COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re:  Student v. Chelmsford Public Schools                    

BSEA No. 25-01933

DECISION

This decision is issued pursuant to the Individuals with Disabilities Education Act or IDEA (20 USC Sec. 1400 et seq.); Section 504 of the Rehabilitation Act of 1973 (29 USC Sec. 794); the Massachusetts special education statute or “Chapter 766” (MGL c. 71B), the Massachusetts Administrative Procedures Act (MGL c. 30A) and the regulations promulgated under these statutes. 

The Student in the instant case is an eight year old third-grader in an elementary school within the Chelmsford Public Schools (Chelmsford, District, or CPS).  As of the hearing date, Chelmsford had deemed Student to be ineligible for special education services.  On August 12, 2024, Parents filed a hearing request with the Bureau of Special Education Appeals (BSEA) in which they assert that since October 13, 2023, Chelmsford has denied Student a free, appropriate public education (FAPE) by failing to find him eligible for special education on the basis of a specific learning disability and failing to provide him with special education services in the areas of oral reading fluency, reading comprehension, and written expression.  Parents seek an order overturning the finding of ineligibility, and directing Chelmsford to determine that Student is eligible on the basis of a specific learning disability affecting reading and writing, and to develop an IEP addressing Student’s areas of need. 

Upon receipt of Parents’ hearing request, the BSEA scheduled an initial hearing date of September 16, 2024, and the hearing took place on that day.  With the consent of both parties, the hearing took place via Zoom videoconference.  Parents appeared pro se and the District was represented by counsel.  Both parties had an opportunity to examine and cross-examine witnesses, as well as to submit documentary evidence for consideration by the Hearing Officer.  On September 18, 2024, the School filed an assented-to request to postpone the hearing until September 20, 2024, to allow the parties time to submit written closing arguments.  On that date, both parties filed closing arguments and the record closed. 

The record in this case consists of Parents’ Exhibits P-1 through P-15, School’s Exhibits S-2 through S-16, as well as stenographically-recorded witness testimony.  Those present for all or part of the proceeding were the following:

Student’s Mother

Student’s Father

Kendra Hendrickson                       Team Chair, Chelmsford Public Schols

Megan Iannalfo                    Special Education Teacher, Chelmsford Public Schools

Rachel Leary                        School Psychologist, Chelmsford Public Schools

Donna Omobono                 Assistant Principal, Student’s elementary school

Amy Reese                           Director of Student Services, Chelmsford Public Schools

Thomas Nuttall                     Attorney for Chelmford Public Schools

Daniel Kramer                                  Guardian[1] for court reporting service

 

ISSUES PRESENTED

The issues to be decided are the following:

1. Whether the Chelmsford Public Schools was incorrect when it found, on October 13, 2023, that Student was ineligible for special education; and,

2. Whether the Chelmsford Public Schools committed errors in the Team process that deprived Student of a free, appropriate public education (FAPE) [2]

 

POSITION OF PARENTS

Student has a longstanding and severe discrepancy between his exceptionally strong cognitive ability and his achievement in oral reading fluency, reading comprehension and written expression, which do not meet grade level standards.  Student has failed to make effective progress in these areas, and is falling further behind, despite school-based, general education interventions.  As such, Student qualifies for special education under the category of “specific learning disability.”

Chelmsford’s determination of October 2023 that Student was not eligible for special education was incorrect.  Among other things, Chelmsford relied on incorrect information at the initial Team meeting to determine that Student was ineligible, despite Parents’ having corrected the misinformation.  Further, the District committed numerous procedural violations, including failure to follow the federally-mandated procedures for periodically assessing Student’s response to evidence based-interventions, and failure to properly consider the severe discrepancy between Student’s cognitive ability and achievement.  Had the District done so, it would have found Student eligible for special education in October 2023. 

POSITION OF SCHOOL

Based on the information available at the initial special education Team meeting on October 13, 2023, Chelmsford’s finding of “No Eligibility” for special education was correct.  Prior to the Team meeting of that date, Chelmsford had conducted a timely and comprehensive evaluation of Student, which revealed average to above-average skills in nearly all areas tested.  Additionally, Student’s classroom teacher observed that Student had no difficulty with accessing the general curriculum and was a “model student.”  That Student benefited from non-special education supports in reading and writing, that he had slightly below average scores in one or two subtests, or that his reading performance dipped in first grade as the work became more challenging, did not give rise to a disability diagnosis.  Further, the District committed no procedural violations, but, even it did, such violations were technical or de minimis, did not cause educational harm to Student, and did not deprive Parents of the ability to meaningfully participate in the Team process. 

