Mary and Hopkinton Public School – BSEA # 07-0982

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In re: Mary¹ and Hopkinton Public School

BSEA#07-0982

DECISION

This decision is rendered pursuant to M.G.L. Chapters 30A and 71B; 20 U.S.C. §1400 et seq.; 29 U.S.C. §794; and the regulations promulgated under these statutes.

A hearing in the above-entitled matter was held on November 7, 8 & 9, 2006 at the Bureau of Special Education Appeals in Malden, MA and on December 12, 2006 at Catuogno Court Reporting in Worcester, MA. The record remained open for receipt of written final arguments until February 6, 2007.

Those in attendance were:

Mother

Father

Laura Triosi Carroll School 4 th Grade Teacher

Eileen Antalek Educational Psychologist/Consultant

Kathleen Back Parents’ Advocate

Pamela O’Sullivan Attorney for Parents

Trudy Sack Director of Special Education, Hopkinton Public Schools (hereafter, HPS)

Frances Coutinho Team Chairperson, HPS

Teresa Cathers-Schiffman School Psychologist, HPS

Kathleen George 3 rd Grade Teacher, HPS

Beth Koziara 3 rd Grade Learning Specialist, HPS

Jessica Esdale 4 th Grade Teacher, HPS

Jean Alexander 4 th Grade Learning Specialist, HPS

Martha Starr Principal, Hopkins School, HPS

Mary Joann Reedy Attorney for HPS

Thomas Houton Court Reporter

Laurie Jordan Court Reporter

Heidi Bates Court Reporter

Darlene Coppola Court Reporter

Raymond Oliver Hearing Officer, Bureau of Special Education Appeals

The evidence consisted of Parents’ Exhibits labeled P-1 through P-65; HPS’ Exhibits labeled S-1 through S-48; and approximately 21 hours of oral testimony.

HISTORY/STATEMENT OF THE CASE

Mary is a 10 year old girl who resides with her parents and family in Hopkinton, MA. Mary currently attends the Carroll School, a private day school placement. Mary was placed at Carroll School unilaterally by Parents for the 2006-2007 school year.

Mary began in HPS midway through her kindergarten year (2002-2003). In April 2003 Parents requested a team evaluation. Multiple HPS evaluations and observations were done in May-June 2003 with a June 2003 team meeting and a finding of no eligibility for special education services. (See P-1 through P-9; S-9; S-24 through 30.) During her 1 st grade year Mary was re-evaluated by HPS in February-April 2004 (P-12 through 17; S-17 through 23) and was found eligible for special education services. An Individual Education Plan (IEP) was developed for April 2004-April 2005, and was accepted by Parents (P-18, 19; S-13).

In September 2004 Mary’s 2 nd grade teacher recommended additional reading services which were added to her IEP via IEP Amendment and were accepted by Parents (P-22; S-11). In March 2005 Parents had Mary privately evaluated at Children’s Hospital (CH). This CH evaluation was made available to Parents in June 2005 but not shared with HPS until November 2005 during Mary’s 3 rd grade year (testimony, Mother; Coutinho). Meanwhile, in April 2005, a new IEP had been developed by HPS and accepted by Parents covering April 2005 – April 2006 (P-26, 27; S-9). In November 2005 a team meeting to consider the CH evaluation look place. No specific actions were taken except moving Mary’s next IEP team meeting to an earlier date (P-30; S-8).

In January-February 2006 Parents had Mary privately evaluated at Educational Directions. A copy of this evaluation (P-32; S-15) was received by HPS in late March 2006. Meanwhile a team meeting had taken place on March 16, 2006 and an IEP was developed for March 2006-March 2007 (P-34; S-4). The team met again on April 3, 2006 to consider the private evaluation and developed a new IEP covering April 2006-March 2007 (P-35).

On April 6, 2006 Parents wrote to Dr. Sack, Special Education Director of HPS, regarding their concerns about the proposed IEP for Mary (P-36). Parents then met with Dr. Sack who arranged for another team meeting to address Parents’ concerns and to discuss HPS’s proposed IEP and placement for Mary (P-39, 40, 42; S-3A; testimony, Mother; Sack). A team meeting was held on June 5, 2006 in which HPS responded to Parents’ written concerns (P-43; S-3B; testimony, Coutinho; Sack; Mother; Father). HPS proposed a new IEP on June 8, 2006 (P-44; S-2) which was rejected by Parents on August 14, 2006.

Meanwhile Parents had applied to Carroll School for Mary for the 2006-2007 school year and Mary was accepted on May 23, 2006 (P-51). On July 19, 2006 Parents’ attorney wrote to Dr. Sack requesting HPS funding for Mary at Carroll School (P-47). On July 26, 2006 HPS’ attorney wrote to Parents’ attorney that HPS would not place or fund Mary at Carroll School because HPS’ IEP was reasonably calculated to provide the education program to which Mary was entitled – therefore an out-of-district placement was not warranted (P-49). That same day Parents’ attorney wrote to Dr. Sack notifying HPS that Parents would be placing Mary at Carroll School for the 2006-2007 school year and would be seeking reimbursement for such placement from HPS (P-49).

