COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Longmeadow Public Schools
BSEA# 01-3465
DECISION
This decision is issued pursuant to M.G.L.C. 71B and 30A, 20 U.S.C. 1401 et seq ., 29 U.S.C. 794 and the regulations promulgated thereunder. A hearing was held in the above-entitled matter on July 17, 2001, at the Springfield, MA Offices of Catuogno Reporting Service. Those participating in all or part of the proceeding were:
Father
Dena Bailey Speech-Language Pathologist, Longmeadow Public Schools
Jennifer Ronning Psychologist, Longmeadow
Brooke Sledciewski Preschool Teacher, Longmeadow
John Kelley Director of Pupil Services, Longmeadow
Claire Thompson Attorney for Longmeadow
Lindsay Byrne Hearing Officer, BSEA
The official record of the hearing consists of documents submitted by the Parents marked P-A-Q and S-V, documents submitted by the School marked S-1-27, and approximately 6 hours of recorded oral testimony. Both parties made oral closing arguments and the record closed on July 17, 2001.
Issue
1. Whether the May 31, 2001 Finding of the Longmeadow Public Schools that the Student is not eligible for special education is correct?
Parent Position
The Student has received special education and related services through Early Intervention programs and the public school. She continues to have difficulty with communication, attention, social-emotional and self-help skills. She has not made sufficient progress in the acquisition of age appropriate skills to warrant terminating the special education as she enters Kindergarten. The Parents seek a continuation of special education services in the context of a full day Kindergarten placement, with direct thirty minute speech therapy services twice weekly, and one thirty minute occupational therapy session weekly.
School Position
The Student does not have a disability and she has made effective progress in the regular preschool curriculum, therefore she is not eligible for special education. She is ready for a regular Kindergarten program. Placement in a half-day or full day Kindergarten is typically a regular education decision, allocated by lottery.
Findings of Fact
1. The Student is a four and a half year old (d.o.b. 10/13/96) who will be entering Kindergarten in September 2001. When she was two, the Student received home based early intervention services. She was referred for an initial evaluation by the Longmeadow Public Schools on September 28, 1999, in anticipation of her third birthday. On November 21, 1999, the Team developed an IEP calling for the Student’s placement in an integrated preschool program for 2.75 hours five days a week. The IEP also provided for direct speech language therapy twice a week in half-hour sessions. The Team found that the Student functioned approximately a year behind her age peers in the communication area, and that this weakness affected other areas. Therefore the IEP set out goals in the communication, social/emotional, cognitive and self-care domains (Father; P-B, S-1; P-F; S-2).
2. Brooke Sledciewski was the Student’s preschool teacher during both the 1999-2000 and 2000-2001 school years. She testified that the Student began preschool in January 2000, with a mild speech/language disability. Other than that one weakness, the Student presented and functioned as a “typical” child. She was immature and had some difficulties with attention and processing abstract information. The Student also had poor conflict resolution skills. Ms. Sledciewski testified that the Student made good progress in all areas of the regular curriculum through the remainder of the 1999-2000 school year. The Student attended a preschool summer program as a “typical” child and did not receive any direct special education or related services in the summer of 2000 (S-6,8, 9,10; P-G, Sledciewski; see also testimony of Bailey).
3.The Team reconvened on November 21, 2000. It identified receptive language and articulation, weak attention and poor recall, as continued areas of difficulty. The Team developed an IEP running from November 2000 thorough November 2001 calling for the Student’s continued placement in the integrated preschool with two half-hour sessions of speech therapy, one individual, one small group. At the Team the parents requested a full day Kindergarten. On January 29, 2001, the parents rejected the IEP because it did not provide for a full day Kindergarten placement for the Student beginning in September 2001 (S-10, P-G; S-12, P-H; S-13, P-J; Father; Sledciewski).
4.By the third quarter of the 2000-2001 school year, progress reports from both the special education teacher, Ms. Sledciewski, and the speech-language pathologist, Ms. Bailey, indicated that the Student had met her IEP goals, was making progress in the regular curriculum, and was functioning within age expectations. On a speech-language screening instrument used with the Student on April 10, 2001, the Student’s responses indicated that she had mastered all age-appropriate speech sounds and did not display any weaknesses in receptive or expressive language (Sledciewski; Bailey; S-11, 14, 15, P-K; S-21). The Director of Pupil Services, John Kelley, notified the Parents that, based on the Student’s progress and performance, termination of special education services should be discussed (S-15). The Parties agreed to re-evaluate the Student before terminating services (S-8; Father).