SUMMARY OF THE EVIDENCE

Student Profile

1. Student is an eight-year-old child who resides with Parents and three siblings in Chelmsford, MA.  The Chelmsford Public Schools is the Local Education Authoriy (LEA) responsible for ensuring that Student receives a free, appropriate public education (FAPE), pursuant to the IDEA and MGL c. 71B.[3]

2. There is no dispute that Student presents as kind, well-behaved, highly intelligent and capable, both in school and at home.  Recent testing revealed that Student’s cognitive abilities range from “above average” to “exceptionally high.”  (P-8, S-10) Standardized achievement testing, including tests related to phonological processing, yielded scores ranging from “average” to “superior” in all areas except for written expression and spelling, where scores were “below average.”  (P-9, 10; S-4, 5, 6) Student does not present with significant social, emotional, or behavioral challenges. (Parents, P-8, S-10) 

Despite Student’s high scores on standardized tests, Parents and teachers have expressed concern that Student’s reading and writing skills have lagged below grade expectations, and Student has received general education literacy supports and interventions since Kindergarten.  (Mother, Father)

Chronology

3. Mother[4] testified that she first became concerned about Student’s development in early childhood, when she noticed that he had difficulty identifying letters, associating letters with sounds, and maintaining attention.  By way of contrast, she observed that Student had an aptitude for math computation, visual skills, phonological awareness, and language skills such as rhyming. From an early age, Student was able to speak intelligibly, and to repeat lengthy words and phrases and use them correctly.  (Mother)

4. When Student entered Kindergarten within the Chelmsford Public Schools, his teacher shared Mother’s concerns referenced above, and reported that, additionally, Student was having difficulty with identifying sight words, with decoding, and with reading.  To address these concerns, the District provided Student with daily small-group pullout reading services provided by a reading specialist.  By the end of Kindergarten, Student was able to read at grade level.  (Mother) 

5. For first grade (2022-2023), the District provided Student with services from a Title I reading interventionist.  Parents noticed, however, that Student appeared to be falling behind in reading in school and that he was averse to reading at home.  (Mother) 

6. Student was issued three report cards during first grade.  Report card grades, or “performance levels accomplished,” comprised the following categories: “Exceeds Understanding of Standard”  (“ES”), “Meets Standard” (“MS”), “Developing Understanding of Standard” (“DS”), and “Limited Understanding of the Standard” (“LS”).  (S-11)

A grade of MS signified that “the student demonstrates proficiency in concepts and skills…[and demonstrates] the ability to apply skills and strategies with accuracy, quality and independence.  A rating of “MS” is the goal for all students to achieve.” 

A grade of DS meant that “the student is making progress in concepts and skills…[and demonstrates] the ability to apply skills and strategies with varied consistency, quality and support.”  (S-11)

7. Student’s report card for the first term of first grade showed that Student had earned grades of MS in nearly all of the components of Math, Science, Visual Arts, and Music. In “Humanities,” which encompassed Reading Literature and Informational Text, Foundational Skills (including phonics and reading fluency), Speaking and Listening, Language, and Writing, Student’s grades were “MS” in many components, including “knows and applies grade level phonics and word analysis skills,” “uses [parts of speech] in speaking and writing,” “produces simple and compound sentences,” applies spelling patterns…in daily writing,” “acquires and uses grade level…vocabulary…,” and “introduces” and “develops” topics in written work.  Student earned grades of DS in “reads with accuracy and fluency,” “reads and comprehends grade level text,” “asks and answers questions about key details in a text,” “knows and uses non-fiction text features to locate information in text,” and “retells stories…” 

8. At the end of the second term, Student again earned grades of MS in Math, Science, Art and Music.  In Humanities, Student’s grades were now “DS,” with the exception of phonics and aspects of reading comprehension and writing, which either remained at or rose to, the level of “MS”.  (S-11) In both terms, Student’s weakest areas were in reading comprehension, fluency, and in aspects of written expression.  The teacher commented that Student had made progress in all academic areas, was working on providing more detail and a conclusion to written work, needed reminders to slow down and tap out words for spelling, and “is often missing sounds in words like ‘thump.’” (Mother, S-11)

9. Parents attributed this change in grades to Student’s falling behind in reading and writing skills.  They also were concerned because, by December 2022, Student had only advanced one Fountas and Pinnell reading level, when, Mother testified, he should have advanced two levels during that time period. (Mother)

Student’s first-grade teacher did not share Parents’ concerns, stating: “the report card decline…can occur as they are based on the standards.  In term two we focused on more in depth words with higher spelling patterns, as well as harder trick words…  The reading benchmark also increases.  During term two we looked for students to be reading at a level G instructionally, but [Student] has made some progress in his decoding skills.  In writing…introducing topics and providing details became more challenging…”  (P-3)

10. On February 27 and March 6, 2023, Parents had Student privately evaluated by Dr. Ludwig Erik von Hahn, a developmental pediatrician associated with the Tufts Pediatrics Center for Children with Special Needs.  Parents sought the evaluation to address concerns about “attention span, behavioral dysregulation, and learning difficulty,” including “continued concerns about reading, writing skills, and his participation in organized sports.”  (P-2)   

The evaluation consisted of an interview with Parent and Student as well as completion of the Pediatric Early Elementary Examination by Student, rating scales by Parents and Student’s teacher, and a physical examination. 

