COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Pentucket Regional School District
BSEA #10-6783
DECISION
This decision is issued pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 USC Sec. 1400 et seq., Section 504 of the Rehabilitation Act of 1973 (29 USC Sec. 794); the Massachusetts special education statute or “Chapter 766,” (MGL c. 71B) and the Massachusetts Administrative Procedures Act (MGL c. 30A), as well as the regulations promulgated under these statutes.
On April 26, 2010, Parent filed a hearing request with the Bureau of Special Education Appeals (BSEA) alleging that the Pentucket Regional School District (Pentucket or School) had deprived the Student of a free, appropriate public education (FAPE) during the prior two or more years. Specifically, Parent alleged that Pentucket had made extensive and ongoing procedural errors, had failed to appropriately consider evaluations documenting Student’s needs, and failed to document Student’s progress adequately. Parent alleged that as a result, services were delayed or inappropriately denied. In her initial hearing request, Parent asked the BSEA to order Pentucket to fund a summer program at the Landmark School for the summer of 2010, as well as a day placement at Landmark for the 2010-2011 school year, if Student were accepted at Landmark. Parent framed this request as one for compensatory services to make Student whole for deprivations of FAPE resulting from the alleged procedural violations referred to above. Parent also requested a re-evaluation to measure progress.
On June 4, 2010, Parent filed an amended hearing request in which she omitted the request for 2010 summer services and a re-evaluation (which had been conducted the previous month) and specific designation of Landmark School, and substituted a request for “compensation in the form of a free and appropriate educational placement with transportation for the 2010-2011 school year and 2011 extended year services.”
The hearing was postponed several times at the request of the parties (primarily the Parent) for various reasons, including attempts at resolution, completion of updated evaluations, and resolution of pre-hearing motions, and finally took place on October 19, 20, and 22 at the office of the BSEA in Malden, MA.
The Parent appeared pro se on behalf of herself and the Student. The School was represented by counsel. Each party had an opportunity to examine and cross-examine witnesses and submit documents into the record. The record consists of Parents’ exhibits P-7 through P- 30, and one document within P-4,1 School’s exhibits S-1 through S-33, approximately 15 hours of tape recorded testimony and argument, and the written transcript created by the certified court reporter. At the parties’ request, the conclusion of the hearing was postponed to November 30, 2010 for submission of written closing arguments and the record closed on that day.
Those present for all or part of the proceeding were:
Parent
Marjorie Wells Parent Consultant
Julie Cross Special Education Teacher, Pentucket R.S.D.
Deborah Scobert Special Education Teacher, Pentucket R.S.D.
John Tiano Special Education Director, Pentucket R.S.D.
Michelle LaPointe Special Ed. Coordinator, Pentucket Middle School
Michael Costanto Math teacher, Pentucket Middle School (Gr. 7)
Joseph Moldover2 Private Neuropsychologist
Colby Brunt Attorney for School
Darlene Coppola Certified Court Reporter
ISSUES PRESENTED
1. Whether the IEP and services for the following periods were appropriate: April 22, 2008 to October 2009 and February to June 2010.
2. If the foregoing IEPs were not appropriate, whether the School is liable for compensatory services;
3. Whether the IEP for the period June 2010 to June 2011 is appropriate or can be made appropriate;
4. If not, whether Student requires placement in the Landmark School or similar placement to receive a free, appropriate public education;
5. Whether Student’s sixth grade general education placement resulted in a denial of FAPE;
6. Whether unique circumstances exist relative to the Student that would require the School to pay for an independent evaluation at rates higher than state-approved rates.
POSITION OF PARENT
Student is an intelligent teenager with documented learning disabilities. These interfere with his ability to read, write organize his work, and generally to perform academically at the level of his potential. For at least the period covered by this hearing, Pentucket has denied Student a FAPE by failing to evaluate and re-evaluate Student appropriately and in a timely manner, by failing to provide IEPs with adequate and meaningful benchmarks and objectives, by failing to measure Student’s progress, and by significantly interfering with the Parent’s ability to participate in decisions regarding Student’s education, including the choice of sixth grade general education class placement, which had a direct impact on Student’s receipt of FAPE. As a result of the School’s procedural violations, Student did not receive the educational services he needed at the time he needed them. Consequently, he not only has been deprived of educational benefit, but also has regressed educationally and intellectually, and is at risk of disengaging from education.
Further, Student has deteriorated emotionally, both because he is aware of his lack of progress and because he feels that teachers blame him for his academic difficulties. Student requires a private out-of-district day placement at a school such as Landmark to remediate his weaknesses and enable him to make effective progress.
Finally, the School must pay for an independent evaluation from Parent’s chosen evaluator, even if the evaluator charges at a higher rate than is approved by the state for publicly-funded evaluations. The unique circumstances justifying payment at the higher rate include the School’s failure to conduct its own evaluations in a timely manner, and its failure to provide Parent with names of evaluators who charge at state approved rates. Additionally, higher payments are warranted because the individuals and facilities charging at state-approved rates have long waiting lists, and would not be able to evaluate Student within a reasonable time frame.
POSITION OF SCHOOL
The Parent has failed to carry her burden of demonstrating that past IEPs offered by Pentucket were not reasonably calculated to provide Student with a FAPE in the least restrictive environment, or that Student did not make effective progress in the programs provided by the District. Further, the most recent IEP proposed by the School in June 2010 is reasonably calculated to provide Student with FAPE. At all relevant times, Student has received services that were responsive to his special needs, and the evidence at hearing demonstrates that he has made effective progress. Parent has not demonstrated that Student requires an outside placement such as Landmark; Parent’s own evaluator has noted that Student has made excellent progress in Pentucket and has not suggested a different placement. Student has not been achieving to his potential, but this is primarily because he does not consistently complete homework and assignments. Specifically, Student lives with his father every other week, does not complete homework during those weeks, and often is not able to make up the work during his time with his mother. This is not the fault of the District.