On August 6, 2006 Parents requested a Hearing before the BSEA and an initial hearing date was scheduled for September 14, 2006. Both parties requested postponements. A conference call took place on September 6, 2006 and a pre-hearing conference was held on September 18, 2006. Several conference calls followed with hearing dates set for November 7-8-9, 2006. The hearing took place on these dates plus the additional date of December 12, 2006.

ISSUES IN DISPUTE

1. Does HPS’ proposed final IEP (P-44; S-2) for Mary appropriately address her special education needs so as to provide her with a free and appropriate public education (FAPE) in the least restrictive educational environment?

2. If not, does placement at Carroll School appropriately address Mary’s special education needs so as to provide her with FAPE in the least restrictive educational environment?

3. Did HPS commit procedural violations which denied Mary FAPE or denied Parents meaningful participation in the formulation of the IEP?

STATEMENT OF POSITIONS

Parents’ position is that HPS’ currently proposed IEP for Mary is inappropriate to address her special education needs so as to provide her with FAPE in the least restrictive educational environment. Parents contend that Mary requires an out-of-district placement at Carroll School in order to received FAFE in the least restrictive educational environment. Parents also contend that HPS committed procedural violations which denied Mary FAPE and denied Parents meaningful participation in the formulation of the current IEP. Parents request that HPS reimburse them for tuition and transportation costs already expended and prospectively pay for Mary’s Carroll School placement and provide transportation to/from Carroll School.

HPS’ position is that its currently proposed IEP for Mary is appropriate to address her special education needs so as to provide her with FAPE in the least restrictive educational environment. HPS contends that Mary does not require the restrictiveness of an out-of-district placement with all special education students in order to provide her with FAPE in the least restrictive educational environment. HPS contends that development of Mary’s IEP has been consistent with the Individuals With Disabilities Education Act (IDEA) and that Parents were active participants in Mary’s educational planning.

PROFILE OF STUDENT

Mary has been evaluated twice through HPS and twice privately via CH and Educational Directions. As part of the HPS psychological evaluation done in May-June 2003, the end of Mary’s kindergarten year, Mary was administered the Wechsler Pre-School and Primary Scale of Intelligence-3 rd edition (WPPS1-III). Her verbal IQ was 112 (High Average); Performance IQ 105 (Average); and Full Scale IQ 111 (High Average). On the Woodcock- Johnson Psycho-educational Battery-3 rd edition (WJ-III) Mary’s short term memory fell within the very low average range. Based upon the Connors Teachers’ Rating Scale-Revised (Connors-R) Mary’s behavior was rated as being at a significant problem level in areas measuring ability to meet the teacher’s expectations for academic work, anxiety-shyness, social problems, inattention, emotional lability, and restless/impulsive/overactive behaviors, with such behaviors being seen frequently in children who have Attention Deficit/Hyperactivity Disorder (ADHD). (See exhibits P-7; S-24.) On the May 2003 educational evaluation (P-6; S-25) Mary, at 6 years 5 months of age, was administered the Woodcock-Johnson Tests of Achiement-3 rd edition (WJTA-III). Mary’s academic knowledge was within the average range with basic reading skills at a 6 year 2 month level and mathematics at a 5 year 9 month level. On the May 2003 speech-language evaluation (P-4; S-28), based upon the Clinical Evaluation of Language Fundamentals-3 rd edition (CELF-III), the Peabody Picture Vocabulary Test-3 rd edition (PPVT-III) and Expressive Vocabulary Test-Revised (EVT-R), Mary’s receptive and expressive language skills were at age expected levels. On the May 2003 occupational therapy evaluation (P-5; S-27) Mary demonstrated weakness in the area of visual-motor integration with age appropriate fine motor skills. On the June 2003 physical therapy evaluation (P-8; S-26) Mary achieved age equivalent scores.

Mary was referred for an evaluation by HPS in March 2004 of her 1 st grade year which was consented to by Parents (P-13; S-21). As part of this evaluation, a psychological evaluation was administered in April 2004 (P-15; S-22). On the Children’s Memory Scale Mary achieved many average scores, but a low score in attention/concentration and very low score in learning. On the Connors-R, Mary’s classroom behavior was compromised by anxiety-shyness, emotional labiality and inattentive/restless/impulsive/overactive behavior. On the March 2004 education evaluation (P-16; S-19) Mary, at a chronological age of 7 years 3 months and a 1.7 grade level, achieved the following age equivalent (AE) and grade equivalent (GE) scores on the WJTA-III:

