Monson Public Schools v. Student – BSEA # 10-6892

COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

SPECIAL EDUCATION APPEALS

Monson Public Schools v. Student

BSEA #10-6892

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 under said statutes.

A hearing was held on November 15, November 16, and November 23, 2010 at the Office of Catuogno Court Reporting before Catherine M. Putney-Yaceshyn, Hearing Officer.

PROCEDURAL HISTORY

Monson Public Schools requested a hearing on April 28, 2010 and the hearing was scheduled to proceed on May 18, 2010. Monson’s unopposed request to postpone the hearing and schedule a pre-hearing conference was allowed. There was a pre-hearing conference on May 26, 2010. The hearing was rescheduled to proceed in June 2010. On June 18, the Parties made a joint request to take the matter “off calendar” until September 2010. The matter was taken “off calendar” until September 21, 2010. On September 23, the Parents requested that the matter be placed back on the active calendar and that hearing dates be scheduled. There was a conference call on September 29, 2010 and the hearing was rescheduled. The hearing was held on November 15, 16, and 23, 2010 at the office of Catuogno Court Reporting, Worcester, Massachusetts. The Parties requested a postponement to submit written closing briefs and the hearing officer set a deadline of December 15, 2010 for their submission. Both parties submitted closing briefs on December 15, 2010 and the record closed.

Those present for all or part of the Hearing were:

Mother

Father

Andrea MacGovern Parents’ advocate

Robert Kemper Parents’ Independent Evaluator

Charles Vander Linden Attorney for Parents

Jeff Sitnik Math teacher, Monson Public Schools

Gina Brown Science teacher, Monson Public Schools

Carolyn King History teacher, Monson Public Schools

Sharon Rondeau Special education teacher,Monson Public Schools

Teri Skinner Instructional aide, Monson Public Schools

Robert Bardwell Director of Guidance and Student Support Services, Monson Public Schools

Brandon Watroba Monson Public Schools

Danielle Mazur Tutor, Curtis Blake Center

Joanne Hurley Warren Tutor, Curtis Blake Center

Rose Bianchi Administrator of Tutorial Services, Curtis Blake Center

Carrie Doherty Lind English teacher, Monson Public Schools

Tracie Lampson Math teacher, Monson Public Schools

Sarah Shaw Physical education teacher, Monson Public Schools

Nicole Heroux Director of pupil services, Monson Public Schools

Andrew Nolen-Parkhouse Computer Applications teacher, Monson High School

David Drake Headmaster, White Oak School

Kerriann Lord Instructional aide, Monson Public Schools

Fred Dupere Attorney, Monson Public Schools

Brenda Ginisi Court Reporter

Catherine Putney-Yaceshyn Hearing Officer

The official record of this hearing consists of Parents’ exhibits marked P-1 through P-45, Monson’s exhibits marked “Part 1” S-1 through S-25 and “Part 2” S-1 through S-10 and approximately 16 hours of recorded oral testimony.

ISSUES

1. Whether the IEP proposed by the Monson Public Schools for the time period from June 2, 2010 through June 1, 2011 was reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment.

2. If not, whether Student requires an outside placement at the White Oak School to receive a free appropriate public education in the least restrictive environment.

SUMMARY OF THE EVIDENCE

1. The student (hereinafter, “Student”) is a fifteen-year-old ninth grade student who resides in Monson and attends Monson High School. He has been diagnosed with a specific learning disability, double deficit dyslexia. He is a hard working student who is actively involved in his learning. He is well prepared for class, gets involved and participates in class and has a great sense of humor. (P-2, S-2)

2. Mother testified that she has had concerns about Student’s skills since before he started school and that he has struggled throughout school. Student has been on an IEP since the first grade. In seventh grade he was allowed to start bringing his laptop to class and that made him “feel better.” He also began receiving tutoring at that time. Throughout the fall of 2008 Mother felt as if she always had to “babysit” what was happening at school. Student was having meltdowns at home and his accommodations at school were not in place. Mother found eighth grade to be different because Ms. Rondeau, Student’s eighth grade special education teacher, made sure all the accommodations were in place and met with the family before school started to make sure she was familiar with Student. Student felt close to Ms. Rondeau and she could tell if he was feeling stress. (Mother)

3. Cathy Mason, M.Ed., of Tufts Medical Center, conducted an educational evaluation of Student on February 18, 2009, his seventh grade. She noted that her testing indicated that Student’s “reading skills have improved markedly to within roughly only a grade level below average since the previous evaluation, reflecting the intensive, multisensory instruction that he has received. Issues related to efficient decoding of complex words and reading fluency still exist, and will continue to need to be addressed.” Ms. Mason reported that Student’s math skills also seem to have progressed adequately and were grade appropriate. She found that his written language was very weak, “especially for mechanics and complex sentence development under demand conditions.” She noted that his expressive language difficulties were reflected at the written level and would require “intensive, sustained remediation/accommodations.” She also noted concern that Student was experiencing feelings of academic frustration. Ms. Mason recommended that Student continue to receive all of his language arts instruction in the tutorial setting and that her prior recommendations continue to be implemented. She suggested that Student may benefit from therapeutic support with a counselor who is experienced in the specific emotional difficulties encountered by students with language learning disabilities. She made many specific recommendations regarding reading, spelling, and written language. (See P-10) She also made recommendations for study skills and accommodations such as providing additional time to complete work; using previewing and assistive technology such as “Recordings for the Blind and Dyslexic” and Kurzweil 3000 software. She also recommended the use of computerized graphic organizers.