Parent’s claims of procedural violations are not substantiated by the record. Even if Parent had proven such violations, they did not deprive Student of FAPE.
Finally, Parent has presented no evidence of “unique circumstances” relative to the Student that would justify compensating a private evaluator at higher than state–approved rates.
FINDINGS OF FACT
1. Student is a 13-year-old boy who lives within the Pentucket RSD and currently attends the eighth grade at the Pentucket Middle School. Student’s eligibility for special education and related services is not in dispute. Student’s current IEP calls for pullout services in writing and math, as well as in-class support and accommodations for organization.
2. Student has been described as an intelligent, pleasant, caring, well-behaved teenager. He can be reserved, but has many friends. Testing performed in 2009 and 2010 indicates that Student has strong intellectual abilities. In testing, he demonstrated high average to superior verbal skills and average to high average non-verbal cognitive skills, as well as solidly average working memory. He showed a relative weakness in processing speed, which was “low average.” Student also has been diagnosed with learning disabilities that affect his performance in math and written expression, as well as with weaknesses in executive functioning, which interfere with his ability to organize and produce written work in an efficient manner. (S-8)
3. Student’s academic testing in 2009 and 2010 showed very strong reading skills. (For example, his reading comprehension scores were in the “superior” range.) Student demonstrated average skills in structured tests of math and written expression, but had reduced skills in writing and math tasks that were less structured.
4. Emotionally, Student has experienced some anxiety and problems with self-esteem, at least partially related to his school performance.
5. There is no dispute that Student’s grades and MCAS scores are lower than expected given his ability, and that Student’s inconsistent homework completion is a major contributing factor.
6. Pentucket first evaluated Student in 2003, when he was in the first grade, in response to concerns about reading acquisition. Pentucket did not find him eligible for special education at that time, but provided accommodations and occupational therapy services under a Sec. 504 Plan to address handwriting, written output and some attentional needs. (P-7). Pentucket evaluated Student again in 2005, based on concerns about writing, reading, and attention, when he was in third grade, and again found Student to be ineligible for special education. Parents continued to pursue special education eligibility between 2005 and 2007. During that time, Parents and the School both filed hearing requests with the BSEA in an attempt to resolve their disputes. All of these matters resolved short of a hearing or decision.
7. In May 2006, Parents had Student evaluated by Joseph Moldover, Psy.D., a private neuropsychologist. Based on a review of prior assessments as well as an additional battery of neuropsychological testing and clinical interviews, Dr. Moldover concluded that Student had strong intellectual ability and was “a fluent reader with excellent comprehension…and solid decoding skills…” On the other hand, Student had weaknesses with verbal retrieval, organization, planning, and cognitive flexibility, which impaired his written output, as well as possible weaknesses in directional organization, sequencing, and task automaticity, which could affect math performance. Dr. Moldover concluded that Student was “at risk for escalating academic difficulties…” in writing and math, and was also an “emotionally vulnerable” child at risk of “disengagement from the learning process” as the gap between him and his peers grew. (P-4)
8. Dr. Moldover recommended an IEP based on a specific learning disability in written expression and math. Specifically, he recommended 4 to 5 pull-out tutorial sessions in each of these subjects during fourth grade to “close the gap” between Student and his peers. (P-4) Pentucket considered this report but did not find Student eligible for special education.
9. On January 11, 2008, when Student was in fifth grade, Parents and Pentucket executed a “Resolution Agreement and Release” (“Agreement”), that they had negotiated pursuant to a BSEA hearing request by Parents in 2007. In pertinent part, that Agreement provided for the following:
· The School would find Student eligible for special education.
· The School would issue an IEP providing for two sessions per week each, of specialized instruction in written expression and math, to be provided by a special education teacher, either individually or in a small group of “appropriately matched peers.”
· The Parents’ signature on the Agreement would “constitute the Parents’ acceptance of the IEP,” which was to be attached to the Agreement and incorporated by reference.
· The School would conduct a reading evaluation, convene a TEAM meeting to review the results of the evaluation, and determine whether Student required specialized instruction in reading.
· The elementary school special education coordinator [Deborah Scobert] would act as the parties’ liaison and would hold brief weekly conference calls with both Parents to discuss any issues or concerns regarding Student’s program. (S-2)
10. The IEP attached to the Agreement referred to Dr. Molderver’s 2006 assessment referred to above, as well as to school-based assessments conducted in 2005. “Student Strengths” listed in the IEP were “verbal comprehension, perceptual reasoning, working memory and processing speed indexes.” Areas of need, taken from Dr. Moldover’s report, included verbal retrieval, planning, cognitive flexibility, and shifting cognitive sets, which affected written expression and math performance.
11. The IEP provided for 2×30 minutes per week, each, of pullout instruction in English Language Arts (ELA) (for writing only), and math. Additionally, the IEP called for accommodations, including templates and graphic organizers for writing, chunking of larger assignments, untimed tests, and additional time to complete assignments.