Tested Area – AE Score – GE Score

Oral Language 8-10 2.5

Oral Expressive 7-10 2.3

Listening Comprehension 8-2 2.6

Broad Reading 6-3 K.9

Broad Math 6-9 1.5

Broad Written Language 6-11 1.5

Basic Reading Skills 7-0 1.6

Reading Comprehension 6-4 1.1

Math Calculation Skills 6-6 1.2

Math Reasoning 7-0 1.7

Written Expression 6-9 1.6

The results of the April 2004 speech-language evaluation (P-17; S-18) which included the CELF-4, PPVT-III, EVT-R, Lindamood Auditory Conceptualization Test (LAC) and the Golden-Fristoe-Woodcock Test of Auditory Discrimination were summarized as follows by the evaluator:

Supplemental testing indicated Mary has a communication impairment, characterized by word-retrieval difficulty, slower than normal speed of word recall (although not at a disability level) and no ability to manipulate speech sounds in nonsense words. Weaknesses in these language areas can interfere with the development of reading and spelling skills. Mary demonstrated ability to discriminate between similar speech sounds, recognize the order of sounds in a series and recognize the number of sounds in a syllable. She could not manipulate sounds within syllables (an important skill in reading and spelling). Although her speed of word recall was slower than normal, it was not at a disability level. Her expressive vocabulary skills were significantly weaker than receptive vocabulary skills, indicating difficulty in accurately retrieving the name of objects. Weakness in this area can interfere with effective decoding of words, reading fluency, reading comprehension, oral expression and written language.

On March 16, 2005 Mary was privately evaluated at CH (P-29; S-16). On the Wechsler Abbreviated Scale of Intelligence (WASI) Mary achieved a Verbal IQ of 94, a Performance IQ of 93 and a Full Scale IQ of 93, placing her within the average range of intellectual functioning. On the Wechsler Individual Achievement Test-2 nd Edition (WIAT-II) with a subtest mean of 100, Mary achieved the following sublest mean and percentile (%) scores:

Subject Area – Subtest – Mean %

Word Reading 83 13

Pseudo ward Decoding 80 9

Spelling 87 19

Numerical Operations 91 27

On the Gray Oral Reading Test-4 th edition (GORT-4) with a standard score mean of 10 Mary achieved the following standard scores (SS) and percentile (%) scores as follows:

Reading Area SS %

Reading Rate 7 16

Reading Accuracy 5 5

Reading Fluency 6 9

Reading Comprehension 5 5

With an overall composite mean score of 100, Mary achieved an overall reading quotient of 73 placing her at the 4 th percentile on the GORT-4.

CH found that Mary’s cognitive functioning fell within the average range with the exception of a significant weakness in auditory attention and working memory. Academically, Mary’s reading skills revealed persistent and significant weaknesses in single word reading decoding, reading fluency and comprehension. CH found that, given the significant discrepancy between her cognitive ability and reading achievement, Mary met the Diagnostic and Statistical Manual-4 th Edition: Text Revision (DMS-IV:TR) criteria for a Reading Disorder. In regard to attentional functioning, CH found that Mary met the DSM-IV: TR criteria for Attention Deficit Hyperactivity Disorder, Combined Type (ADHD). Based upon weak sound/symbol correspondence in spelling skills and some inconsistency in math calculation abilities, CH found that Mary would benefit from support in these areas as well. CH also found that Mary displayed academic and social difficulties secondary to her reading disability and ADHD; that she was frustrated by her learning and social challenges; and that she needed support to overcome her learning difficulties and preserve her self-esteem.

On January 31 and February 1, 2006 Mary received a private neuro/psychoeducational evaluation from Educational Directions (P-32; S-15). According to the results of the WJ-III Mary is a girl of average ability with all cluster scores except one falling within the high average range. On the Wide Range Assessment of Memory and Learning Test-2 nd Edition (WRAML-2) Mary’s overall memory and learning fell within the low average range. On the Developmental Test of Visual Motor Integration (VMI) Mary’s overall motor skills fell within the low average range. On the Comprehension Test of Phonological Processing (CTOPP) Mary’s overall performance fell within the low average range. On the Test of Word Reading Efficiency (TOWRE), Mary, then at a 3.5 grade level, achieved a sight word grade equivalent score of 2.2 and a phonemic decoding grade equivalent score of 1.6. On the GORT-4 Mary achieved the following standard scores (SS) percentile (%) scores and grade equivalent (GE) scores:

Reading Area SS % GE

Reading Rate 7 16 2.4

Reading Accuracy 5 5 1.4

Reading Passage 5 5 2.0

Reading Comprehension 7 16 2.0

Mary achieved an overall reading quotient of 76 placing her at the 5 th percentile on the GORT-4. On the Connors-R filled out by Mary’s parents, teacher and tutor, scores indicated the high likelihood of Attention Deficit Disorder. On the Behavior Assessment Scale for Children (BASC) filled out by Mary’s parents, teacher and tutor, concerns were raised over issues of attention, distractibility, restlessness, anxiety, and frustration. On the Behavior Rating Inventory of Executive Functioning (BRIEF) completed by Mary’s parents, teacher and tutor, responses indicated difficulties with sustaining attention; resolving more complex problems; and that Mary exhibits a tendency to become overwhelmed and can exhibit a loss of emotional control.

