easily resolved once Mother sends her comments to Everett.
The evidence also shows that Everett did not commit any procedural errors in its development of the proposed IEP. The April 25, 2006 TEAM meeting lasted six hours. While Ms. Gray’s report was not read in the detail that Mother and her Counsel would have liked, the TEAM is not required to read an evaluation at a TEAM meeting line by line, also as explained supra, a school district can permissibly rotate the regular education teachers through the TEAM meeting as long as a parent is given an opportunity to ask the teachers questions and share information regarding the child’s learning needs. The teachers’ participation at the TEAM meeting may have been hampered by the deposition like questioning by Mother’s attorney; however Mother was able to get and share information regarding Henry.
Mother also maintains that the TEAM did not consider or respond to her request for teacher evaluations within five days. Mother did not inform Everett High School Administration or the Everett Special Education Department that she was requesting evaluations and did not make a formal request for these evaluations or questions. Mother’s downloading of DOE teacher assessment forms and giving them to Henry’s teachers was not a request for an evaluation that gave Mother a right to a response within five days. There is nothing in federal or state law that gives parents the right to independently serve teachers with requests to complete Educational Assessment forms and allowing Parents to unilaterally request teacher assessments in an informal process runs the risk of miscommunication between Team members and may not provide accurate information in the event the same evaluations were already completed. Mother did, in February 2006, receive information regarding Henry’s progress through these forms. She also received progress reports from the teachers in December 2005 and February 2006. As such, Henry was not denied educational benefits and as such compensatory education is not warranted.
Everett has made errors. However, it has admitted that it has made errors and has tried to correct them. It has also repeatedly tried to address Mother’s concerns and is willing to continue that communication. Its proposed IEP has been developed with consideration of Parent, both school and independent evaluations and performance in school. I find that Everett can implement the IEP and the compensatory services and as such Henry does not require an out of district program to implement his IEP.45
Henry is to receive 107 50-minute sessions (or 89 hours and 10 minutes) of compensatory services for services that were not delivered in 9 th grade and part of 10 th grade. Henry is not owed any additional compensatory services for procedural violations because the errors that were committed did not deny Henry a FAPE. The proposed IEP, with minor clarifications, provides Henry a FAPE in the LRE. Henry does not require an out of district program because Everett is able to implement the program and compensatory services Henry requires.
By the Hearing Officer,
Joan D. Beron
Date: July 20, 2006
Henry is a pseudonym used for confidentiality and classification purposes in publicly available documents.
Everett originally filed a hearing request asking the BSEA to determine that Henry is no longer eligible for special education services. Everett withdrew its request on May 10, 2006 after considering a recent evaluation from Parent and developing an IEP at a TEAM meeting conducted on April 25, 2006. Mother’s counterclaim, received by the BSEA on April 13, 2006, remains.
Dr. Moldover testified by phone.
Everett admits that it did not provide some of Henry’s services. There is a dispute regarding whether other services were provided?
Mother has rejected Everett’s compensatory services package and would like Henry to receive compensatory services in Landmark’s summer program. Landmark accepted Henry into its summer program and school year program on or about June 23, 2006; however at the time of the hearing Landmark had not made a determination as to whether it has an opening or would accept Henry for its summer program. Parent has also not presented any documentation regarding Landmark nor has Everett had an opportunity to obtain information about Landmark that would be relevant to its appropriateness for Henry. As such, the parties stipulated at hearing that if Henry is entitled to compensatory services and Everett’s compensatory services are not appropriate, or could not be made appropriate, an order would issue for Everett to explore programs, including but not limited to Landmark, (or would create a program) that would provide appropriate compensatory services. Mother’s June 23, 2006 request to order a summer program at Landmark by June 29, 2006 was objected to by Everett. Mother’s motion was denied.
Mother has rejected the May 2006-May 2007 IEP and would like an IEP developed for Henry’s placement at Landmark for the 2006-2007 school year (SY). Mother has applied to Landmark; however at the time of the hearing Landmark had not made a determination as to whether Henry is appropriate for its program or whether an opening exists for him. As such, the parties stipulate that if the evidence shows that Henry requires an out of district program an order would issue for Everett to create or to locate an appropriate program, including but not limited to exploring Landmark.
Mother referred Henry to a psychiatrist. The psychiatrist explored self -esteem issues and did not recommend treatment. Later evaluations found no social-emotional difficulties; see (P9).
Everett tested Henry using the Woodcock-Johnson Revised (WJ-R).
On July 21, 2004 Mother filed a complaint with the Department of Education’s Program Quality Assurance Division (PQA) alleging that Everett did not comply with Henry’s IEP. On October 11, 2004 PQA found that Everett had instituted was in compliance with implementing Henry’s accommodations and services and providing regular progress reports but found that Everett did not check off portions of the IEP including information on transportation services and that the previous IEP had expired in November 2003 and a TEAM was not convened until December 2003, see (S37). A BSEA Hearing Officer does not review PQA’s decision but will make independent findings if these issues are raised within the two-year statute of limitations period.
Henry received passing grades throughout the year in PE and Health.