12. The IEP contained two annual goals, in writing and math. In sum, the goals for Student were to improve the focus, coherence, and organization of his writing, and develop secure, grade-level understanding and skills in math. Progress was to be assessed via classroom assignments.3 (P-7)
13. Parents initialed each page of this IEP, apparently affirming their acceptance pursuant to the Agreement referred to above. (Mother)
14. Pentucket actually had conducted the relevant reading evaluation of Student shortly before the date of the Agreement, in mid-December 2007. The evaluator was Ms. Hilary Gordon. Ms. Gordon is a certified special education teacher with eight years of teaching experience in language-based classrooms. Additionally, Ms. Gordon is a licensed speech-language pathologist with 20 years of experience working with children in public and private schools, including 15 years working with elementary-aged children with language-based learning disabilities. (S-33)
15. Ms. Gordon’s evaluation consisted of the Comprehensive Test of Phonological Processing (CTOPP), the Lindamood Auditory Conceptualization test (LAC); English language arts (ELA) subtests of the Wechsler Individual Achievement Test (WIAT-II), Gray Oral Reading Test (GORT-4), Test of Word Reading Efficiency (TOWRE), and Test of Reading Comprehension-Third Edition (TORC-3).
11.Test results were as follows:
· CTOPP : Phonological Awarenes s: Elision—Average; Blending—low average; Composite—Average. Phonological Memory : Memory for Digits—Above Average; Nonword Repetition–Average; Composite—Average. Rapid Naming : Rapid Digit Naming—Below Average; Rapid Letter Naming—Below Average; Rapid Object Naming: Below Average; Composite: Below Average.
· LAC: Seventh grade to adult level.
· WIAT-II : Word Reading : High Average; Reading Comprehension : High Average; Reading speed and target words : Above to Far Above Average. Pseudoword Decoding : Average. Composite : Average to High Average.
· GORT-4 : Oral Reading Quotient : High Average to Superior (comprising rate, fluency, comprehension).
· TOWRE : Above Average (comprising sight word and phonemic decoding efficiency).
· TORC – 3 : General Vocabulary : Above Average; Syntactic Similarities : Average; Paragraph Reading : Low Average4 ; Sentence Sequencing : Average; Composite : Average.
12. In summarizing the results, Ms. Gordon stated that Student had relative weaknesses in sound blending and rapid naming, which he also had demonstrated in earlier evaluations; however, while these weaknesses might have hindered his early reading acquisition, he now had “overall [reading] abilities in the average to above-average range” including the following areas: decoding/word attack, sight word efficiency, fluency, and comprehension. (P-7)
13. In addition to conducting tests, Ms. Gordon reviewed Student’s records. She noted that in third grade, Student had scored in the “Proficient” range in the MCAS Reading Comprehension assessment. His score in the fourth grade ELA assessment was in the “Needs Improvement” range. After analyzing this score, Ms. Gordon found that the lowered score was the result of poor performance on the “long composition” assessment, and that “extracting only the reading comprehension score would have resulted in a score in the proficient range.” (P-7)
14. Ms. Gordon’s report contained no recommendations. She testified that she had not written recommendations because the formal testing did not detect any disability in the area of reading, and that, in fact, Student had strong reading skills. She further testified that the areas of weakness in sound blending and rapid naming did not impair his overall reading ability at the time of testing, even if they had interfered with initially learning to read several years earlier. (Gordon)
15. The TEAM convened on January 17, 2008 to review Ms. Gordon’s report. On January 23, 2008, Pentucket issued an N-1 form which notified Parents that Pentucket would not provide Student with specialized instruction in reading, based on Ms. Gordon’s assessment that Student’s reading performance was average to above average. The N-1 form further stated weekly conference calls would take place between the School and Parents. (These calls were required by the Agreement.) (P-7)
16. In a letter to the special education director dated February 4, 2008, Mother informed Pentucket that she disagreed with the summary and recommendations contained in the N-1, stating, “…the severe discrepancy between [Student’s] rapid naming deficit (well below average) and his comprehension (well above average) is evidence that [Student] has a Specific Learning Disability in the area of Reading.” The letter went on to say that in Mother’s view, Student’s weaknesses in rapid naming had a negative impact on Student’s reading comprehension, especially on the MCAS. On February 12, 2008, Pentucket forwarded Mother’s objection to the N-1 to the BSEA as a rejected IEP. (P-8)
17. Mother testified that she had intended to reject only the omission of reading instruction from the IEP, and wished to accept the other services and accommodations listed, and, in fact, Pentucket implemented the IEP for the remainder of the 2007-2008 school year (fifth grade). (Mother)
18. Mother felt that he had excellent teachers for fifth grade (he had one regular education teacher and one special education teacher) and, once the IEP was in place, made good progress, especially in math, but also in writing. (Mother)
19. Student’s final sixth grade IEP progress report, issued in June 2009, indicated that in math, Student had made very good progress, developing good computation skills in all four operations, and in multiplying fractions. He still needed to practice to master his multiplication facts. In writing, Student made progress in using graphic organizers to develop his ideas, in proofreading and editing, and in using more elaboration and richer vocabulary in his essays. (P-10) Student’s final sixth-grade report card showed grades of C+ in reading, writing, language skills and social studies, B in math, and B- in science. Homework and Effort grades were all “Satisfactory.” (P-10)
20. Although Pentucket extends elementary school through sixth grade, sixth graders, for the first time, change academic classes and teachers. Student was assigned to a team where he had two different regular education teachers for English Language Arts, Ms. Adams (who also taught science) and Ms. Thomas (who also taught social studies). Ms. Adams taught science and ELA on Mondays, Wednesdays and Fridays, and Ms. Thomas taught social studies and ELA on Tuesdays and Thursdays. Student had only one teacher for regular education math and another regular education teacher for reading. On Mondays and Thursdays, Student was pulled out of the second half-hour of his daily reading block for IEP writing instruction. Similarly, on Tuesdays and Thursdays, he was pulled out of the second half-hour of his math class for IEP math instruction. (P-11, Scobert). Not including his teachers for special education and specials, Student saw 4 different teachers per week. (P-11A)