Educational Directions confirmed Mary’s DSM-IV diagnoses of ADHD, Combined Type and a Reading Disorder (language based learning disability/dyslexia). Educational Directions also found a Disorder of Written Expression and a Math Disorder pursuant to DSM-IV.

[Refer to all of the above-listed exhibits for complete evaluative results.]

PARENTS’ PROPOSED PROGRAM

Parents propose that Mary be educated at Carroll School (Carroll), a Massachusetts Department of Education (MDOE) approved special education private day school located in Lincoln, MA.

All Carroll teachers are trained in the Orton-Gillinghan (O-G) methodology for teaching reading. At Carroll Mary is in a 4 th grade classroom of seven students-four girls and three boys. Mary’s primary teacher is Ms. Triosi who has a masters degree in special education, is certified in both elementary education and special education and has received O/G training at Carroll. Ms. Triosi is Mary’s teacher for reading/language, mathematics, social studies and directed studies. Mary also receives an 1:1 O/G reading tutorial daily from Ms. Baatz who is certified in elementary education and received O/G training from Carroll. One period per week a speech-language pathologist comes into the class and does phonological awareness activities. Mary also received science, studio arts and physical education twice weekly from different teachers.

Mary attends Carroll from 8:20 a.m. – 3:15 p.m. from Monday through Thursday and from 8:20 a.m. – 12:15 p.m. on Fridays. On Friday afternoons, Carroll teachers receive ongoing training.
(Refer to testimony, Triosi; P-51, 52, 53, 58, 59.)

SCHOOL’S PROPOSED PROGRAM

HPS proposes that Mary be educated at HPS’ Hopkins School² in a 4 th grade integrated program. Under her proposed IEP (P-44; S-2) Mary would receive the following educational services outside of her classroom: 1) Reading/spelling/language instruction in the Learning Center from the Learning Specialist 5 days per week for 40 minutes each day in small groups of 3 students, with the teacher utilizing primarily the Wilson methodology for teaching reading; 2) Speech-language therapy from the speech-language pathologist twice per week for 30 minutes each time in small groups of 2-3 students; and 3) 1:1 counseling once weekly from the school psychologist. Within the integrated classroom Mary would receive English/language arts 5 days per week for 30 minutes each day in whole group and small groupings of 3-4 students; math 4 days per week for 30 minutes each time in a small, flexible groupings of 3-4 students; and social studies and science, each 3 days per week for 30 minutes each time in small groups of 3-4 students. Instruction within the class would be by the classroom teacher; special education teacher/Learning Specialist; or classroom assistant. Mary would also receive physical education, health, art, music, chorus, computer lab and library each once per week with the classroom assistant assisting the various specialists in these classes. The school day runs from 9:15 a.m. to 2:49 p.m., Monday through Friday. Mary would also receive extended school year (summer) services in reading/language and mathematics. Reading/language services would be three times per week for 60 minutes each session until August 3. Mathematics services would be twice per week for 60 minutes each session until August 3.

There are 19 students within this 4 th grade integrated classroom. Four of the children are special education students on IEPs. The selected regular education students have average to above average intelligence, have been successful academically and socially, have personalities that are supportive of others, are respectful of different learning styles, and learn well in cooperative learning environments. Students are instructed on grade level curriculum with appropriate modifications/adaptations pursuant to IEPs. There is some whole group instruction but the majority of the work is done in small, flexible and/or cooperative groupings, sometimes more homogeneously based for specific instruction and sometimes heterogeneously based so that students bring different skills and abilities to the activities. The integrated class model is consciously grounded in language based best practices of teaching for the benefit of all of the students, but particularly students with language based learning disorders. Teachers review prior knowledge at the beginning of a lesson, give clear directions and set clear expectations, and utilize multi-model and multi-sensory teaching approaches. Important terms are reviewed and reinforced during the lesson. Teachers structure active learning opportunities which engage all students, but particularly those with attention deficits, in the learning process.

The 4 th grade integrated classroom has a full time classroom teacher and a full time teaching assistant. Additionally the Learning Specialist/special education teacher is assigned to this classroom for 50% of the time which includes both in-class instruction and pull out services in the Learning Center. Also the speech-language pathologist does activities within the classroom once per week. Ms. Esdale is the 4 th grade integrated classroom teacher. She has a masters degree in special education and is certified in both elementary education and special education. Ms. Alexander, the Learning Specialist, has a masters degree in education; is certified in the Wilson Reading Program; and is trained in a number of other reading and educational methodologies. Ms. Alexander has been a mentor teacher since 2000 and has 35 years of continuous teaching experience in special education in self-contained, integrated and inclusion programs. Ms. Savage, the speech-language pathologist, has a masters degree in communication disorders and is a licensed/certified speech-language pathologist. Ms. Perez, the teaching assistant, has a bachelors degree in education and has taught and tutored in other states.
(Refer to testimony, Coutinho; Sack; Esdale; Alexander; Starr; P-44; 60,62, 63,64; S-2, 37, 38.)