Ms. Mason reported Student’s scores on the Kaufman Test of Educational Achievement-II (KTEA-II) as follows: Reading: standard score 97, Percentile 42, Grade Equivalent 6.9; Math: standard score 98, Percentile 45, Grade Equivalent 7.0; Writing: Standard Score 77, Percentile 6, Grade Equivalent 3.2. (P-10)

4. Gina Brown was Student’s eighth grade inclusion science teacher. Student attained a grade of 94 in her class. She did not see Student having any difficulty in her class and he always participated and made relevant connections to real life situations. She never saw him anxious in class. Student was willing to read aloud in class and she never heard him struggle with rate or fluency. (Brown)

5. Carolyn King was Student’s eighth grade inclusion World History teacher. Student participated in her class daily and she never observed him to be anxious. He received a 97 in her class. Student read aloud in class at least once per week and read a summary of a current event each week. He read as well as his peers and was not intimidated by the size of the class which had twenty-five students. He was one of the best students in her class and did not require special accommodations. She thinks he left the room during testing and went to the academic support room where Kurzweil was available. (King)

6. Jeffrey Sitnik was Student’s eighth grade math teacher. Student was in his class with approximately twenty-five students and an aide. He participated daily. Mr. Sitnik made modifications for Student with input from Ms. Rondeau, Danielle Mazur, the Curtis Blake Tutor, and the aide. Student left the room to take some of his tests and quizzes. He received a B+ for the year. Mr. Sitnik did not think Student required tutorial services in math because he was doing well in class¹ . He found him to be a very good student and recommended that he take Algebra I in one semester rather than taking a lower level Algebra I that would be split into parts I and II. (Sitnik)

7. Sharon Rondeau was Student’s special education teacher during the 2009-2010 school year, Student’s eighth grade. She has been a certified special education teacher for 21 years and has a Master’s degree. She provided academic support services to Student. She helped him prepare for quizzes and tests, helped with history assignments, reviewed math homework, and clarified science homework and concepts among other things. She used Kurzweil (a text reading software) with Student which allowed him to listen to any digital format including his own work read back to him. All teachers’ notes, assignments, etc. were put on Kurzweil for Student’s use. Kurzweil was an effective tool for Student. He could download all materials from his class to his laptop or from any computer in the classroom. As Student became more independent, he did not always choose to use Kurzweil. She stated the he is “a whiz” at the computer. His computer is very organized and he developed a lot of his organizational systems himself. She found that his organizational skills exceeded those of the average 8 th grade student.

8. Student received his English language arts instruction as 1:1 tutorial with a Curtis Blake tutor, Ms. Mazur. Curtis Blake also provided Ms. Rodeau with consultation. At some point, Mother raised a concern about Student struggling with math concepts. Ms. Rondeau asked Ms. Mazur to do some math work with Student once per week in addition to the English work she was already doing with Student. The entire MCAS exam was available to Student on Kurzweil as an MCAS accommodation. He did not receive any other accommodations. Ms. Rondeau believed that using the Curtis Blake special education interventions along with Monson’s curriculum was successful with Student. She never saw Student get teary eyed or seem anxious in the eighth grade, although Mother e-mailed her about instances in which that occurred at home. (Rondeau)

Although Student had received 1:1 direct services for eighth grade English language arts, because of his performance, the Team determined that he could participate in an English language arts class with support during the ninth. Ms. Rondeau explained that Student still requires assistance with his organizational skills, because if something is not in his computer he has difficulty organizing it. He does not like to have hard copies of anything. She kept a binder of hard copies with Student and he continued to require assistance in organizing it. (Rondeau)

9. The most recently proposed IEP followed a June 2, 2010 meeting. It provides for placement at Monson High School with the following services: speech consult between the speech language pathologist and “teacher” 1 x 30 minutes per month; “consult- Team” with the special education and general education teacher 1 x 30 minutes “(PIC)” every 25 school days. In the general education setting the IEP provides for academic support with the special education/general education/staff 5 x 252 minutes per week (3 classes x 84 minutes each.) Services provided in the “C” grid are as follows: “ESY-Sped” with the reading specialist 10 sessions at 1 hour; academic support with the special education teacher/staff 2 x 30 minutes per week; reading with the tutor “minutes per week = 2.5 hours per week”; writing with the tutor “minutes per week = 2.5 hours per week.” In the Additional Information section of the IEP it states that Student will be encouraged to speak to guidance staff regarding his frustrations and anxiety regarding his double deficit dyslexia. There is also a notation that “Additional time has been allotted to Curtis Blake tutor to assist [Student] with math concepts.” (P-2, S-2)