21. Student was one of 20 students in his regular 6 th grade classroom. Seven of these students were on IEPs or 504 plans. The ratios of students with and without disabilities in the other 4 sixth grade classes were 6/21, 6/20, 5/23, and 3/22, respectively. Student’s and one other class were considered “co-taught” classrooms. (P-11A)
22. Parent had objected to Student’s sixth grade general education placement. She testified that Student had difficulty adjusting to having to change teachers for each subject; this difficulty was worsened by his having two different teachers for ELA. Parent testified that beginning in September 2008, Student “was shell-shocked. He sat there all day long. He couldn’t function. He was sick. There were all kinds of absences. He had a stomachache every day. He had a headache every day. He didn’t want to go to school. He was falling apart. That’s why.” (Mother)
23. Mother testified that Student was “overwhelmed.” He did not know what his homework assignments were, or did not understand the instructions. When Mother tried to contact teachers to clarify, her emails were forwarded to the Special Education Coordinator, Ms. Scobert,5 via the principal, which resulted in Mother not having timely information about assignments directly from the teachers. (Mother)
24. On September 22, 2008, Mother sent an email to all of Student’s teachers in which she reported Student’s difficulties in adjusting to the changed sixth grade schedule. Mother stated that given Student’s organizational problems, his adjustment was made even more difficult by his having to change homes every week. Finally, Mother wrote that Student had a “pleaser” personality, and would be “passive to the point that he falls apart—then he will shut down completely and it will be very difficult to reverse course….” (P-11)
25. On October 20, 2008, in response to Mother’s request, the School convened a meeting with both Parents, Student’s regular education (and reading) teacher, his special education teacher, Ms. Scobert (Special Education Coordinator), and Ms. Lauren Fain (Special Education Director). (P-11)
26. In a letter to Ms. Scobert dated November 7, 2008, Mother listed the following “solutions” that the had been agreed to at the meeting of October 20: sending home a duplicate set of books; helping Student complete his homework agenda at the end of each day so that Parents would know the assignments; assigning as homework the reading “mini-lesson” that student missed when pulled out of his reading block; and incorporating use of the Alpha-smart during writing pullouts. Additionally, the TEAM agreed to develop some test-taking accommodations for the next IEP review meeting. (p-11)
27. In the same letter, Mother raised additional concerns, including the effect of Student’s classroom assignment on his emotional well-being, as well as her frustration at the inability to communicate directly with teachers. (Mother also discussed concerns about Student’s feeling socially isolated, and having excessive absences, but put these concerns more in terms of the custodial situation than the classroom placement per se.) (P-11)
28. Attached to the letter of November 7, 2008 was a letter from Student’s outside therapist, Joseph Erickson, LICSW, dated October 24, 2008. Mr. Erickson’s letter stated that “due to [Student’s] executive functioning issues and learning disabilities, a schedule and classroom environment that minimizes…changes throughout the day and week to week would greatly assist him in accessing the curriculum… [T]he more consistent and predictable the class environment and schedule and fewer changes, the better. This does not mean, however, reducing his pull-outs as these are critical to his accessing the curriculum.” (P-11)
29. Pentucket made no changes in Student’s sixth grade classroom assignment.
30. In late January and early February 2009, Parents had Student undergo a neuropsychological re-evaluation by Dr. Moldover and Jeffrey Drayer, Ph.D.6 This evaluation consisted of review of records, clinical interviews and observations, standardized tests, and the Achenbach Child Behavior Checklist (CBCL) completed by Mother and Student’s classroom teacher. (P-15)
31. Testing revealed Average to High Average verbal and non-verbal abilities, and solidly average working memory, but Low Average processing speed, which was “a significant weakness.” This slow processing speed affected his performance on a test of rapid letter naming in the CTOPP, where he achieved a Low Average score. On the other hand, Student scored in the Superior range (grade equivalence of 11.2) in an untimed test of reading comprehension involving multiple choice questions. This result showed that Student performed at a higher level with structured tasks requiring less information output demand. (P-15)
32. On the Test of Written Language (TOWL-4), student showed improvement over prior testing in 2006, and was able to construct a simple, logical story in the “Average” range. Student’s processing speed negatively affected his performance, however, as he was not able to finish the writing assignment in the time allotted. Further, both his processing speed and his difficulty with producing written material in open-ended situations impaired his ability to grasp the main point of the picture that was the subject for the story. (P-15)
33. Math subtests of the WIAT-II indicated that Student had made progress in his math skills since 2006. Student achieved a score in the “High Average” range for Math Reasoning. He performed in the “Low Average” range for Numerical Operations. This lower score resulted from “information output difficulties,” which affected his performance with open-ended or abstract material. (P-15)
34. Testing indicated that Student had “significant difficulties’ with organization, especially visual-spatial construction. His memory was “Average” for contextual information such as a story, but “Low Average” for rote information like word lists.
35. On the CBCL, Mother endorsed items triggering concern for possible anxiety or depression. Student’s teacher did not indicate significant emotional or behavioral concerns but did note mild symptoms such as tiredness, seeming “apathetic or unmotivated,” and “underactive.” (P-15)
36. Student’s self-rating on a questionnaire measuring child depression did not indicate clinically significant depression, but did show some low self-esteem and concern about his learning difficulties.