Parents reported that Student was at grade level for reading at the beginning of first grade, but, as of the date of evaluation, was reading two levels below his peers, despite small group instruction four times weekly.

Student’s first grade teacher[5] reported a number of concerns, including that Student was “behind two reading levels,” “slow/meticulous with work,” “works too slowly and doesn’t comprehend what they read,” “below standards” in decoding, reading comprehension, reading fluency, and writing rate.  The teacher also commented that Student struggled with assignment completion, peer relationships, class disruption, and emotional maturity. 

Based on the above-referenced information, Dr. von Hahn concluded that Student had “secure intelligence,” “suspected reading, likely phonics-based reading disability; suspected writing disorder, related to the above;” “cannot exclude ADHD,” and “cannot exclude anxiety.”  (P-2)   

Recommendations in the report included testing for eligibility for special education, if Student’s “learning difficulty is confirmed on his report card…[Student] presents as an intelligent child who has unexpected weaknesses in his performance speed.  Even if he does not qualify for specialized instruction…a comprehensive evaluation will lead to strategies that can help teaching staff support successful learning.”  (P-2)

11. By February 2023, Parent reported that Student still had not progressed another Fountas and Pinnell reading level.  On April 27, 2023, concerned about what they felt was a decline in Student’s performance and consistent with Dr. von Hahn’s recommendations, Parents placed a written request for a special education evaluation, as well as the report from Dr. von Hahn, in an envelope in Student’s backpack, and so informed Student’s classroom teacher by email on the same date.  The email further stated that Parents’ “concern is that his report card reflects that he is falling further behind in reading and writing each semester despite receiving reading support services.  I feel the evaluation may help to clarify his specific needs.”  (P-3, Mother)

12.  On April 28, 2023, the day after Parents submitted the special education evaluation request to Student’s teacher, but before the request had been forwarded to the special education department,  Mother received a telephone call from the Principal (Ms. Fulreader) and Assistant Principal (Ms. Omobono), who reported that Student’s scores on Acadience and I-Ready were “average,” stated that they did not feel that a special education evaluation was necessary, and offered to conduct other assessments outside of the IEP process.  In response to Mother’s inquiry, Ms. Fulreader and Ms. Omobono stated that the testing they offered would not assess for reading or writing disabilities, and further offered to consider putting Student on “SST.”  They offered to “hold onto” Parents’ request for evaluation.  (Mother, P-5)

13. After considering this conversation, Parents sent an email to Ms. Fulreader and Ms. Omobono reiterating their request to have Student evaluated for special education.  Ms. Fulreader responded “will do” in an email dated April 29, 2023. (P-5) The special education department received the referral on May 2, 2023.  (P-3)

14. On May 4, 2024, Chelmsford sent Parents an N-1 form proposing an initial evaluation to determine eligibility for special education, together with a consent form.  (S-12) On May 8, 2023, Parents consented, in writing, to the following assessments:  academic achievement, speech/language, educational, and psychological. (S-13)

15. On or about June 16, 2023, Chelmsford issued Student’s third term report card for first grade.  Student’s grades were approximately the same as they had been at the end of the second quarter.   (S-11)

,

16. In May and September 2023, Chelmsford conducted its initial evaluation of Student.  (S-4, 5, 6, 8, 10; P-5 – P-11)

17. The psychological assessment was conducted by a school psychologist, Rachel Leary, Psy.D.,[6] and consisted of the WISC-V[7], the BASC-3,[8] and behavioral observations in the test setting. On the WISC-V, Student’s overall score was in the “Exceptionally High” range.  Index scores were “High Average” (Processing Speed), “Above Average” (Verbal Comprehension, Visual-Spatial, and Working Memory), and “Exceptionally High” (Fluid Reasoning).  (S-10, P-8) Dr. Leary testified that Student “is an exceptionally bright little guy.”  (Leary)

18. The BASC questionnaire was completed by Student’s first and second-grade teachers and by Mother.  The first-grade teacher’s responses indicated that Student tended to withdraw in the classroom when confused, anxious or overwhelmed.  The second-grade teacher had no major concerns.  Parents had “mild concerns about unusual behaviors.”  (S-10, P-8) Dr. Leary testified that these slight elevations in BASC scores were mild, not pervasive, and had not continued between first and second grades; therefore, no intervention would be required.  (Leary)  Dr. Leary’s only recommendation was to encourage Student to develop self-advocacy skills for when he became frustrated or overwhelmed.  (S-10, P-8)

19. The speech-language assessment was performed by Heather Tassinari, MS, CCC-SLP, and consisted of a battery of standardized tests and informal observation of Student.  Test scores were in the “Average” to “Above Average” range for expressive and receptive language, with the exception of a slightly below average score in expressive one-word vocabulary. Ms. Tassinari reported that this lower score might have been the result of Student’s anxiety or fatigue.[9]  (S-8; P-11)

20. The academic assessment was conducted by Megan Iannalfo, a special education teacher, on September 11 and 13, 2023, and consisted of the Kaufman Test of Educational Achievement, Third Edition (KTEA-3) and the Comprehensive Test of Phonological Processing (CTOPP) (S-5)

The KTEA-3 is a nationally-normed standardized achievement test that measures certain reading, math, written language, and oral language skills.  Student’s overall score was “Average,” in the 61^st percentile.  Student scored in the 51^st percentile, or “Average” range in the Reading Composite of the KTEA-3, which encompassed “Average” scores for Letter and Word Recognition (58^th percentile) and Reading Comprehension (61^st percentile). 