10. Parent rejected the IEP and placement on July 26, 2010. (P-37)

11. Robert Bardwell, the school counselor and Director of Guidance and Student Support Services at Monson High School recalled attending Student’s Team meeting when he was transitioning from eighth grade to the high school. He remembered that Mother was concerned that English language arts not be scheduled during the same semester that Student would be taking World History due to the language demands in each class and Student’s tutoring schedule. Additionally, Parents did not want tutoring to occur after regular school hours, but during the regular school day. (Bardwell)

12. Brandon Watroba is Student’s special education liaison this year. He testified that sometime in the fall he noticed an inconsistency between Student’s IEP grid and the number of minutes of service that he was actually receiving. He e-mailed Mother to inform her and to schedule a meeting. He invited Ms. Doherty to give a report on Student’s progress and the vice-principal was present. Mother was not informed that other people would be at the meeting and was surprised when she arrived. At the time, Student was receiving 252 of the required 300 minutes of tutoring per week and was not receiving the 2 x 30 minutes per week pull-out academic support services he was supposed to receive. Mr. Watroba suggested that because Student’s performance level was high and his comfort level seemed good, it would be counter productive to pull him out for additional time each week. He suggested that the number of minutes in his IEP be reduced. Mother asked for the proposal in writing. In response Mr. Watroba sent her an IEP amendment. (Watroba, Mother)

13. The district proposed an IEP amendment on or about September 23, 2010. The IEP proposed the provision of reading tutoring for 126 minutes per week and writing tutoring for 126 minutes per week for a total of 252 minutes per week. This represented a reduction from 300 minutes per week previously proposed by the district. Additionally, the district proposed eliminating academic support 2 x 30 minutes per week. (P-38) Mother rejected the IEP amendment on October 14, 2010. (P-37, Mother) She sent a letter to Ms. Heroux indicating that they did not agree to reducing the amount of weekly tutoring from 300 minutes to 252 minutes per week and did not agree with removing the academic support services from his schedule. She reiterated their request that the services in the previously proposed IEP continue to be implemented pending a BSEA hearing. (P-39)

14. In response to Mother’s rejection, Brandon Watroba sent Mother an e-mail dated October 20, 2010. It explained that Student’s schedule would be modified resulting in him leaving physical education 24 minutes early on Tuesdays and Thursdays. Thus, he would receive an additional 48 minutes of Curtis Blake tutoring. Additionally, the e-mail stated that Mr. Watroba would pull Student out of his last block class each day for fifteen minutes, resulting in his receiving sixty additional minutes of academic support outside of the general education classroom per week² . Mr. Watroba suggested a meeting to discuss compensatory services to make up for the services that had been missed to date if Mother deemed it appropriate. (P-43) Parents responded to Mr. Watroba’s e-mail on October 25, 2010. They expressed their frustration that Student’s schedule was not originally designed to take into account the services that he was entitled to receive under the IEP. Additionally, Parents stated that Student should not be required to “jettison time in his academic subjects in a somewhat haphazard manner in order to obtain the special education services to which he is entitled. Rather, the entire program should be designed to both give him the tutoring that he needs and full participation in all of his academic subjects.” (P-44)

15. Andrew Nolan Parkhouse is Student’s Multi-media applications teacher. He stated that Student participates in class, listens, does his work, and interacts with other students. Student achieved a grade of 95 in his class last quarter and had earned a 95 average as of the date of the hearing. He stated that he has not had to make any special accommodations for Student for testing and Student does not appear to have difficulties that are different than any other student during his class. They do not use a textbook, rather instruction is done via demonstration and oral presentation. Grades are based upon projects and not written assignments. Mr. Nolan Parkhouse recalled an instance in which he had sent Ms. Mazur a written hand-out before he distributed it to the class and asked her if any of the vocabulary would be problematic for Student. Ms. Mazur e-mailed him back and stated that she saw no issues. (Nolan Parkhouse)

16. Carrie Doherty Lind is Student’s English teacher. She has been teaching at Monson High School for ten years, has a Master’s degree, and is certified for English grades five through nine and grades nine through twelve. She is not certified in special education. She described Student’s class participation as excellent and added that he raised his hand to answer and ask questions and works well with his peers. She stated that Student has been offered accommodations which he has declined such as modified tests and quizzes³ and a modified location during testing. Ms. Lind has not interacted directly with Ms. Mazur. Instead she has provided materials such as vocabulary lists to Ms. Mazur through Mr. Watroba. Ms. Lind sees evidence of Ms. Mazur’s pre-teaching to Student in her classroom. As of the date of the hearing Student’s grade in her class was a 92. She stated that Student has done very well compared to the rest of the class. He has completed all of his homework and does very well on essays. She has not observed him to be anxious at all and has not needed to provide any intervention different than that she provides for all of her students. She has not had to provide any modifications to his testing. (Lind)