37. Dr. Moldover concluded that Student had a learning disability in the areas of math and writing, with specific vulnerabilities in organization. Student’s neurologically-based output problems affected his ability to complete abstract and complex academic tasks, and his slow processing speed causes him to need more time to complete assignments than his peers. Student had made progress in math and writing, but still had challenges in his areas of weakness. Further, Student was emotionally fragile, at risk for clinical depression and anxiety, and his emotional condition had deteriorated since 2006. Dr. Moldover stated that Student continued to be at risk for “academic deterioration and school disengagement,” and his weakness would become more apparent as he entered middle school. (P-15)
38. Dr. Moldover recommended a continuation of his then-current IEP until middle school. In middle school, Dr. Moldover recommended direct, 1:1 instruction in organization, to be provided in a resource room, as well as copies of lesson plan outlines, and assistive technology. Finally, Dr. Moldover recommended weekly individual counseling, either in school or privately, to address symptoms of anxiety and depression. (P-15)
39. The TEAM convened in February 2009 for Student’s annual review and to consider the Moldover report. In an N-1 dated March 11, 2009, Pentucket proposed the following: for the remainder of sixth grade (until June 2009), reduction of out-of-class ELA from 2×30 minutes/week to 1×45 minutes/week, with pullout math remaining at 2×30 minutes/week. For seventh grade (2009-2010), Pentucket recommended 2×44 minutes/week of in-class ELA and math support. Parents partially rejected this IEP.
40. Student continued under his prior IEP through the end of sixth grade. Mother felt that he made some progress in writing and math, but was not making enough progress, and that he continued to complain about illness and not wanting to go to school. (Mother)
41. Student’s sixth-grade, year-end progress report for writing, issued in June 2009, stated that Student had made progress towards his annual goal of writing with “clear focus, coherent organization, and sufficient detail utilizing grade level material…” Student reportedly was able to produce a “succinct paragraph” in response to a prompt, using a topic sentence (restating the prompt), supporting details, and a concluding statement. He used a graphic organizer to plan longer written assignments. In general, his writing showed greater independent use of detail and description, as well as good grammar and sentence structure. His spelling continued to be inconsistent, but he used a word-processing correction tool effectively. (P-19)
42. The June 2009 progress report for math stated that student had achieved his math goal for the IEP period. He had “good” skills in addition and subtraction. His multiplication skills, which had been weak, had improved, and he was able to multiply multi-digit numbers. He also was able to divide multi-digit numbers by single or double digit divisors. He could accurately compute fractions in all operations, and could order fractions on a number line. He had good skills with simple algebra problems, and could apply formulas to measure geometric figures. (P-19)
43. Student’s third quarter grades for sixth grade were “Bs” in Reading, Language Skills and science. He earned a “C” in writing, “C+” in math, and “C+” in social studies. He earned “work habits” grades of “S” (satisfactory) for Language Skills, “S-“ for reading, math, and science, and “N” (needs improvement) for writing and social studies. Teacher comments indicated that Student showed “ability and progress” in various aspects of reading and reading comprehension, and active listening, showing understanding in writing assignments, various aspects of science class, and developing understanding of decimal operations, place values, variables, and formulas. He needed improvement in doing reading homework, and in various aspects of writing (supporting conclusions, organization, using variety in sentence structure and word choice, editing independently), as well as in planning science investigations independently. (P-19)
44. Student’s sixth grade MCAS7 scores were 244 (“Proficient”) in ELA and 220 (“Needs Improvement”) in math. In the Language sub-content area of the ELA exam, Student earned 100% of the possible points (compared to 82% earned by students, statewide, who performed at the Proficient level). In the Reading and Literature area, Student earned 71% of possible points, which also exceeded the statewide figure of 69%.
45. In the Math exam, student earned between 36% and 50% of possible points in each of the sub-content areas. Student’s strongest areas were geometry (57%), number sense and operations, data analysis, statistics and probability (all at 50%). His weaker areas were patterns, relations and algebra (all at 36%), and measurement (43%). Massachusetts students performing at a Proficient level statewide earned scores ranging from 65% to 78% in the sub-content areas.
46. In June 2009, Pentucket conducted a “transition meeting” to plan for Student’s transition to middle school the following September. Mother initially partially rejected the proposed IEP that was developed. On September 25, 2009, the TEAM convened to discuss the rejected portions of the IEP, and issued a revised IEP, covering the period from September 25, 2009 to February 27, 2010, which Mother accepted. (S-13)
47. This IEP contained goals in writing and math. In writing, Student’s “Current Performance Level” noted that Student could respond to questions orally, in list/bulleted format and short written narratives, that his written output, organization and independence had improved, but that he still needed to improve the use of description and detail, was weak in spelling, and inconsistent with capitalization. The annual goal called generally for Student to produce a “well-organized written narrative with adequate detail and description utilizing grade level material,” as evidenced by scores of at least 85% on class assignments.
48. Student’s “Current Performance Level” in math stated that Student still had inconsistent knowledge of multiplication facts, and less consistent skills on unit tests comprising assessments on a variety of skills. He could compute well and retain concepts. Student’s annual goal was to solve a designated number of problems using rational numbers and all four operations with at least 75% accuracy.
49. The IEP service grid provided for the following services: Grid A: 1×10 minutes/4-day cycle of consultation to teachers from the special education teacher; Grid B: 4×55 minutes/cycle, each of math and ELA services from the special education teacher; Grid C: 2×40 minutes/cycle of academic support. (S-13)
50. Accommodations included copies of notes, check-ins daily and during assignments, access to multiplication charts, graphic organizers and templates, chunking of assignments, encouraging use of keyboard, and extra time for exams and assignments. (S-13)
51. Student’s first quarter progress report for writing, issued on December 1, 2009, stated that Student had writing assignments in many academic classes, and found writing to be “challenging and…a task he might have a tendency to avoid.” Student’s writing assignments in academic classes were sometimes late or incomplete, and this lowered his grade. Student needed reminders from his teachers to add details and check his work for errors. (S-14)
52. The first quarter math report indicated that Student had made some progress, but needed some time to adjust to middle school expectations. He did not hand in homework consistently, which affected his understanding of concepts. He needed cues to participate in class and ask for help when needed. The problem of inconsistent homework had persisted.