FINDINGS AND CONCLUSIONS

It is undisputed by the parties and confirmed by the evidence presented that Mary is a student with special education needs as defined under state and federal statutes and regulations. The parties are also in substantial agreement regarding the nature and manifestations of Mary’s special education needs in school. The fundamental issues in dispute are listed under ISSUES IN DISPUTE , above.

Based upon 4 full days of oral testimony, the extensive documentation introduced into evidence, and a review of the applicable law, I conclude that:

I. HPS’ proposed 6/06-3/07 IEP for Mary at Hopkins Schools is appropriate to address Mary’s special education needs so as to provide her with FAPE in the least restrictive education environment;

II. Parents have failed to prove the necessity for an out-of-district special education placement to address Mary’s special education needs so as to provide her with FAPE in the least restrictive educational environment at this time.

III. No procedural violations occurred which denied Mary FAPE or denied Parents meaningful participation in the formulation of the IEP.

My analysis follows

I. and II.

The United State Supreme Court in Schaffer v. Weast 12 S.Ct. 528; 44 IDELR 150 (2005) has held that the burden of proof in due process proceedings under the IDEA is on the party seeking to change the proposed IEP and placement. Therefore, in this case, Parents bear the burden of proving that HPS’ proposed IEP is inappropriate to address Mary’s special education needs so as to provide her with FAPE in the least restrictive educational environment. Based upon the evidence presented, Parents have not met that burden.

Based upon the various evaluations administered to Mary in 2003, 2004, 2005 and 2006 she is a girl of average intelligence with documented language based learning disabilities in reading/written language, and some weaknesses/disabilities in spelling and math; ADHD; and some social/emotional/behavioral difficulties secondary to her language based learning disabilities and ADHD. (See PROFILE OF STUDENT , above.) It is noted that Mary is not on medication for her ADHD. Parents tried Mary on several brief courses of medication, shared this information with the school nurse, but did not inform Mary’s teachers/HPS educational personnel and did not keep Mary on any medication. (See testimony, Mother.)

I find that HPS’ proposed 6/06-3/07 IEP (P-44; S-2) is appropriate to address Mary’s special education needs so as to provide her with FAPE in the least restrictive educational environment for a number of reasons. First, HPS has consistently evaluated and monitored Mary’s educational situation since kindergarten and adjusted its position/programing as Mary’s needs changed. HPS has gone from a finding of no special needs in kindergarten, to an IEP for 1 st -2 nd grade, an IEP Amendment for increased services in early 2 nd grade, a new IEP with increased services in 2 nd -3 rd grade (all of which were accepted by Parents) and finally a move from an inclusion classroom to a more intensive, integrated classroom for Mary’s 4 th grade year. (See STATEMENT/HISTORY OF THE CASE , above; SCHOOL’S PROPOSED PROGRAM , above.)

Second, I find that HPS’ proposed IEP/placement provides Mary with a high quality educational program appropriate to her needs. The IEP would address Mary’s reading/language disabilities primarily in small group (3:1) special education settings with the Learning Specialist, as well as within the integrated classroom by both the Learning Specialist and/or the classroom teacher (mostly via small group instruction of

3-4:1). Mary’s language problems, which impact upon her reading would be addressed by the speech-language pathologist twice per week outside of the classroom (2-3:1 student:teacher ratio) as well as through in-class activities with the speech-language pathologist once per week. Mary’s math difficulties would be addressed within the classroom in small groups of 3-4:1 by the Learning Specialist or classroom teacher. All other academics are done primarily in small groupings of 3-4:1. Mary’s socialization, anxieties, frustrations and self-esteem issues would be addressed by the school psychologist in a 1:1 counseling session weekly, as well as via some integrated classroom activities. With the classroom teacher and the teaching assistant, the overall student: teacher ratio would be, at most 10:1. When the Learning Specialist is in the integrated classroom, the student:teacher ratio would be less then 7:1 (See SCHOOL’S PROPOSED PROGRAM , above; testimony, Esdale; Alexander; Starr; P-44; S-2.) I conclude that HPS’ proposed IEP and placement for Mary in an integrated classroom at Hopkins School, in tandem with specialized pull-out services, provides a comprehensive and flexible special education program which would provide Mary with the intensive, individualized special education and related services which she requires within a structured, predictable education environment. Mary would receive small group special education instruction in special education settings as well as small group instruction in most of her academic areas with special education certified, experienced teachers within the integrated regular education classroom, along with regular education grade level peers. Additionally, Mary would be mainstreamed for all non-academic areas, further providing modeling, integration and normalization with regular education grade level peers. I conclude that this IEP/placement provides Mary FAPE and does so in the least restrictive educational environment consistent with state and federal special education law.