Ms. Lind explained that there is a lot of reading required in her class and they do a lot of it in class. Student always participates and his participation exceeds the average student in her class. Ms. Lind does not believe that Student requires instruction in a small group of five or six students as has been recommended by outside evaluators. She does not even believe that he requires an inclusion setting. Aside from being provided with class notes, Student does not accept any accommodations from her. Student finds grammar very challenging and really struggles with some aspects of it. He did very poorly on one particular grammar test, as did much of the class. She provided students with the opportunity to receive extra help and re-take the grammar test, but Student did not do so. She has heard Student read aloud in small groups, but he does not volunteer to read to the whole class. (Lind)

17. Student is in Tracie Lampson’s Algebra I class along with twenty three other students and an aide. The aide was assigned to the class to assist Student because there were not any inclusion Algebra I classes that fit his schedule⁴ . During class, both Ms. Lampson and the aide circulate around the room. They read word problems aloud if Student is “stuck.” All students are required to write note cards with formulas and instructions for solving problems. Students are permitted to use their note cards at all times in the classroom. Student does not require any help other than that which all students receive. Student takes his own notes during class and Ms. Lampson downloads all of the notes that she takes during class on a Smartboard to Student’s flash drive. Ms. Lampson provides a list of all vocabulary to Ms. Mazur, but does not know whether she reviews it with him. She asks Ms. Mazur to review Student’s note cards and concepts with him before quizzes. She has no concerns about Student’s ability to make progress in her class. She does not think that Student’s dyslexia is an issue for his learning in her classroom, he just requires additional time for word problems, as do many students. Student has required additional time to complete an assessment using word problems. He also required ten additional minutes to complete his mid-year examination. He participates in class every day. He offers to answer questions and he asks them. When students are working in small groups he often takes the lead in his own group work. He is never anxious in her classroom and has never asked to leave the room. He takes his quizzes and tests in the classroom. He received an 83 for the first quarter. (Lampson)

18. Joanne Hurley Warren has been a tutor with the Curtis Blake Center at American International College since 2001⁵ . She has provided tutorial services to Student at various times since 2007. During the 2008-2009 school year she worked with Student for an hour each day. She used the Lindamood Bell Phoneme Sequencing program, Megawords, Visualizing and Verbalizing, Story Grammar Marker, and Theme Maker among other interventions. She introduced Student to the Lindamood Vowel Circle and they used the Seeing Stars program. Additionally, she used vocabulary from social studies and science, reviewed his textbooks would preview the material with Student and review the vocabulary words phonetically and define them. She did not provide Student services during the 2009-2010 school year. Currently she works with Student on Tuesdays and Thursdays for 24 minutes each day. She works on English vocabulary. They have read some of Romeo and Juliet and have discussed related homework assignments. She has also helped him review for a math quiz. (Warren)

19. Danielle Mazur has been a tutor with the Curtis Blake Center for three years. She has a bachelor’s degree in elementary education with a concentration in special education and a Master’s degree in special education. She was a special education teacher in Maryland for five years. She began working with Student in the fall of 2009, Student’s eighth grade. She taught him his English language arts class in a 1:1 format for one hour five days per week. She also spent an additional half hour each day working on math with Student several days a week⁶ . She utilized a number of Lindamood Bell programs among others while working with Student. They worked on his fluency by using his history textbook. Lindamood Bell worked very well for Student and he made very effective progress throughout 2009-2010. His reading became much more fluent and he went from writing a paragraph to a five paragraph essay independently. She used Kurzweil with him so that he could have his work read aloud and could edit his own work. She always reminded him to use Kurzweil to review his work when he finished an assignment. She never observed Student in his classrooms.

Ms. Mazur continues to work with Student this year. She works with him Mondays, Wednesdays and Fridays for 1.5 hours each session. Under the current IEP she is working on word identification and word attack as well as reading comprehension and written language. Student is reading at least at the ninth grade level. He is able to read and comprehend Romeo and Juliet and the Odyssey. She has been reading the Tempest with him during the tutorial sessions. His accuracy is currently 97% when decoding words. He is able to make predictions and is able to answer two out of three comprehension questions independently. Student has made good progress since she has been working with him. He scored in the proficient range in his most recent MCAS testing. She has worked extensively with him on grammar. He is able to read fluently at grade level. Ms. Mazur works on spelling, comprehension and pre-writing with Student. Student is able to communicate with her very effectively and he can ask questions. He does not require prompts to complete tasks except when he responds “I don’t know” right away and she prompts him to think about it. Ms. Mazur does not believe that Student continues to require the level of services that he is receiving. Student is fairly independent in his writing at this point and is able to respond when she asks him to write an introductory paragraph or a thesis statement. She does not agree that a “cold read” is still a challenge for Student, but agrees that he reads more slowly from unfamiliar text than from text he has previously reviewed. (Mazur)

20. Rose Bianchi is the Administrator of Tutorial Services at the Curtis Blake Center at American International College. She has evaluated Student over the past three years. Initially, in 2007 she assessed Student and deemed that he had a significant need for intervention. She tested Student yearly on word attack and word mastery portions of the Woodcock Johnson Reading Mastery. (Part II, S-23) Student’s standard scores showed good gains. She was surprised by how much progress he made in word identification. (Part II, S-5) Student’s progress was more rapid than the typical Student in reading. He functions well in the mainstream and can read most texts that come his way. (Bianchi)