53. Most of Student’s seventh grade teachers testified at the hearing. Student’s special education teacher, Julie Cross, testified at length regarding Student’s performance and progress. Ms. Cross stated that she considers multiple factors when deciding if a child were progressing or not, including graded assignments, informal observation, teacher feedback, and comparison of current with past performance. (Cross)
54. Ms. Cross testified that she believed Student made progress in both writing and, particularly, in math, such that by the end of seventh grade, his performance was pretty much at grade level. She stated that Student’s difficulties lay not in his ability to generate or comprehend ideas, which was very strong, but in his written production and completion of the work. (Cross)
55. Student’s problems with homework completion and organization had continued from prior years, and continued to be exacerbated by his weekly moves from one parent’s home to the other. Mother and Ms. Cross exchanged emails at least daily in an attempt to keep track of assignments and monitor Student’s progress. On the other hand, Student did participate in and benefit from work on organization in the resource room with Ms. Cross. (Cross)
56. Student’s seventh grade ELA teacher, Ms. Troyli, testified that Student had very strong reading comprehension skills, and often understood themes or concepts in reading assignments at a more sophisticated level than the other students in the class. Student also did well with spelling and grammar in discrete lessons, outside of the context of a written assignment. Student’s written expression was much weaker. In the mainstream class, ELA class Student often chose not to use the graphic organizers and other tools that were available; nonetheless, his writing improved in quality. His sentence structure was much better, he used more descriptive language, his organization had improved, and the themes of his writing were more understandable. Ms. Troyli testified that by the end of seventh grade, Student’s “written production [was] on the low end of a seventh grader, but it was perfectly…within the range. It’s just at the low end.” (Troyli)
57. Mr. Costanza, Student’s math teacher, testified that Student had stronger math reasoning skills than many of his classmates, had some weaknesses in basic arithmetic skills, but made progress over the seventh grade year. As with ELA, Student did not consistently complete homework, and this impacted his grades. (Costanzo)
58. The TEAM convened for Student’s annual review on or about February 12, 2010. The resulting IEP continued to have goals in ELA writing and math, but also added a third goal, in organization. (S-16)
59. The ELA writing goal continued to focus on Student’s organization, use of adequate supporting details, and improvement of editing skills. The math goal continued its focus on computation with factions, decimals, integers, mixed numbers and percents, and analysis of word problems. The “Current Performance Level” section noted that Student’s multiplication fact knowledge was still inconsistent, despite his strong understanding of concepts. (S-16)
60. The organization goal noted, in the “Current Performance Level Section,” that while Student had a good grasp of concepts and participated in class discussions, he had difficulty maintaining books and materials on a daily basis, tended to shut down and fall behind when feeling overwhelmed, and needed much support from home and school to use organizing tools such as assignment notebooks. The annual goal was for Student to improve his organizational and study skills. Benchmarks included use of tools and strategies to improve homework completion and test grades. (S-16)
61. The service delivery grid continued the Grid B services in math and ELA/writing from the prior IEP (4×55 minutes/cycle in each subject) and added 2×40 minutes/cycle of organizational support in Grid C. (S-16)
62. Mother rejected this IEP on April 13, 2010. Among other reasons, Mother objected to Pentucket having not conducted its own re-evaluation of Student to measure his progress. (S-17) Notwithstanding the rejected IEP and organizational goal, Pentucket did provide organizational support and instruction in Ms. Cross’ resource room as well as a weekly regular education “skills” class taken by all seventh graders. (Cross)
63. In response to the rejected IEP, Pentucket proposed and conducted a re-evaluation in May 2010, consisting of speech-language, psycho-educational, and educational assessments. The psychoeducational evaluation, conducted by school psychologist Christine Finn, consisted of standardized tests and rating scales, review of records, and observations. In sum, these test results were consistent with prior evaluations, showing Student to have at least average reasoning skills, coupled with slower processing speed. (S-18)
64. Measures of executive functioning and social-emotional functioning differed between home and school. Mother’s responses to the questionnaires showed that Student had considerable difficulty with organization and management of tasks at home, but much less difficulty in school, where many of his organizational problems were similar to those of other seventh-graders. Similarly, Student presented with no apparent social/emotional problems at school, but Mother had definite concerns about various emotional issues at home. In her testimony, Ms. Finn noted that Student was quite reserved at school, and may not necessarily open up about any emotional concerns he might have. (S-20, Finn)
65. Ms. Finn testified that processing speed could not be remediated, but could be accommodated with clear, structured visual materials. She further recommended in-school support and collaboration with Parents to assist with organization, and suggested that Mother share the social/emotional portions of Student’s test results with Student’s outside counselor. (S-20, Finn)
66. Ms. Cross conducted the educational evaluation, which consisted of Woodcock-Johnson Tests of Achievement (WJR-III), Test of Reading comprehension (TORC-3), Test of Written Language (TOWL-IV). (S-21)
67. On the WJR-III, Student’s scores were as follows:
· Total Achievement Cluster—75 th %ile
· Broad Math—56 th %ile
· Broad Reading Cluster—79 th %ile
· Basic Reading Skills—High Average
· Reading Comprehension Cluster—87 th %ile
· Broad Written Language—79 th %ile
· Written Expression cluster—82d %ile
· Basic Writing Skills—73d %ile.
All scores in oral expression, listening comprehension, and academic skills were in the Average, High Average or Superior range.