Student’s Math Composite score was “High,” in the 91^st percentile.  In contrast, on the Written Language Composite, Student scored “Below Average” at the 19^th percentile; this composite core included Written Expression (19^th percentile) and Spelling (23^rd percentile).  Ms. Iannalfo observed that Student was comfortable and confident with math problems but became nervous during the writing portion of the evaluation, and had trouble with open ended questions, saying that he did not know what to write. Sentence starters were helpful for Student.  (S-5)

Ms. Iannalfo did not conduct a formal classroom observation of Student’s reading performance.  (Iannalfo)

21. The CTOPP measures phonological processing skills as they relate to reading.  These skill categories and Student’s respective scores in each, include phonological awareness (95^th percentile, “Superior”); phonological memory (75^th percentile, “Average”), rapid symbolic naming (68^th percentile, “Average,”) and “Alt. phonological awareness” (90^th percentile, “Above Average”).  On the multiple subtests within each of these categories, Student’s scores ranged from “Average” to “Above Average,” with no scores falling below the 50^th percentile.  (S-5)

22. The academic assessment report recommended strategies including but not limited to chunking work sessions, providing visuals such as number lines and phonics rules to support independence, use of graphic organizers and sentence starters to support writing, providing choices and examples for answering open-ended questions, extended time on tests, and positive praise.  (S-5)

23. Part B of the educational assessment, completed by the second grade general education teacher, Ms.Walker, consisted of a questionnaire, in which the teacher reported that Student did not appear to have challenges with attention, memory, communication, or interpersonal skills.  Additionally, Ms. Walker commented that Student was a “role model student,” who followed classroom rules, seemed happy, worked well with peers, and produced quality work. He found open-ended questions to be difficult.  In reading, Student had started second grade at Fountas & Pinnell guided reading level G.  He was able to apply phonics rules and knew many sight words. The teacher’s goals were for Student to improve reading fluency and comprehension. In writing, his first two Fundations Unit Assessments were 80% and 84%.  Student’s math skills were very strong.  (S-5)

24. The Team convened on October 10, 2023, to review the District’s evaluations. In addition to Parents, attendees were Kendra Hendrickson (Team Chair), Heather Tassinari (Speech Pathologist), Megan Iannolfo (Special Education Teacher), Rachel Leary (School Psychologist), Annan Walker (second grade teacher), and Donna Omobono (Assistant Principal). Neither Student’s first grade teacher nor any of Student’s reading interventionists attended the meeting.  It appears that there were no formal reports of Student’s progress with reading supports, apart from Fountas and Pinnell, Acadiance or I-Ready, that were available or reviewed at the meeting.[10]   

During the meeting, Parents opined that there was a severe discrepancy between Student’s cognitive level, which was above the 90^th percentile, and his performance in writing (19^th percentile) and reading composite (61^st percentile), both of which, according to Parents, indicated that Student has a learning disability affecting reading and writing.  (Mother) Parents also stated that despite receiving reading interventions for two years, Student’s performance had stagnated as of December 2022, and that Student did not advance a single Fountas and Pinnell level between that time until the end of the school year. (Mother)[11] 

At the conclusion of the meeting, the Team Chair, Kendra Hendrickson, reported that the Team had determined that Student did not have a disability.  Team members were not polled regarding their individual opinions on this issue.  Parents expressed their disagreement with this position, stating that they continued to believe that Student has a disability affecting reading and writing.  (Mother, Father) After the meeting, Ms. Omobono offered to support Student outside of the special education context, namely, through continued services from the reading interventionist, or from a reading specialist, with the addition of explicit goals and monthly progress reports to Parents, as well as through the District Classroom Accommodation Plan (DCAP).  (Mother, Father, P-26)

25. In an N-1 form issued on October 13, 2023, the District reported that it proposed a finding of “no eligibility” for Student.  The basis for this determination was that Student “does not have an identified disability, is making effective progress, and does not require specialized instruction.”  The N-1 form noted that Student “benefits from accommodations through the DCAP,” and proposed “measurable goals in reading and writing through a Tier 2 intervention with data and monitoring of [Student’s] progress,” as well as monthly check-ins with Parents.  Lastly, the N-1 form reported that the District had relied on evaluation reports and input from Parents and teachers in making its determination. (S-3) 