In progress notes dated March 8, 2010, Ms. Bianchi reported Student has made measurable progress in all targeted areas of literacy instruction. She wrote that Student had received intensive services and demonstrated solid academic functioning within the classroom. She referenced his Proficient score on the 2009 English MCAS. She opined that Student is “approaching a compensated dyslexic status and experiences appropriate success in the classroom.” (Bianchi, Part II, S-4)

21. Robert Kemper, Ph.D., is the Director of Psycholinguistics, Inc. He has a Ph.D. in speech language pathology with an emphasis in developmental psycholinguistics. He evaluated Student on September 22, 2009 and did an observation of him in school. The testing he conducted was done at his office over the course of approximately five hours with breaks. Student was focused and had good attention and Dr. Kemper believes the results are reliable. All of the tests he administered are standardized and co-normed. Student scored in the above average range in the area of receptive vocabulary. There was a twenty point difference between his receptive and expressive vocabulary which is indicative of a word retrieval difficulty. On the Towre, Dr. Kemper noted that a lack of speed rather than a lack of accuracy caused the low score. Student read fairly accurately. Student scored in the below average range on the TORC-3, which tests his ability to read paragraphs silently and independently. He noted that Student has phonological awareness deficits and slow naming and reading speed. He has a reduced ability to read fluently. He noted that Student has a double deficit dyslexia which indicates difficulties with both phonological awareness and rapid naming. He would place Student in the severe range of dyslexia because of the double deficit. He testified that Student also has a specific language impairment, he has difficulty expressing thoughts and ideas verbally and in the written format. He opined that it would be difficult for Student to access the regular curriculum. He concluded that Student’s reading level falls between the mid-third grade and the fifth grade level. He found that his reading comprehension level is slightly higher with support, at the seventh grade level and independently at the third grade level. He found Student’s reading fluency to be at the fourth grade level. Dr. Kemper testified that he believes Student is reading at the third or fourth grade level. ( Kemper )

Dr. Kemper concluded that the demands of the regular curriculum would be beyond Student’s grasp and recommended that he be placed in a substantially separate language-based program. He stated that substantially separate language- based programs seem to work better for students Student’s age. He also recommended daily tutorial in addition to the substantially separate program. He stated that Student has limited opportunity to learn to function independently given his age. He recommended a student to teacher ratio of 8:1 as that would be important for Student to be able to develop discourse skills. He stated that Student requires the opportunity to put skills into context and reinforce them throughout the curriculum and in content areas. (Kemper)

Dr. Kemper observed Student at Monson High School on September 22, 2010 for approximately three hours. He observed approximately 25 minutes of Student’s skills lab. Student was there working with Ms. Mazur on writing. Student was using his computer and she was prompting him to write something. He then observed Student’s math class which consisted of approximately 24 students a teacher and a paraprofessional. He noted that the math teacher utilized a white board and used some multi-sensory techniques. He noted that the language was at a fairly high level. He then observed Student’s English class with 18 students a teacher and a paraprofessional. He noted that the class was extremely “disruptive”and hard to follow. The lesson was on Greek mythology and the information in the text was difficult in his opinion. Student sat that the front of the room, but was not looking at his text. Dr. Kemper did not think Student could read it. There was a lot of extra talking between peers in the classroom. The vocabulary was at a high level. Student answered a question and used the word “thingy” which demonstrated his retrieval issue. Dr. Kemper noted that the teacher did not provide him with a “phonemic cue.” (Kemper)

Dr. Kemper testified that there needs to be coordination between the tutorial and the subject matter classes. He stated that Student had received very good grades and he would like to know what kinds of supports, modifications and accommodations were used. He queried whether Student could receive the grades he has received if the remedial services were not provided. He finds it hard to believe that Student is such an active participant in class based on the results of his testing. He did not discuss Student’s grades or his classroom performance with any teachers. (Kemper)

22. Mother stated that at the beginning of this school year Student was dependent on Ms. Mazur for math help. She asked Ms. Mazur to focus the entire 300 minutes of tutoring on English language arts. Mother expected that the services provided last year would continue into this year. This year his papers are not being scanned into the computer in English. Student has expressed that he does not feel like the English aide is able to teach him. He is more comfortable with the English teacher, so he chooses to stay in the classroom during tests. He also does not feel like Mr. Watroba is able to teach him. Student was allowed to use Kurzweil for MCAS last year and relied upon it as a means of reading. Mother testified that the week prior to the hearing she asked Student to read a couple of paragraphs from a letter his father had received in the mail. She then asked Student what the letter’s author was asking Father to do. He was not able to tell her. (Mother)