Ms. Sledciewski testified that during the 2000-2001 school year in the integrated preschool, the Student continued to make effective progress in the regular curriculum and to close the developmental gap in speech-language skills and social behavior. She stated that the Student’s skills conformed to regular age norms and expectations in all areas, and that she functioned as a typical student in all aspects of preschool development. By the end of the school year, 2001, Ms. Sledciewski no longer had any concerns about the Student’s ability to maintain attention and focus on a task. Ms. Sledciewski stated that her own daily classroom observations and comparisons were supported by the Student’s performance on the Learning Assessment Profile and confirmed by the evaluations of the school psychologist and speech-language pathologist when they were discussed at the end of the year Team meeting. Ms. Sledciewski told the Team planning for the transition between preschool and Kindergarten that she believed the Student did not have any special needs (Sledciewski; S-11, 14, 15, P-K).
5. Jennifer Ronning is the school psychologist for Longmeadow Public Schools. Although new to Longmeadow (March ’01), Ms. Ronning testified that she had worked for six years as a psychologist in Ohio and had evaluated 75-100 children making the transition from preschool to kindergarten during that time. She testified that she did not know the Student prior to administering a “basic standardized test”, the Kaufman Assessment Battery for Children, to her on May 17, 2001. Ms. Ronning chose the Kaufman because it provides a reliable measure of both cognitive function and achievement, and can internally demonstrate a discrepancy between the two that might point to the existence of a specific learning disability.
Ms. Ronning testified that the Student was a diligent and cooperative test taker. Although she required redirection in some areas, the level was typical and age appropriate. Ms. Ronning had no concerns about the Student’s attention skills and did not recommend further assessment in that area. The Student’s performance on the test indicated that she functioned “overall in the solid average range of cognitive processing and achievement”. There was no significant discrepancy between the Student’s cognitive functioning and her achievement. There were no discrete subjects or areas that were weaker than average. The Student’s average performance on the Kaufman was consistent with Ms. Ronning’s observations of the Student in the testing session, the description of her adaptive functioning as reported by the Mother and recorded on the Vineland, and the reports of the other Team members. Ms. Ronning therefore concluded that the Student did not have a specific learning disability and is functioning overall within the average range for her age (Ronning; S-19). I found Ms. Ronning to be a thoughtful and articulate witness and credit her testimony in full.
6. Dena Bailey has been a speech-language pathologist for Longmeadow for eleven years. She first met the Student during the summer of 2000, but did not provide services to her. Ms. Bailey was a member of the Student’s November 21, 2000 Team. She reviewed the Student’s speech-language evaluations and progress reports and noted that the Student had made significant gains in speech and language functioning during the life of the 1999-2000 IEP. In November 1999, the Student displayed numerous articulation errors and was unable to complete a standardized language evaluation (CELF) due to attention difficulties and poor comprehension. By November 2000, Ms. Bailey found the Student to have age appropriate receptive and expressive language with articulation errors within the range of normal. Nevertheless Ms. Bailey recommended continuation of speech-language services in the 2000-2001 IEP (Bailey; S-10, P-G).
On April 10, 2001, Ms. Bailey administered a speech-language screening instrument to the Student. This non-standardized instrument is given to all pre-schoolers scheduled to transition to kindergarten in order to catch any speech-language issues early. The results are shared with parents and kindergarten teachers. The Student’s performance on the screening instrument indicated no difficulties with her speech or language skills. The Student had demonstrated no dysfluency, no articulation errors, and no processing or sequencing weaknesses (S-21; Bailey). In addition Ms. Bailey completed the speech-language portion of the Learning Assessment Profile, with parental permission. The Student demonstrated speech-language skills above her age level, with all necessary foundational skills achieved (S-21; Bailey).
As part of a formal evaluation, Ms. Bailey administered the Clinical Evaluation of Language Fundamentals – Preschool (“CLEF”) to the Student on May 22, 2001. The Student achieved an overall score in the average range, consistent with Ms. Bailey’s observations and the reports of the speech-language assistant Ms. Canjialosi. The test results did not support a finding of a language-based learning disability (S-22; Bailey).
Based on formal and informal observation, service provider reports, progress reports, screening results and evaluations, Ms. Bailey testified that: the Student has met all the goals and objectives of the 1999-2000 IEP; the Student has met all the goals and objectives of the 2000-2001 IEP; the Student meets standardized age expectations in the area of speech and language; the Student has age appropriate daily functioning in the area of communication; and the Student is currently demonstrating skills at kindergarten level. Ms. Bailey concluded that the Student no longer requires speech and language services (Bailey). I found Ms. Bailey to be a candid and thorough witness and credit her testimony in full.