26. According to Father, the District did not input correct information on forms that the Team was required to use to determine existence of a specific learning disability.  Further, Father testified that the District did not correctly use a “scientific research-based intervention as an eligibility determination procedure,” because it did not gather or rely on data from Student’s reading interventions.  As such, according to Father, the District was required to, but did not, apply an IQ/achievement discrepancy model.  Had it done so, Student would have been found eligible for special education because of the severe discrepancy between Student’s very high IQ scores and his average or below average scores in aspects of reading and written expression.  (Father, P-19, P-20)

27. Several school-based evaluators testified as to their views of Student’s evaluation results and the Team process.  School psychologist Rachel Leary testified that while, in private practice, she is qualified to diagnose learning disorders, she further stated that “it is, in fact, not allowed for a school psychologist to make a diagnosis of a learning disorder.  It’s a Team decision to make an eligibility choice around a learning disability.” (Leary)  Based on the CTOPP, Dr. Leary believed that Student did not need intervention in the area of phonological processing. Based on all data, including discussion of Student’s reading interventions, Fountas and Pinnell scores, and standardized test scores, Dr. Leary did not believe that Student presented with a specific learning disability in reading or writing.[12] 

28. Megan Iannolfo, the special educator who had conducted academic testing, testified that Student had some weaknesses in written expression, but responded well to supports such as sentence starters.  She agreed with other school-based Team members that Student did not have a learning disability.  (Iannolfo)

29. Kendra Hendrickson, who had been the Team chairperson during the 2022-2023 school year, testified that the Team reviewed relevant information, including evaluation reports and reports of Student’s response to Tier 2 interventions.[13]  Ms. Hendrickson believed that the determination of ineligibility was correct, because Student was making expected progress in all areas of weakness, with interventions.  (Hendrickson)

30. Assistant Principal Donna Omobono[14] described the tiered intervention services that Student had been receiving since Kindergarten.  She stated that Chelmsford gathers information on the progress of all students, using multiple data points.  The District’s two reading specialists then analyze this data, and determine which students meet criteria for tiered interventions in skill areas such as reading and writing.  These interventions take the form of providing students with strategies in areas such as fluency and comprehension. 

Services are delivered by, or under the supervision of, the student’s classroom teacher. Students who receive tiered services do not have individual plans; rather, they receive support in skill areas that are identified as lagging.  Intervention staff meet regularly with classroom teachers.  The progress of all students, including those using tiered services, is assessed three times per year, using Fountas and Pinnell, I-Ready, and Acadience (also known as DIBELS), and parents receive progress reports.     

Student’s tiered supports in Kindergarten consisted of five meetings per week with a reading specialist.  In first grade, Student’s services were provided by a teacher who was dually-certified in general and special education.  During second grade, Student received support from a former ELA teacher.  All interventionists must hold at least a Bachelor’s degree, and most interventionists employed by Chelmsford are certified teachers or former teachers.  (Omobono)

31. Ms. Omobono also testified regarding Student’s performance on school-wide, general testing. In September 2023, at the beginning of second grade, Student was assessed on the I-Ready examination. He achieved an overall score in the 64th percentile (based on national norms).  On the I-Ready components, Student “tested out” of phonological awareness, got a “max score” in high frequency words, was at grade level for vocabulary, and was approaching grade level for phonics and comprehension.  (Omobono, P-14) 

32. On the Acadiance test, which the District administers three times yearly and which measures various components of reading skills, Student made steady progress during first grade in phoneme segmentation, nonsense word fluency, and oral reading fluency.  (Omobono, P-16)  Ms. Omobono testified that while the Fountas and Pinnell test can be a useful tool, it is non-standardized and somewhat subjective.  (Omobono)

33. Ms. Omobono agreed with the Team’s finding of “no eligibility” based on her review of all available information, including evaluations, the District-wide testing referenced above, as well as that classroom teachers had not alerted her that Student needed more intervention that what he was already receiving.  (Omobono)

DISCUSSION

Legal Background

Eligibility

To be eligible for special education pursuant to Federal and Massachusetts law, a child must (1) have a qualifying disability or disabilities, as determined by a duly constituted Team, after an evaluation conducted in conformity with applicable statutory and regulatory provisions, and (2) by reason of that disability, require specialized instruction in order to progress effectively in the general curriculum.[15] If a child does not have one or more disabilities, or has a disability, does not require specialized instruction, then the child is not eligible for special education services under the IDEA.[16]

The IDEA defines a “child with a disability” as a child:

with intellectual disabilities, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance (referred to in this chapter as “emotional disturbance”), orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and (ii) who, by reason thereof, needs special education and related services.  20 USC §1401(3)(A)

“Special Education” is defined by the IDEA as “specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability…”  20 USC §1401(29).  Massachusetts special education regulations contain similar language at 603 CMR 28.02(20). 

In Massachusetts, an “eligible student” is “a person aged three through 21 who has not attained a high school diploma or its equivalent, who has been determined by a Team to have a disability(ies), and as a consequence is unable to progress effectively in the general education program without specially designed instruction or is unable to access the general curriculum without a related service.”  603 CMR 28.02(9). 