23. Mother has many concerns about Student’s education. She is concerned about what classes he will be pulled out of next semester to accommodate his tutoring because he will be taking three academic subjects. She is concerned about his English language arts performance. Student has never done a research paper at school. Instead of using research for a recent project in English language arts Student wrote a very creative story. Student continues to struggle with grammar and feels like his teacher cannot explain it to him in a way he can understand. He likes Ms. Doherty, but feels she can’t make him understand grammar. Ms. Matthew, his current aide, does not help him and is not actively involved during class. Mother is also concerned because Monson High School is on a double block schedule and after the current semester Student will not have English language arts class for 8 months. She believes that Student needs to be taught strategies to make him more independent. Student continues to have meltdowns at home and recently had one at school the day after one of the hearing days. Student puts a lot of pressure on himself and feels that he is still a few years behind. He does not understand the vowel wheel he learned in his tutorial and has given up because the tutors keep telling him he understands it. Student is able to participate in class because of the previewing that is done in tutorials and his good fund of knowledge. Mother is concerned that his grades do not show effective progress. Student’s long term goal is to be independent and Mother believes that by attending White Oak and receiving specialized services all day long Student could be made independent. (Mother)

24. Father testified that Student struggles to read at home and cannot understand what he reads at home. He has witnessed Student’s meltdowns at home and it is awful to see. Mother tries to help and he pushes his book away and says he is stupid. One day he got off the bus and was very upset and said, “They can’t teach me.” (Father)

FINDINGS AND CONCLUSIONS:

Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA)⁷ and the state special education statute.⁸ As such, he is entitled to a free appropriate public education (FAPE). Neither his status nor his entitlement is in dispute. Under the FAPE standard, the IEP proposed by the school district must offer the student a free appropriate public education that meets state educational standards. This education must be offered in the least restrictive environment appropriate to meet the student’s individual needs⁹ . Federal law also requires that the student be able to fully participate in the general curriculum to the maximum extent possible. 20 USC § 1415(d)(1)(A)(iii); 34 CFR 300.347(a)(2)(I) and (a)(3)(ii); 64 Fed. Reg. No. 48, page 12595, column 1; See also, In Re: Worcester Public Schools, BSEA # 00-1912, 6 MSER 194 (2000).

As stated by the federal courts, the LEA is responsible to offer students meaningful access to an education through an IEP that provides “significant learning” and confers “meaningful benefit” to the student¹⁰ , through “personalized instruction with sufficient support services …”¹¹ . The requirements of the law assure the student access to a public education rather than an education that maximizes the student’s individual potential. Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993); GD v. Westmoreland School District , 930 F.2d 942 (1 st Cir. 1991).

The burden of persuasion in an administrative hearing challenging an IEP is placed upon the party seeking relief. Schaffer v. Weast , 546 U.S. 49, 126 S. Ct. 528, 534, 537 (2005) In this case, Monson is the party seeking relief, namely a finding that its IEP is reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment, and thus has the burden of persuading the hearing officer of its position.

There is conflicting evidence as to Student’s ability to successfully access the curriculum at Monson High School. Monson’s witnesses all testified that Student not only accesses the curriculum, but is an above-average student. Monson believes that Student does not even require the amount of special education services provided by his current IEP. Parents argue that Student’s grades are inflated and do not reflect an ability to independently complete assignments. They assert that Student is still not able to independently comprehend what he reads. Additionally, Parents claim that the services provided to Student are inappropriate because they require that he miss portions of the regular school day in order to receive all of his required special educational services.

There is no dispute that Student’s dyslexia impacts his ability to access the curriculum. As such, his IEP contains many accommodations and services to enable him to do so. However, the credible evidence shows that Student is able to successfully access the curriculum and that he is receiving educational benefit and making progress in the Monson High School. I cannot discount the testimony of the teachers and service providers who have worked with Student each day over the past two school years. Not only do they all agree that Student is making progress in the curriculum, most of the service providers found Student to be performing better than the average non-special education student.

I relied heavily on the testimony of Danielle Mazur. In addition to being a Master’s level special education teacher with several years of previous classroom teaching experience she has spent several hours each week working one on one with Student since the fall of 2009. She currently works with Student approximately four and one half hours per week. She is perhaps in the best position of all of the witnesses to speak to Student’s reading and written language capabilities in the school setting because of the amount of time she spends working with him. Although she has not observed Student in the classroom setting, she regularly takes running records to assess Student’s independent reading ability. She credibly testified about the improvement that she saw in his phonemic awareness and his fluency over the course of her work with him. She noted that Student is currently reading grade level text and that he is able to read it with 95 to 97 percent accuracy. Additionally, she has introduced text that he is not familiar with from class such as The Tempest, and Student has been able to read it well. She explained the way that she works on writing with Student and stated that he is able to organize his thoughts and proceed with his writing. She did not waver during cross examination and was able to explain how she worked with Student and the basis for her opinion of his progress.