Third, none of Parents’ private evaluations have recommended private, out-of-district placement as being educationally necessary or required to address Mary’s special education needs. The CH evaluation’s (P-29; S-16) first recommendation is medical:

Medical:

1. We would recommend that [Mary’s] attention and activity level be monitored systematically in a coordinated fashion among her parents, teachers and other caregivers. [Mary] may benefit from stimulant medication for her symptoms with close monitoring and adjustment for appropriate dosage form, strength and interval. We would recommend that her providers communicate regarding her response to any reinitiation of medication to better assess her response. We would be happy to provide consultation regarding this option over time.

I note that Parents have never allowed this to be done.

In terms of educational programming, the CH evaluation states that many of its recommendations were intended to be done in a resource room setting with a learning disability specialist on a 1:1 type basis. CH recommended multisensory, structured reading/language instruction based upon O/G principles such as Wilson Reading or Project Read. I find that many of the CH recommendations have been incorporated into Mary’s proposed IEP and/or are utilized by Ms. Esdale and Ms. Alexander in their best language practices instruction. (See P-29; S-16 for complete CH recommendations; see also P-44; S-2; testimony, Esdale; Alexander; Starr.)

The Educational Directions evaluation (P-32; S-15) recommended, in pertinent part:

[Mary] would do best in a language-based classroom where there is much built-in integration. Language strategy development should permeate instruction in all subject areas. [Mary] would do best in a highly structured small classroom where the student teacher ratio is small, and she can receive assistance by either a speech and language pathologist or a learning disability specialist.

Education Directions then delineated a number of language based learning strategies, many of which are utilized in the HPS IEP proposed for Mary. Most specifically, Education Directions recommended in the area of reading:

1. Due to significant weaknesses in decoding and phonics, Mary needs to receive support in the areas of phonological processing and retrieval. This should take place on a daily basis. Given her problems with phonological processing and retrieval, the use of a highly structured, systematic, linguistically controlled, rule-based reading program is needed. Such programs as the Wilson Reading or Orton-Gillingham should be implemented. These programs systematically teach the rules and patterns of the English language and sound-symbol associations. Ample repetition, review, and redundancy, which students with language-based learning disability require, are built into such programs. Reading and spelling skills should be taught simultaneously.

Again, I find that many of the Educational Directions recommendations have been incorporated into Mary’s IEP and/or are utilized in HPS’ special education and integrated classroom instruction for Mary by Ms. Esdale and Ms. Alexander. (See P-32; S-15 for complete Education Directions recommendations; see also, testimony, Esdale; Alexander; Starr; SCHOOL’S PROPOSED PROGRAM , above.)

Fourth, Dr. Antalek of Educational Directions observed Mary’s proposed 4 th grade integrated classroom and the Learning Center/reading tutorial at HPS’ Hopkins School on October 24, 2006 (P-54; S-3A). In her concluding section of her observation report, under General Impressions, Dr. Antalek wrote:

The classroom structure included many appropriate language-based strategies, particularly review and repetition through restating information as well as through active questioning to test comprehension. The classroom atmosphere was generally user friendly, with appropriate desk placements facing the front of the class, the use of colorful but not overwhelming or confusing graphics, readily available materials, including computers, and adjoining quiet space for small groups. A great deal of praise and reinforcement were noted. The students appeared invested for the most part in the activities and were generally attentive. It was also appropriate that students could keep a drink at hand, and not one child appeared to use this as a distraction.

The teaching team was led by a strong and dynamic teacher who appeared able to maintain control in a variety of activities that could have devolved into total chaos in less capable hands. The aide did not appear to contribute to the active lesson work, although she may have had a minor role in maintaining discipline simply by her presence and circulating about the room. The learning specialist worked well with the classroom teacher, and reinforced the subjects through additional review and repetition as well as through active questioning. Unfortunately, the speech and language pathologist’s role was unclear, but this was due to the amount of time her presence was observed, which was quite short; therefore, it would be inappropriate to comment further on her role…..

When the learning specialist was available to the class, this appeared to be very helpful. However, she splits her time between the two classrooms as well as with small group tutorials. Thus, it was difficult to determine how much of the efficacy of the teaching methods used were due to her presence, or if in fact her presence only enhances the lesson, as it is acknowledged that the classroom teacher engages in many effective teaching practices……

In summary, the best language-based practices incorporated in the integrated class at Hopkins School is a good program overall. While not appropriate for all children due to the fast pace, intensive language, short pull out sessions, and the highly “flexible” cooperative learning activities, and as such potentially problematic for children with significant language-based, attention and /or emotional issues, it does appear to appeal to most capable children and/or those with mild learning issues (including mild dyslexia). A strong teaching team is essential to the continued success of such a program. Ms. Esdale and Ms. Alexander, in particular, exude confidence and caring in their approach to learning, and appeared to use materials in a creative way. Their praise of the children’s efforts by reinforcing what they did correctly along with gentle corrections of errors was particularly admirable…..
(See P-54; S-15A for complete observation report.)