“Progress effectively” is defined in Massachusetts regulations at 603 CMR 28.02(17) as follows:

Progress effectively in the general education program shall mean to make documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to chronological age and developmental expectations, the individual educational potential of the student, and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district…

As referenced above, whether a child has a disability must be determined after a comprehensive evaluation.  Evaluations must be conducted with parental consent, and must “use a variety of strategies to gather relevant functional, developmental and academic information…that may assist in determining…whether the child is a child with a disability…” 20 USC §1414(b)(2) Further, among other things, no “single measure or assessment” may be used “as the sole criterion for determining whether a child is a child with a disability.”  20 USC §1414(b)(2)(B).  In addition, evaluations must be “used for purposes for which the assessments or measures are valid and reliable,” and must be “administered by trained and knowledgeable personnel…in accordance with any instructions provided by the producer of such assessments…”  20 USC §1414(b)(3). 

Specific Learning Disabilities

The IDEA defines a “specific learning disability” as

a disorder in 1 or more of the basic psychological processes involved in understanding or in using language, spoken or written, which disorder may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations…Such term includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia…Such term does not include a learning problem that is primarily the result of visual, hearing, or motor disabilities, of intellectual disabilities, of emotional disturbance, or of environmental, cultural, or economic disadvantage.  20 USC §1401(30)(A)-(C) 

The corresponding Federal regulation, 34 CFR §300.8(10) tracks the statutory language, as does the pertinent Massachusetts regulation at 603 CMR 28.02(j). 

Federal regulations require states to adopt additional procedures for identifying children with specific learning disabilities at 34 CFR §300.307-311.  Under these regulations, states must adopt criteria for determining whether a child has a specific learning disability, “must not require the use of a severe discrepancy between intellectual ability and achievement” for such determination; and “must permit the use of other alternative research-based procedures for determining whether a child has a specific learning disability.”  34 CFR §300.307(a). 

The evaluation team must include a student’s classroom teacher and “at least one person qualified to conduct individual diagnostic examination of children such as a school psychologist, speech-language pathologist, or remedial reading teacher.”  34 CFR §300.308. 

This team may determine that a child has a specific learning disability if the child does not “achieve adequately” for the child’s age, or meet grade-level standards in oral expression, listening comprehension, written expression, basic reading skill, reading fluency, reading comprehension, math calculation or math problem-solving, and, the child does not make sufficient progress to state-approved grade-level standards  in one or more of the above-listed areas “when using a process based on the child’s response to scientific, research-based interventions; or the child exhibits a pattern of strengths and weaknesses that the Team believes is relevant to identification of a specific learning disability, using appropriate assessments…”  34 CFR §300.308.  (Emphasis supplied)

When considering the presence or absence of a specific learning disability, the Team must determine that the student’s challenges are not the result of visual, hearing, motor, intellectual, or emotional disabilities, cultural factors, environmental or economic disadvantage, or limited English proficiency, or lack of appropriate instruction. 34 CFR §300.309. The evaluation must include a classroom observation of the student. 34 CFR §300.310.  Lastly, the regulation requires the Team to thoroughly document the basis for its findings, including, if applicable, the data showing the student’s response to interventions.  34 CFR §300.311.

While there exist no parallel Massachusetts regulations, the Massachusetts Department of Elementary and Secondary Education (DESE) has made clear that Districts are required to adhere to the Federal regulations referred to above.  Additionally, DESE has issued forms and flow charts to support school districts in compliance with the Federal requirements.   

            Burden of Proof

In a due process proceeding to determine whether a school district has offered or provided FAPE to a child or whether the school district has deprived a child of FAPE because of procedural missteps, the burden of proof is on the moving party.  In the instant case, as the moving party, Parents bears this burden.  That is, in order to prevail Parents must prove, by a preponderance of the evidence, that Chelmsford was incorrect when it found Student to be ineligible for special education services. Schaffer v. Weast, 546 U.S. 49, 44 IDELR 150 (2005). 

Parents also bear the burden of proving that Chelmsford committed any procedural violations, and that these violations that resulted in a denial of FAPE to Student, or excluded Parent from meaningful participation in the Team process.  Pihl v. Mass. Department of Education, 9 F.3d 184 (1^st Cir. 1993).[17] 

Analysis

After carefully reviewing the evidentiary record and applying the relevant law as outlined above, I conclude that Parents have not met their burden of proving that Chelmsford’s finding of “no eligibility” in October 2023 was erroneous.  My reasoning follows. 

At the outset, it is important to note that in making its determination, the Team was only required to examine the information available to it at the time it convened.  It is well-settled that “an IEP is a snapshot, and not a retrospective…taking into account what was objectively reasonable…at the time the IEP was promulgated…”  Roland M. v. Concord School Committee, 910 F.2d. 983, 992 (1^st Cir. 1990); In Re: Student v. Springfield Public Schools, BSEA No. 2202440 (Kantor-Nir, 2023). The same reasoning applies to eligibility decisions; the Team could only consider the information available to it at the time of the meeting.  Information that may have become available after the meeting of October 10, 2023 has no bearing on the validity of the Team decision made on that date.