I did not find Dr. Kemper’s evaluation results to be particularly helpful or illuminating. First, he was the only evaluator who found that Student’s reading levels were at the third or fourth grade level. Even Cathy Mason, who evaluated Student approximately seven months before Dr. Kemper, found Student to be reading at approximately the sixth grade level during his seventh grade. It does not logically follow that Student’s reading level which had been steadily increasing during the prior academic years would drop by two to three grade levels while he continued to receive services. Additionally, Dr. Kemper never spoke to any of the service providers about Student’s classroom performance or his performance during his tutorials. In response to hearing officer questioning about his finding that Student is reading at the third or fourth grade level, versus the testimony of the service providers that he was performing at a fairly high level in class, Dr. Kemper responded that it would be difficult, if not impossible, for Student to access the reading demands associated with an eighth or ninth grade textbook absent a huge amount of support and modifications. However, the consistent testimony of Student’s teachers was that Student required virtually no accommodations to access the curriculum and that he performed at a high level in relation to the rest of his class. Dr. Kemper never spoke to any of the service providers to determine what could account for the discrepancy between the scores obtained on his testing and Student’s demonstrated performance.

Additionally, Dr. Kemper stated that he finds it hard to believe that Student is such an active participant in class based on the results of his testing. The consistent testimony of all of Student’s teachers over the past two school years was that Student was an active participant in all of his classes. Their testimony to that effect was unchallenged. Dr. Kemper did not speak to any of Student’s service providers about Student’s level of classroom participation.

I did not rely upon the findings of Dr. Kemper’s observation of Student’s classes. Again, he did not speak to any of Student’s service providers to put what he observed into any context. Additionally, he assumed that Student was unable to read his English text based on the fact that Student did not appear to be looking at the text. He made this assumption without asking either Student or the teacher about it.

Monson’s IEP addresses Student’s identified needs. His weaknesses in the language area are addressed by the daily reading and writing tutorials provided by the Curtis Blake tutors. There is special education support in each of Student’s subject area classes. He is provided with Kurzweil software which enables him to listen to any text, including his own work. He is permitted to take assessments in an alternate setting where he can use Kurzweil and is permitted to use extra time to accommodate his processing needs. He is able to use his laptop in class to help with his organizational difficulties. He has time allotted for academic support where he can seek clarification regarding assignments or concepts. (P-2, S-2) There was no credible evidence that Student requires additional services that are not being provided¹² .

Although I find that the IEP proposed for the 2010-2011 school year is reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment, I find that there have been problems with its implementation. Some of these problems, namely, not providing for all of Student’s IEP services on his initial schedule, are solely within the purview of the Monson Public Schools. However, as described below, I find that Parents’ desire for all of Student’s services to be provided only during the regular school day contributed to the implementation difficulty as well.

Mr. Watroba scheduled a meeting with Mother and other staff members when he noticed that Student was not receiving all of the services required by his IEP. (Watroba) Although he proposed and ultimately drafted an amendment to the IEP, he did not convene a Team meeting and Parents did not agree to waive the convening of the Team. 20 USC §1414(d)(3)(D) allows for Parents and the district to agree to waive the convening of the Team for the purposes of making changes to an IEP after the annual IEP meeting for a school year. Parents were not given the opportunity to waive the Team meeting. Instead, Mother was invited to a meeting without any notice that an IEP amendment was to be discussed and without any notice as to who the meeting attendees would be. She was presented with a proposal to reduce Student’s IEP services without any prior notice. Additionally, the district did not have any basis for seeking an amendment to the IEP at that time. There had not been any updated testing that would suggest that Student no longer required the level of services that the Team had agreed he required in June 2010. Instead, it appears that Monson was seeking to reduce the minutes of Student’s services instead of determining how his schedule could be modified to allow for Student to receive all of the services to which he was entitled. Ultimately, Monson modified Student’s schedule in a way that allowed Student to receive all of the minutes of service to which he was entitled while honoring Parents’ request that Student’s services be delivered during the regular school day.

Although Parents expressed their displeasure over the manner in which Student’s schedule was modified in order to accommodate his services, Monson was limited by Parents’ request that all Student’s services be delivered during the regular school day. Although it is not ideal for Student to attend physical education class at different times and with different groups of students, the district’s hands were tied to some extent by Parents’ request. Student suffered no harm as a result of his physical education schedule. Again, it was not ideal for Student to miss minutes each day from his Multi-Media Applications class, however, no harm was alleged as a result of his missing some of each class. Mr. Parkhouse testified that Student does very well in his class and does not require any special accommodations to do well. This did not change after Student began leaving class early each day. Mother has expressed concern about what classes Student will miss in order to receive his IEP services in the current semester. Parents and Monson are urged to consider whether disruptions to Student’s schedule can be avoided by offering some of his tutorial or academic support services after the regular school day. Parents did not testify that Student is not available after the regular school day. Student may benefit more from his academic support services if he is able to receive them in blocks of thirty minutes as contemplated by the IEP, allowing him to focus more in depth on a concept or question.

Because, as Monson acknowledged, there was a time period during which Student was not receiving all of his required IEP services, he is entitled to receive compensatory services for the hours that he missed. Mr. Watroba raised this issue to Parents in an October 20 e-mail and suggested that they meet to discuss the matter. (P-43) Parents wanted to wait until after the hearing to address the issue. (See P-44) The Parties shall meet to determine appropriate compensatory services and are encouraged to consider making up the hours during the summer to avoid having to make further mid-semester modifications to Student’s schedule.