7.The Team met on May 29, 2001, to discuss the evaluation results. On May 31, 2001, Longmeadow issued a Finding of No Special Needs which contained the following narrative:
[The Student] has been evaluated by Longmeadow Pupils Services staff. Based upon test results, [The Student] does not meet criteria levels for special education services. In the occupational therapy evaluation, [the Student] demonstrated average fine motor, visual motor and visual perceptual skills. In the Education Evaluation, [the Student} achieved solid average scores in all areas assessed – gross motor, fine motor, pre-writing, cognitive, language, self-help, and personal/social. In the psychological evaluation, testing indicated that [the Student] is currently functioning overall within the solid average range of cognitive processing and achievement. Adaptive skills were assessed to be in the ‘adequate’ or average range. At this time, [the Student] is not displaying signs of a learning disability. In the Speech/Language assessment, testing indicated that [the Student]’s overall performance falls within normal limits. Test results do not suggest a language-based learning disability; therefore, she does not meet criteria for language intervention.
[The Student] has made significant progress during her years in the Preschool program. She is enthusiastic about school and should make a smooth transition to kindergarten.
(S-24; see also S-19, 20, 21, 22, 23)
On June 5, 2001, the Parents rejected the finding of ineligibility and requested a hearing (P-V).
7. John Kelley, Director of Pupil Services for Longmeadow, testified that Longmeadow has both full day and half-day kindergarten programs. Entrance into the full day program is by lottery. Participants pay tuition for the longer day. Only students whose Individualized Education Plans call for full day special education programming are guaranteed spaces in the full day kindergarten. Typically these students have significant disabilities and have received full day programming in preschool (Kelley).
8. The Father testified that, other than the Student’s first day of preschool, he did not observe the Student functioning in the preschool environment during the 2000-2001 school year, nor did he arrange to have any expert evaluator observe the Student during the school year. The Father did not observe the full day kindergarten during the 2000-2001 school year, nor did he have an expert evaluator observe the full day kindergarten (Father).
9. There are no evaluations in the hearing record that conclude that the Student currently has a disability.
Findings and Conclusions
To be eligible to receive special education services in Massachusetts a student must have one of more of the disabilities set out at 603 CMR 28.02 (7) and as a consequence of having that disability, must be unable to progress effectively in, or access, the regular education program without specially designed instruction or services. 603 CMR 28.05 (2)(a); 603 CMR 28.02(9); see also 34 CFR 300.7. The Team is charged with the responsibility for determining whether evaluations of a student establish that the student has a listed disability. If the Team determines that a student has a disability, then it must determine whether that disability is causing the student to fail to make effective progress in the general curriculum. If the answer to both these questions is yes, then the student will be found eligible for special education and/or related services.
In this case, based on the evaluations it had before it on May 29, 2001, the Team determined that the Student did not have a disability. Based on the preponderance of the credible evidence presented at the hearing, I reach the same result. None of the evaluations conducted prior to the Team meeting found the Student to have a disability. On the contrary the Occupational Therapist determined the Student functioned within normal limits (S-20); the Speech Language Pathologist found the Student to have age appropriate skills in all communication areas (S-22); the Psychologist found the Student to have average cognitive functioning and average cognitive skill achievement. (S-19). These evaluations were all consistent with the classroom teacher’s observations of the Student’s day to day functioning (Sledciewski). There are no evaluations in the record which reach a different conclusion, or diagnose any disability. There is no support in this record for a finding of disability. The record contains one letter from the Student’s pediatrician recommending that she continue to receive special education services (P-O). It does not, however, contain any specific diagnosis which might constitute a disability set out at 603 CMR 28.02 (7). Therefore I give this recommendation little weight. Without a disability, a student is not entitled to receive special education services.
The Father argued that the Student requires special education because there is a strong family history of learning disabilities. Entitlement to special education is an individualized determination based on individual circumstances and performance. The law does not permit assumptions about this Student’s learning profile to be made on the basis of familial characteristics.
The Father also argued that the Student “could not” have made sufficient progress between the time of her initial entry into a special education program in the winter of 1999 and her evaluation in April/May of 2001, to justify terminating special education services. The record, however, clearly demonstrates that she did. Indeed, this Student seems to exemplify the promise of early, intensive special education intervention that with early identification and appropriate services, some disabilities can be remediated or ameliorated sufficiently to permit children to participate fully in the mainstream of public school life.
Order
The Finding of Ineligibility for Special Education issued by Longmeadow Public Schools with regard to this Student on May 21, 2001, is affirmed.
___________________ __________________________
Date Lindsay Byrne, Hearing Officer