Everett’s three-year reevaluations were due in November 25, 2005. The Parties agreed to conduct the evaluations during the spring of 2005.
The evaluations conducted were the Peabody Picture Vocabulary Test (PPVT-IIIA), the Expressive One-Word Picture Vocabulary Test (EOWPVT), the Clinical Evaluation of Language Fundamentals (CELF-3), the Test of Written Language (TOWL) and the Comprehensive Assessment of Spoken Language (CASL Record Form 2) as well as informal hearing, articulation, speech and language assessments; see (P5).
Henry’s expressive language scores ranged from the 50 th to 96 th percentile with expressive language subtest scores (other than pragmatics and word associations and recall) ranging from the 50 th to 92 nd percentile (P5/S33). Phonemic awareness (spelling) scores on the TOWL subtest placed him in the 25 th percentile; Id.
Grammatical judgment subtests on the CASL yielded a percentile rank in the 3 rd percentile; however five out of the 10 errors were because Henry displayed subject and object pronoun confusion (‘me” instead of “I”) and if this one error was taken out the SLP speculates that Henry would have scored in the average range (Wolff). Subtest scores on the CELF-3 Recalling Sentences was at the 37 th percentile, the CELF-3 word associations at the 25 th percentile, the CELF-3 Nonliteral language subtest at the 32 nd percentile, and the CELF-3 pragmatic judgment test at the 27 th percentile. Written language scores on the TOWL in spelling and Contextual Conventions were at the 25 th percentile, with style, logical sentences and sentence combining, each at the 16 th percentile (P5).
The test used was the Woodcock Johnson-Revised.
The SS on the calculation subtest in November 2002 was 100, in April 2005 the SS was 98.
Dr. Broder testified that the WJR has a standard deviation of fifteen points and that scores less than this fifteen-point spread may not be statistically significant and may not indicate growth. Comparison of testing done in November 2002 and April 2005 show a gain of 6 points in Dictation, gains of seven points in passage comprehension, letter word identification, gains of eight points in broad math, a gain of ten points in writing samples, a gain of twelve points in broad reading and sixteen points in math reasoning. Calculation scores dropped two points. All scores but punctuation and capitalization remained in the average range in 2002 and 2005. Punctuation/grammar scores remained below average.
Dr. Brenner conducted a clinical interview and used the Wechsler Intelligence Scale for Children-4 th Edition (WISC-IV) and the Wide Range Achievement Test-Revision 3 Blue Form (WRAT3) to assess Henry.
WISC-4 scores show scores in the 50 th percentile for verbal comprehension, the 55 th percentile for working memory, the 84 th percentile for perceptual reasoning and the 96 th percentile in processing speed (S32).
Dr. Moldover is a licensed psychologist. He has been with the Children’s Evaluation Center (CEC) as a pediatric neuropyschologist since July 2004 completing his post-doctoral fellowship at CEC the year before (P22).
Dr. Moldover used selected subtests of the WISC-IV, the WIAT-2, the Gray Oral Reading Test (GORT-4), the Gray Silent Reading test, the Beery-Buktenica Test of Visual-Motor Integration (VMI), the Wide-Range Assessment of Memory and Learning (WRAML), the Rey-Osterreith Complex Figure Test (ROCFT), the Delis-Kaplan Executive Function System (D-KEFS), Repeated patterns, Grooved Pegboard, the Achenbach Youth Self-Report, the Brown ADD Scales Self-Report) and the Singer-Bashir Writing Questionnaire (S23).
On the WRAML-II Verbal Memory recall Henry scored in the 9 th percentile. On the Story Memory delayed recall Henry scored at the 50 th percentile (S23)
Ms. Kelly is certified as a special education administrator and is a licensed social worker. She also has training in Orton-Gillingham and has a child with severe learning disabilities (S45, Kelly).
Ms. Orlovsky completed advocacy training in May 2004. She has two disabled children and has been chairman of the Parents Advisory Council (PAC) in Arlington for five years (P24, Orlovsky).
Dr. Broder has been a licensed psychologist since the late 1970’s. He is currently the director of the Tri-City Mental Health Center, is an adjunct professor at Lesley College and Boston College, a consultant to the Massachusetts Rehabilitation Commission and has a private practice (S46, Broder).
Mr. Napoli is a Master’s level certified special education teacher. Mr. Napoli also has a MS in Economics from the London School of Economics and received a BA in Social Work in Tanzania.
Mother testified that she gave the teachers the forms at a parent teacher meeting on December 15, 2005, the teachers testified that they received the forms in their box at school near the Christmas break; compare Mother, Dailey).
Jody Gray received her Ed.M. in Special Education in May 2000. She is not a certified teacher (Gray, P23) Ms. Gray has been a language teacher/tutor at the Carroll School from 1998-1999 and is certified in Wilson and Language! and has training in Orton-Gillingham, Project Read and the Bell Visualizing and Verbalizing Program. Ms. Gray was a former director of the Commonwealth Learning Center in Danvers and currently owns a consulting business specializing in learning disabilities (P23).