There was conflicting evidence as to whether Student should have been receiving math services from the Curtis Blake tutors pursuant to his IEP. The “Additional Information” section of his IEP referenced additional time having been allotted to the Curtis Blake tutor to assist Student with math concepts. There is no dispute that Student received said additional services during the 2009-2010 school year. Monson argues that they were not required to provide these services because they were not in the Service Delivery Grid. Parents argue that they were not required to appear in the grid because the Additional Information section referenced them. Although it is better practice to list all services that a student is to receive in the service delivery grid, a student should not be deprived of a needed service because a Team places it in the wrong place in the IEP. However, in this case, Mother testified that she asked that Ms. Mazur stop the math tutoring and focus only on Student’s English. She explained that Student was already short of his 300 minutes a week with the Curtis Blake tutor and she felt that Ms. Mazur should focus on Student’s English¹³ . (Mother) Thus, although the IEP required that Student receive math services, Mother requested that these services not be provided.

Although I have found that Monson is providing Student with a free appropriate public education in the least restrictive setting, I found Parents’ testimony that Student continues to not read independently to be compelling. Although Student is making academic progress he is not yet at a completely independent level in his language skills. For that reason, it is important that Monson maintain his current level of services even though many staff members have indicated that they do not believe that he requires the current level of support he receives. Student should be commended for his hard work and ability to persevere despite the frustration caused by his dyslexia. The Curtis Blake tutors should continue to work at making Student more independent and continue to focus on Student’s comprehension and writing skills. It is clear from the testimony of the Monson staff that Student is able to access the general curriculum and benefits from his education at Monson High School. He should continue to be provided with the opportunity to do so. His progress should be carefully monitored to ensure that he continues to improve his language skills and move toward more independence.

Although school staff have not seen evidence of Student’s anxiety and frustration very often this school year, Parents are persuasive that he continues to experience these feelings at home. The Team should consider whether Student requires a regular session with a guidance counselor or trusted staff member with whom he can discuss the frustration caused by his learning disability¹⁴ .

Because I have found that Monson Public Schools’ program is reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment, it follows that Student does not require a placement at the White Oak School.

ORDER

Based upon the foregoing, I find that Monson’s proposed IEP for the period from June 2, 2010 through June 1, 2011 is reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment.

The Team shall reconvene to review Student’s schedule for this semester. Consideration should be given to minimizing the amount of time that Student is required to be removed from academic subjects to receive services. In order to minimize disruption to Student’s daily class schedule, consideration should be given to providing some of his services outside of the regular school day if necessary.

The Team shall address the issue of compensatory services that Monson has offered to provide.

Finally, the Team shall determine whether Student requires services from the guidance staff or another adult to process his disability-related frustration and anxiety.

By the Hearing Officer,

____________________________________

Catherine M. Putney-Yaceshyn

Dated: January 11, 2011

1

Student only required extra help once in September when learning about negative numbers. (Sitnik)

2

Mr. Watroba testified that Student was actually receiving 75 minutes per week of academic support services from him. He stated that he reviews Student’s work with him and Student is able to ask him any questions, although he never has questions. (Watroba)

3

In one instance on a multiple choice exercise he was provided with three choices per example while the rest of the class had to choose from four. He wanted to have the four choices. (Doherty Lind)

4

Ms. Lampson is not certified in special education. (Lampson)

5

Ms. Warren is not a certified teacher. (Warren)

6

Initially she spent two hours per week working on math, then the time was reduced to one hour per week per parent request. (Mazur)

7

20 USC 1400 et seq .

8

MGL c. 71B.

9

20 USC 1412(5)(A)

10

For a discussion of FAPE see Hendrick Hudson Bd. Of Education v. Rowley , 458 U.S. 176, 188-189 (1992); Cedar Rapids Community School District v. Garret F., 526 U.S. 66 (1999); Burlington v. Department of Educatio n , 736 F. 2d 773 (1 st Cir. 1984). Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000); Stockton by Stockton v. Barbour County Bd. of Educ., 25 IDELR 1076 (4 th Cir. 1997); MC v. Central Regional School District , 81 F.3d 389 (3 rd Cir. 1996), cert. denied 519 US 866 (1966); Ridgewood Board of Education v. NE , 30 IDELR 41 (3 rd Cir. 1999). See also GD v. Westmoreland School District , 930 F.3d 942 (1 st Cir. 1991).

11

Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 203, 102 S.Ct. 3034, 3049 (1982).

12

There was testimony from Dr. Kemper that Student required small group language-based teaching in all of his academic classes. However, I did not find his testimony persuasive. (Kemper)

13

It should also be noted that Student does not have any identified disability in the area of math. (S-2, P-2)

14

The IEP states that Student should be encouraged to talk with somebody about his frustration and anxiety caused by his dyslexia, but does not provide for any consult or direct service in this area. (S-2, P-2)