As such, the starting point in the analysis is to determine what information was available to, and considered by, the Team in October 2023, and whether that information supported a “no eligibility” finding.  I turn, first, to the District’s evaluation reports. The psychological evaluation, consisting of the WISC-V and BASC-3, showed that Student is highly intelligent, with well-developed cognitive skills in all domains, including very strong language skills.  Further, while Student’s first grade teacher had reported that Student tended to withdraw in class at times, and that Parent noted some mildly unusual behaviors, neither of these reports indicated that these issues were severe or impeded Student’s learning.  Moreover,  Student’s then-current second grade teacher, who did not testify at hearing, but who attended the Team meeting, did not report significant emotional or behavioral difficulties.

The formal academic achievement assessment utilizing the KTEA indicated that Student had average to above-average skills in all areas tested, except for spelling and written expression, in which he scored “Below Average,” in the 19^th and 23^rd percentiles, respectively.  On the CTOPP,  Student demonstrated very strong (“Average” to “Superior”) performance on all phonemic awareness skills

The school psychologist, testified that based on her assessment as well as the entirety of information presented to the Team, that, at the time of the meeting, she did not believe that Student presented with a specific learning disability. She further testified that exceptionally-strong cognitive ability, such as that demonstrated by Student, does not necessarily translate into exceptional academic achievement scores, particularly when a student is newly-exposed to instruction.  She further testified that a discrepancy between cognitive ability and academic performance does not necessarily indicate a disorder or disability, especially where, as here, the Student is accessing and progressing in the curriculum.  I find her testimony on this issue to be credible and persuasive. 

The speech-language evaluation revealed that Student had “average” to “above-average” language skills.  He scored “below average” in a single subtest (one-word expressive vocabulary), but the evaluator noted that this score may have been affected by Student’s increasing anxiety and fatigue at the time the subtest was administered. Parents did not dispute the report of the speech-language pathologist. 

In addition to school-based testing, the Team reviewed the evaluation of the developmental pediatrician.  This evaluation report indicated that Student had a “suspected” phonics-based reading disorder and writing disorder, as well as “suspected” ADHD and anxiety.  The evaluator did not formally diagnose such disorders; rather, he recommended a school-based evaluation if Student’s report cards indicated that he was struggling in these areas.  The evaluator did not attend the Team meeting or testify at the hearing, and, therefore, was unavailable to elaborate on his report.  Neither party disputed this evaluation at the Team meeting or at the hearing. 

The Team also discussed Student’s scores and progress on school-wide testing (I-Ready, Acadiance, and Fountas & Pinnell), as well as his classroom functioning.  I credit the testimony of Ms. Omobono that these test scores, taken together with all other relevant information such as classroom performance and school-based evaluations, indicated that as of the time of the Team meeting, Student was accessing and making progress in the general curriculum.  Additionally, I credit her testimony that Student was making progress in his areas of weakness, with the support of the Tier 2 interventions that he was receiving.  Parents assert that he was falling increasingly behind, but, other than assertions of stagnation on the Fountas & Pinnell, which is a non-standardized and subjective test instrument, provided no evaluations or witness testimony to support this contention. [18]  

In light of the foregoing, I find that the information available to the Team on October 10, 2023 supported its conclusion that Student did not have a specific learning disability, and, therefore, was not eligible for special education at that time.  Parents have not met their burden of proof that the Team’s decision on that date was incorrect. 

In addition to their substantive disagreement with the Team’s eligibility decision, Parents assert that the District made procedural errors, which had they not occurred, would have resulted in a finding of eligibility.  An examination of these assertions shows that if such errors occurred, they neither deprived Student of FAPE nor prevented Parents from participating in the Team process.  First, Parents objected to the approximately three-day delay by the District in transmitting their request for an evaluation to the special education department, as well as alleged attempts by the school principal and assistant principal to dissuade Parents from pursuing special education.  While such delay, and dissuasion attempts (if they occurred) should not have taken place, ultimately, the evaluation and subsequent Team meeting occurred within the requisite timelines. 

Parents also argued that the Team pre-determined their eligibility finding, based on District-based Team members assembling in the meeting room before Parents entered.  Relevant staff testified that no such predetermination took place, and Parents presented no evidence to the contrary.  Moreover, the record shows that Parents were active participants in the Team meeting. 

Parents asserted that the District’s omission of a formal observation of Student’s reading performance in the classroom constituted a procedural error, since such observation is required by 34 CFR §300.310.  In light of Ms. Iannalfo’s comprehensive testing of Student, which showed strong phonological and reading skills, and slightly sub-average writing skills, I find that observation would not have been likely to yield additional information that would have changed the outcome of the Team meeting.  As such, I find that, in this particular case, the failure to observe Student constituted harmless error.  The District is reminded, however, that Federal regulations require such observations, which, in many cases, may yield valuable information that is not otherwise available, and is cautioned not to omit observations in future evaluations. Based on the foregoing, I find that Parents have not met their burden of proving that the District committed procedural errors that deprived Student of a FAPE or impeded Parents’ ability to participate in the Team process.     