These accommodations include provision of clear and explicit written, oral and visual directions including visual, auditory and tactile cues and prompts, modeling, integration of creative arts with learning, use of multisensory activities to reinforce concepts, graphic organizers, maps, webbing, word banks for spelling, preferential seating, use of a planner to keep track of long term assignments, use of a loose leaf notebook for content subjects with a process for checking to ensure that the notebooks are being maintained, encouragement of verbal responses as appropriate, time extension for written assignments, use of Kurzwil for written assignments, improving spelling and writing skills and increasing class productivity, frequent reinforcement for on-task behaviors, clarification and repetition of directions, preferential seating, use of flexible grouping and use of study guides (S1).
Ms. Orlovsky does not find anything appropriate in this IEP (Orlovsky).
Everett and Mother also discussed, and Everett offered other compensatory education components during this time period. Mother did not accept these additional components electing to have the compensatory education matter decided at hearing; Everett withdrew its offer of compensatory education on May 25, 2006.
Ms. Fichera is a certified and licensed Master’s level special education and English teacher. Ms. Fichera taught for two years in Hamilton MA and for three years at Landmark as a language arts teacher and tutor (Fichera, S47).
Although Everett found Henry eligible at the April TEAM meeting, Everett did so in hopes of resolving the matter. Everett is ready to implement the IEP it developed but wants the decision to address whether Henry is eligible for special education services. The decision will address this issue as well as whether Henry should have been found eligible for services in 9 th grade.
Ms. Orlovsky believes that it would be appropriate to try to make corrections or amendments in an IEP if possible (Orlovsky).
Ms. Bloom has worked at the Commonwealth Learning Center since approximately 2005 and also has had a private tutoring practice since that time. Immediately prior to this time she has worked at various supervisory and teaching positions at Landmark since 1972. Ms. Bloom is a Masters level certified teacher special education teacher.
Henry was incorrectly penalized for spelling mistakes on his first writing assignment in September 2005 but was not later penalized (Carney, see P7).
There were 188 school days in the 04-05 school year. Henry was absent nine days and thus attended 179 school days. Some but not all of the days absent may have occurred on days that Henry would have received supportive help. 180 school days divided by 5 days per week equals 36 weeks. Henry would have received services twice per week (72 sessions). However he may have missed a reasonable number of services in 9 th grade due to assemblies, an occasional teacher absence or fire drills (5 days).
The 05-06 school year began on a Tuesday and it is likely that Henry would have only received one supportive help session if it were properly implemented. Labor Day fell on the following week which may have impacted one of the two supportive help sessions. Two sessions could have been offered the following four weeks; however one session is reduced because three days would have been a reasonable period (one session in the five day cycle) to give Everett time to reasonably rectify the problem when it discovered it on September 12, 2005. One session may have been missed due to the Columbus Day holiday the following week. Henry was given the schedule change on Friday, October 14, 2005 and would not have been able to begin attending sessions until the following week. Therefore an additional two sessions are added for the final week.
There are approximately 180 days in a school year. There are 36 sessions per week in a five-day cycle (180/5). There are 30 sessions per week in a six-day cycle (180/6). Henry would have gotten two sessions per cycle or 72 sessions in a five-day cycle. If Everett could have delivered the services Henry would have received 60 sessions in a six-day cycle. Therefore the difference is twelve additional sessions. An additional three sessions are subtracted because Henry was absent twelve times in the 10 th grade and may have missed some of those sessions or there could have been an occasional teacher absence or a special event or fire drill. Therefore Henry would be owed nine compensatory sessions.
Ms. Fichera’s nine sessions offset the nine sessions owed due to the sessions missed for the six-day cycle. Everett asked that an additional ninety minutes be reduced because Ms. Fichera worked with Henry for an hour per week instead of fifty minutes. The Hearing Officer declines to do so. The testimony was that sometimes Ms. Fichera worked for an hour. There may also be times during the year that a fifty-minute session could have been 45 minutes. A few minutes in either direction are within the bounds of acceptability for an award of compensatory services.
The regulations do not address what to do on those rare occasions that a TEAM legitimately needs more than eight school weeks to determine eligibility. The regulations do not prohibit development of another extended evaluation.
This number subtracted periods that included school vacations and holidays. Three days were also subtracted to account for times that Henry could have been absent or a special event in school could have reasonably prevented implementation. Organizational support was already calculated and awarded due to lack of implementation and will not be included in this number.
Mother has requested that she be reimbursed for hiring a tutor to provide instruction that Everett did not deliver. Ms. Bloom began providing tutoring on March 6, 2006 two times per week and has to date provide less than 40 sessions. If Mother does not want Everett to implement the 40 hours of compensatory services she may chose that she be reimbursed for two tutoring services per week from March 6, 2006 until April 25, 2006 and for half the sessions delivered from April 25, 2006 until the end of the school year.
Everett has the discretion regarding who will provide the services. Everett is considering Ms. Fichera, if her schedule allows, because she is qualified to provide the services, has worked with Henry and Henry is slow to warm to new people. However, as long as Everett provides a qualified teacher it will have fulfilled its obligation.
If an IEP is not implemented, Mother can take the matter to DOE’s PQA division or request a hearing (or mediation) regarding compliance with this decision.