I note that Dr. Antalek’s observation of HPS’s proposed program for Mary was on October 24, 2006 which was: 1) approximately 2 months after Mary had already been placed at Carroll; and 2) approximately 2 weeks prior to the commencement of this hearing at which Dr. Antoablek testified. Given that her observation of HPS’ proposed program for Mary was plainly for the purpose of this hearing and her testimony at this hearing, I find her overall observation report to be a rather mild attack on HPS’s proposed program for Mary. Under these circumstances, I conclude that the quality of the HPS program is clearly reflected in the observational report of Parents’ own expert witness. (See also testimony, Antalek.)

Fifth, it is acknowledged by both parties that Mary is functioning below grade level. (See PROFILE OF STUDENT , above.) In response to the Hearing Officer’s questions, Dr. Antalek testified that, based upon testing done by Educational Directions (when Mary was at approximately a 3.5 grade level), she would place Mary’s overall reading level at least 1 year below grade level; her reading accuracy for new words was about 1 ½ years below grade level; her sight word recognition/decoding was 1-1 ½ years below grade level; and her reading comprehension was at a grade 2 ½ + level or about 1 year below grade level. (Refer to testimony, Antalek.) Dr. Antalek’s testimony is consistent with the testimony of Mary’s 3 rd grade special education teacher who placed Mary’s overall reading level at the end of the 2 nd grade level (when Mary was at the end of her 3 rd grade year) (testimony Koziara). While Mary is functioning approximately 1+ year(s) below grade level, I find that this gap can be largely attributable to her constellation of language based learning disabilities themselves, as well as her documented, long standing ADHD. (See PROFILE OF STUDENT , above.) Indeed, per parental choice, Mary’s ADHD is not being addressed medically and in a coordinated fashion between Parents and School as recommended by Parents’ own private CH evaluation. (See Medical Recommendation from CH evaluation quoted above.) I note Dr. Antalek’s testimony that Mary has a significant attentional deficit and that her ADHD exacerbates her learning difficulties. I also note Ms. Koziara’s testimony that Mary’s attentional issues impact her rate of progress. (Refer also to testimony, Shiffman; Starr.)

Sixth I find that Mary has made steady, albeit slow progress under HPS IEPs that were less intensive than the currently proposed IEP. Unfortunately, many of the standardized tests which have been administered to Mary over her four evaluations cannot be compared precisely because different testing instruments were utilized. However, on tests that were administered more than once, progress is evident. For example on the WJTA-III administered to Mary by HPS in May 2003 and then again in April 2004, Mary’s basic reading progressed from a 6 year 2 months age equivalent to a 7 year 0 month age equivalent, and her math reasoning skills progressed from a 5 year 9 month age equivalent to a 7 year 0 month age equivalent. On the GORT-4 administered by CH in March 2005 and then by Educational Directions in January 2006, Mary’s reading rate and reading accuracy maintained themselves at the same standard score and percentile score while her reading comprehension went from a scaled score of 5 to 7 and she progressed from the 5 th to the 16 th percentile. (See PROFILE OF STUDENT , above.) On the Group Reading Assessment and Diagnostic Evaluation (GRADE) which is not an individually administered assessment but a group assessment administered within HPS, Mary achieved the following grade equivalent scores (GE) at the beginning and near the end of her 3 rd grade year (P-46; S-42):

Date Administered – Area Tested – GE Score

9/28/05 Vocabulary Composite 1.4

Comprehension Composite 1.0

Total Test 1.3

4/26/06 Vocabulary Composite 1.7

Comprehension Composite 1.9

Total Test 1.9

I also note Mary’s 3 rd grade progress reports documenting progress from a mid 2 nd grade to an end of 2 nd grade level (testimony Koziara; P-31, 37, 45; S-7).

Given Mary’s progress in less intensive inclusion classrooms with fewer special education services, I find it highly probable that Mary would have made more significant progress with the more extensive special education services/more intensive integrated classroom program offered pursuant to HPS’ proposed IEP. (See SCHOOL’S PROPOSED PROGRAM , above.)

Finally, Parents raise the issue of Mary’s frustration, anxiety and social challenges secondary to her learning disabilities. Through its proposed IEP, HPS has offered 1:1 counseling with the school psychologist to address these issues. While not on her Carroll schedule, Ms. Friosi testified that Mary participates in activities with the Carroll guidance counselor to address these issues at Carroll. I note that many of the same behaviors observed during Mary’s 3 rd grade year at HPS (upset when not winning, competitiveness, wanting her own way, frustration, teariness) have also been observed at Carroll. Further, both HPS and Carroll have dealt with such situations in much the same way when they have occurred in the classroom (stepping out into the hall for a chat with the teacher, getting a drink of water, going to the ladies room to wash her face) and that Mary has been easily re-directed. (Refer to testimony, George; Koziara; Triosi.) I also note that, overall, Mary was outgoing to peers; interacted well with peers at HPS; was an active participant in class; and that other children also initiated social interaction with Mary and chose to work with her during her 3 rd grade at HPS (testimony, George, Koziara).