CONCLUSION AND ORDER

In then instant case, Parents have not met their burden of proof that (1) Chelmsford was incorrect when it determined, on October 13, 2023, that Student was not eligible for special education, or (2) that Chelmsford committed procedural violations in October 2023 which deprived Student of a FAPE and/or impeded Parents’ ability to participate in the Team process. 

Notwithstanding the above, it is clear from the record that, since Kindergarten, Student has experienced challenges in components of reading (i.e., comprehension and fluency) as well as with written expression, and that while he has made progress with the support of various interventions, it is not at all clear that such support will be sufficient as academic demands increase in third grade and beyond. 

For this reason, I strongly suggest that the District closely monitor and collect data relative to Student’s progress in his areas of weakness, and provide this data to Parents on a regular basis. I further strongly suggest that during the 2024-2025 school year, the District conduct an updated eligibility evaluation which targets Student’s areas of suspected disability, and which includes reports from classroom observation(s) of Student’s reading and writing performance, as well as data on Student’s progress within Tier 2 interventions, in addition to any new or updated evaluations.     

By the Hearing Officer,

/s/Sara Berman

____________________              

Sara Berman

Dated:  October 25, 2024

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[1] “Guardian” is the term used by the court reporting service for the person responsible for overseeing the stenographer(s). 

[2] At the beginning of the hearing, Parents clarified that they would not be seeking compensatory relief even if they prevailed at the hearing. 

[3]Although Student ultimately was found to be ineligible for special education as of October 2023. Chelmsford was responsible for meeting the procedural requirements of federal and state special education statutes by identifying and evaluating Student as potentially eligible, and conducting a Team meeting that complied with these provisions. 

[4] Mother is a family nurse practitioner specializing in pediatrics and urgent care. She testified that she is a “first contact” for other parents who inquire about their children’s developmental progress in many areas, including basic early academic tasks such as counting and letter recognition.  (Mother) 

[5] The first-grade teacher did not testify at the hearing.

[6] Dr. Leary holds Master’s and Doctoral degrees, as well as licensure, in clinical psychology. She has been employed by Chelmsford as a school psychologist since February 2023.  (Leary)

[7] Wechsler Intelligence Scale for Children, Fifth Edition.

[8] Behavior Assessment System for Children, Third Edition

[9] Ms. Tassinari did not testify at the hearing.

[10] Mother testified that District Team members were all in the meeting room before Parents were called in, and was concerned that they were discussing Student’s eligibility in Parents’ absence.  Ms. Iannolfo testified credibly that such discussion did not occur. 

[11] Parents testified that the Part A of the Educational Assessment erroneously omitted reference to the two years of reading intervention that Student had received because he was not meeting reading benchmarks.   Team members acknowledged this omission, and a corrected version of the report was issued on January 10, 2024.  (Parents, P-6)

[12] Dr. Leary noted that the IQ/achievement discrepancy model was no longer in use in clinical practice to determine the existence of a learning disability.  She also testified that to expect children such as Student with IQ scores in the “gifted” range to demonstrate academic achievement at the same level as their cognitive abilities, especially when exposed to material on which they have received limited or no instruction,  can produce anxiety.  (Leary)

[13] Ms. Hendrickson holds a Master’s degree and is certified as a school psychologist and special education administrator.  As of the hearing date, she was no longer employed by Chelmsford.  (Hendrickson)

[14] Ms. Omobono has been employed by the District for 21 years.  She holds an undergraduate degree in special education and a Master’s degree in curriculum and instruction.  Ms. Omobono taught second grade for 13 years and has served as Assistant Princip.al for six years. (Omobono)

[15] See 20 USC §§1401(3)(A), (29); MGL c. 71B, §1; 603 CMR 28.01

[16] If the child has a disability but does not require specialized instruction, the child may be eligible for an accommodation plan pursuant to Section 504 of the Rehabilitation Act. 

[17] Parents have alleged procedural violations in this matter; however, they do not seek compensatory services, which is the usual remedy for such violations.  Diaz-Fonseca v. Comm. of Puerto Rico, 451 F.3d 13 (1^st Cir. 2006). 

[18] Parents argue that the District failed to sufficiently monitor, or provide data regarding, Student’s progress with Tier 2 interventions; therefore, the District was required to use a “severe discrepancy” model to determine whether Student had a disability.  It is true that Chelmsford did not provide the Team or Parents with regular data other than the school-wide testing referenced above; however, Parents have presented no factual or legal basis to support their assertion that the “severe discrepancy” model must be utilized. I am, therefore, not persuaded by Parents’ argument, particularly given credible testimony of Dr. Leary that the “severe discrepancy” model is no longer used in clinical practice.