68. More detailed examination of Student’s math performance on the WJR-III showed
· Math Calculation—42d %ile
· Math Reasoning Cluster—77 th %ile.
In general, the test results showed that Student’s areas of weakness were in operations taught in elementary school and in processing speed, but that he had very strong reasoning skills for more complex problems. (S-21)
69. On the TORC-3, Student scored in the average range on all subtests.
70. On the TOWL-IV, Student’s scores ranged from average to above average in all subtests. His error patterns suggested that in school, he would benefit from more time to elaborate on his ideas, as well as editing for mechanical errors.
71. Ms. Cross recommended a number of strategies, including monitoring of assignment notebook by teacher and Parents, weekly Parent-teacher check-ins, cues, predictable expectations, graphic organizers, extended time limits for writing, encourage use of computer, guided reading format, help with planning and organization, rubrics, copies of notes, study guides prior to tests, positive reinforcement for meeting deadlines, and contact with guidance counselor as needed. (S-21)
72. The School’s speech-language therapist, Ms. Thorpe, conducted an assessment consisting of the CTOPP. Student scored in the above-average range in Phonological Awareness and Phonological Memory, but below average in Rapid Naming, indicating below average long term memory and word retrieval. The test report stated that these weaknesses might interfere with cause and effect, verbal reasoning, making predictions, or finding words to “explain, embellish, and make his point easily.” The evaluator recommended various accommodations to enable Student to understand information. (S-19).
73. The TEAM issued an IEP that was similar or identical to the IEP of February 2010. Mother rejected the IEP and placement on July 17, 2010. (S-23) In a letter accompanying the rejected IEP, Mother stated her reasons for rejection as “Incomplete testing,” referring to omission of certain subtests of the CTOPP, failure of Pentucket to address persistently low scores in the “Spelling of Sounds” subtest of the WJR-III, omission of many (unspecified) evaluation recommendations from the IEP, need for further testing to determine existence of a specific learning disability in math calculation, no change in math goals, and accommodations without remediation in areas of need. (S-25)
74. Student’s year-end progress report for seventh grade, issued in June 2010, indicated that for ELA/writing, Student had shown some improvement in his willingness to complete writing tasks, and had demonstrated ability to write a well-organized essay; however, he needed to allot enough time for himself, and ask for help when needed. Student needed much prompting to complete writing homework assignments, and his progress was impeded by late or incomplete homework. (P-27). The final progress report in math indicated that Student had become more willing to seek help and accept assistance in the classroom, as well as to participate in his small group special education services. He also had become more consistent with homework.
75. Student’s fourth quarter grades in core academics for seventh grade were: English—C, Social Studies—C, Math—B-, Science—C. His final grade averages in these subjects, reflecting all four quarters were, respectively, D+, C+, C-, C. Teacher comments were to the effect that Student needed to improve organization and had “inconsistent effort.” (P-25)
76. Student’s spring 2010 MCAS scores were: ELA—240 (bottom of “Proficient” category), and Math—230 (“Needs Improvement”). Student’s lowest sub-content score in ELA was 33% in “Composition, Topic Development.” All other sub-content scores ranged from 63% to 100%. His lowest math sub-content scores were “Number sense and operations” (36%) and “Geometry” (43%). All other math scores ranged from 67% to 82%. Student’s ELA score had decreased from 2009, and his math score had increased. (P-23) Due to miscommunication, Student apparently had missed some or all of the after-school MCAS math tutoring sessions offered at the middle school. (P-23)
Social/Emotional Issues
77. While there is no suggestion that Student has or had a diagnosed emotional disability, Mother, School personnel, and outside evaluators had expressed concern about Student’s emotional state. As stated above, Dr. Moldover’s 2009 report indicated that Student’s emotional state had deteriorated since 2006, and that Student was at risk of disengagement from the academic process as well as possible anxiety or depression. Mother had secured private counseling for Student with Mr. Joseph Erickson, who testified at hearing that Student wanted to do better in school and would benefit from close home-school coordination to support homework completion. (Mother, Erickson)
78. Mother testified at hearing that she sees Student’s self-esteem falling, that he feels his teachers are always disappointed in him, that “he refers to himself as a ‘sped’…and I just see him getting more and more like he doesn’t care anymore. “ (Mother)
79. In eighth grade (2010-2011), Mother sees Student as “miserable,” and “overwhelmed,” and still struggling with homework. She feels his difficulties are exacerbated by his living in two different homes. (Mother) Mother feels that it is unclear what kind or support Student is receiving or what it is designed to do, and feels he needs explicit instruction in such areas as how to keep an agenda book. (Mother)
Parents’ Proposed Program
80. In April 2010, Mother applied to the Landmark School for Student. Landmark is a private, Ch. 766-approved school for students with language-based learning disabilities in the context of normal intellectual ability. (P- 29) Based on a review of Landmark literature, discussions with staff, and a tour of the facility, Mother believes that Student fits within the profile of Landmark students. She feels that he needs this placement because he currently is “emotionally falling apart because he feels like he’s stupid. He doesn’t understand if he’s so smart why he can’t get good grades and why he’s not doing well. And he’s…exhausted.” (Mother)
Program Proposed by the School
Pentucket’s program has been described extensively, above.
FINDINGS AND CONCLUSIONS
Based on the evidence on the record and the parties’ arguments, I conclude the following with respect to each of the issues that were the subjects of this hearing:
1, 2. The IEPs for April 22, 2008 to October 2009 and February to June 2010 were reasonably calculated to provide the Student with a FAPE; therefore, Pentucket has no liability for compensatory services.
3. The appropriateness of the IEP for June 2010 to June 2011 is inconclusive, and it is unclear whether and how it can be made appropriate; further specialized evaluation of the program is required, as will be described below.