III.

Parents’ procedural violations argument focuses on two team meetings: 1) The November 16, 2005 team meeting that considered the CH evaluation; and 2) the June 5, 2006 team meeting which resulted in the final IEP proposal for Mary that is the subject of this BSEA hearing.

Regarding the November 2005 team meeting, Parents allege several team members left before the conclusion of the team meeting and that HPS did not amend Mary’s IEP to reflect the CH ADHD diagnosis at that time, waiting until the March, April and June 2006 IEPs to formally incorporate the ADHD diagnosis into Mary’s IEP. While it would have been better practice to revise Mary’s IEP at that time, I do not find that this denied Mary FAPE or denied Parents meaningful participation in the formulation of the IEP. HPS was already aware of Mary’s ADHD characteristics based upon its own two prior evaluations ( PROFILE OF STUDENT , above), and there were strategies in her IEP that addressed her attentional problems along with her learning disabilities (P-26; S-9). Further, the March 2005 CH evaluation had been available to Parents since June 2005, yet they chose not to make it available to HPS until November 2005 when it was already 7 months old.³

Most significantly, however, Mary was then functioning under an existing and accepted IEP. Parents did not revoke their acceptance of the IEP or reject the IEP. That IEP (P-26; S-9) expired as an accepted IEP. Both the courts and the BSEA have repeatedly held that Hearing Officers are precluded from revisiting/re-opening accepted IEPs that have expired where parents have participated in the development of the IEP; parents have received notice of their options for rejection of an IEP and proceeding to a due process hearing; parents have chosen to accept the IEP; and parents have never rejected the IEP during its term. See Chris A. v. Stow Public Schools 16 EHLR 1304 (MA 1990), affirmed on appeal, Amann v. Stow School System 982 F.2d 644 at 651 (1992). See also Burlington v. Department of Education 736 F. 2d 773 at 796 (1984); Burlington v. Department of Education 471 U.S. 359 at 373 (1985); Amherst-Pelham Regional School District v. Department of Education 376 Mass. 480 at 483 (1978). Manchester School District v. Christopher B. 19 IDELR 143 at 147 (DNH); In re: Marblehead Public Schools 7 MSER 176 at 180 (SEA Mass 2002). In re: Arlington Public Schools 8 MSER 133 at 135 (SEA Mass 2002); In re: Fairhaven Public Schools 12 MSER 95 (SEA Mass 2006). Therefore, any claims against HPS for the accepted and expired 2005-2006 IEP will not be entertained and are DISMISSED WITH PREJUDICE .

Regarding the June 5, 2006 team meeting, Parents allege that several team members left prior to the conclusion of the team meeting; the time alloted for the team meeting was too short; and that Parents were not fully aware of the purpose of the team meeting. (Refer to testimony, Parents.) I do not find Parents’ allegations to have merit. This was the 3 rd team meeting in 4 months regarding Mary’s 2006-2007 IEP (See STATEMENT/HISTORY OF THE CASE , above.) This meeting was called specifically as a result of Parents’ April 6, 2006 letter to Dr. Sack (P-36) and April meeting with Dr. Sack (testimony, Sack; Mother). Dr. Sack arranged for Parents to submit their written list of concerns (P-39; S-3A) and arranged for the June 5, 2006 team meeting to consider these concerns. At this meeting, which went on for about 1 ¼ hours, HPS personnel went over/discussed Parents’ concerns line by line (testimony Coutinho; Koziara; Sack); presented Parents with a written, color-coded response to Parents’ concerns (P-43; S-3B); and Dr. Sack took notes on a large flip chart (S-3C) to provide further visual reinforcement and so that Parents could fully concentrate and not have to take notes. (See testimony, Coutinho; Koziara; Sack; P-39, 43; S-3A, 3B, 3C.) I find no basis to conclude that HPS’ actions at this June 5, 2006 team meeting denied Mary FAPE or denied Parents meaningful participation in the formulation of Mary’s IEP.

ORDER

I. HPS’ proposed 6/06 – 3/07 IEP for Mary appropriately addresses her special education needs so as to provide her with FAPE in the least restrictive educational environment.

II. No procedural violations were committed by HPS which denied Mary FAPE or denied Parents meaningful participation in the formulation of the IEP.

By the Hearing Officer

______________________

Raymond Oliver

Dated: March 2, 2007

1

Mary is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in publicly available documents.

2

In Hopkinton students change schools every two years in elementary school. Mary attended kindergarten and grade 1 at Center School and grades 2 and 3 at Elmwood School. If Mary were attending HPS, grades 4 and 5 would be at Hopkins School.

3

I note that Parents themselves have not implemented the medical evaluation recommendation made by CH regarding treatment for Mary’s ADHD.