4. Parent has not met her burden of showing that Student requires placement in Landmark School or a similar placement to receive FAPE.
5. Parent has not demonstrated that Student’s sixth grade general education program resulted in a denial of FAPE.
6. The record does not indicate that unique circumstances exist that would justify the School paying more than state-approved rates for an independent neuropsychological evaluation.
My reasoning follows.
There is no dispute that Student is a school-aged child with a disability who is eligible for special education and related services pursuant to the IDEA, 20 USC Section 1400, et seq ., and the Massachusetts special education statute, G.L. c. 71B (“Chapter 766”). Student is entitled, therefore, to a free appropriate public education (FAPE), that is, to a program and services that are tailored to his unique needs and potential, and is designed to provide ‘effective results’ and ‘demonstrable improvement’ in the educational and personal skills identified as special needs.” 34 C.F.R. 300.300(3)(ii); North Reading School Committee v. BSEA , 480 F.Supp. 2d 489 (D. Mass. 2007); citing Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993).
While Student is not entitled to an educational program that maximizes his potential, he is entitled to one which is capable of providing “meaningful” educational benefit, in light of his potential. See Bd.of Education of the Hendrick Hudson Central School District v. Rowley , 458 US 176, 201 (1982), Town of Burlington v. Dept. of Education, 736 F.2d 773, 789 (1 st Cir. 1984). That is, a school must consider a child’s potential in determining whether an IEP is calculated to provide that child with FAPE. Rowley , supra, at 202, Lessard v. Wilton Lyndeborough Cooperative School District , [cite].8
Education must be provided in the least restrictive environment (LRE) consistent with an appropriate program; that is, students should be placed in more restrictive environments, such as private day or residential schools, only when the nature or severity of the child’s disability is such that the child cannot receive FAPE in a less restrictive setting. On the other hand, the opportunity to be educated with non-disabled students does not cure a program that otherwise is inappropriate. School Committee of Town of Burlington v. Dept. of Education of Mass ., 471 U.S. 359 (1985).
In a due process proceeding to determine whether a school district has offered or provided FAPE to an eligible child, the burden of proof is on the party seeking to change the status quo . In the instant case, as the moving party challenging the School’s IEPs from April 2008 to October 2009, and February to June 2010, Parent bears this burden. That is, in order to prevail, she first must prove, by a preponderance of the evidence, that Pentucket’s IEP and services were not appropriate, i.e., were not reasonably calculated to provide Student with FAPE. The School acknowledges that it bears the burden of proof on the appropriateness of the current IEP, covering June 2010 to June 2011. Schaffer v. Weast , 546 U.S. 49, 44 IDELR 150 (2005).
The parties agree that the Student is an intelligent, insightful, and likeable young man with many strengths, including reading and listening comprehension, and reasoning skills in math and elsewhere. The parties also agree that Student struggles with aspects of math (calculation, for example), as well as with open-ended written expression. They also agree that he has significant problems with organization on a daily basis. The record indicates that Student has difficulty with the mechanics of keeping track of assignments, bringing completed work and materials to school or to the correct class, as well as with managing time to do assignments and long term projects in a timely manner. He has had significant, chronic problems with homework completion. There is no dispute that Student’s current living situation, where he spends alternating weeks with each Parent, adds to his existing organizational problems. The possibility has been raised that differing expectations of each Parent, and differing levels of involvement with school issues, also contribute to Student’s difficulty with doing homework consistently.
The parties dispute whether Student has been making effective educational progress. The Parent’s position, in sum, is that the School is not addressing, and has not addressed, Student’s educational needs in a coherent manner, and that in fact, he not only is not making effective progress, he is losing ground in some areas and is becoming increasingly negative and alienated from his educational experience. The School, on the other hand, asserts that it has appropriately met all of Student’s educational needs, adding an organizational goal to Student’s IEP when it was clear that this was needed, that Student is, in fact, making progress, and that his lowered grades are the product of his not doing homework on a regular basis. Much of the homework difficulty stems from the custodial arrangement, over which the School has no control.
Based on the evidence, I find that the IEPs prior to the IEP for June 2010-2011 were reasonably calculated to provide Student with FAPE. Each IEP took into account the evaluations both by Dr. Moldover and by its own evaluators to develop goals and benchmarks in areas of Student’s documented needs, first, in writing and math, then, when Student’s organizational difficulties became apparent, in organization. In fifth grade, there is no real dispute that Student made effective progress. In sixth grade, Student presented at home as “lost” and unhappy with the transition to a rotating teacher format; however, progress reports and Dr. Moldover’s evaluation indicate that he made progress. Other than a general suggestion from Student’s therapist, Mr. Erickson, that Student would do better with minimal changes during his day, there was no testimony or documentary evidence indicating that Student failed to make progress during his sixth grade year. Therefore, I cannot find that Student did not receive FAPE from April 2008 to October 2009, which covers the latter portion of fifth grade as well as sixth grade, and Student is not entitled to compensatory services for this period.
The IEP for the second portion of seventh grade, October 2009 to June 2010, likewise appears to have been calculated to address Student’s unique needs, as they were known by the TEAM at the time the IEP was developed. Specifically, for example, the School began providing Student with organizational help. Ms. Cross, Student’s special education teacher, spent a tremendous amount of time supporting Student and collaborating with Mother to help Student improve his educational performance and organizational skills. Standardized testing conducted by the School in the spring of 2009 documented that most of Student’s core academic skills were average or above.
By the end of seventh grade, however, it was clear that neither Student’s grades nor his MCAS performance reflected his apparent potential as reflected in standardized testing. By late seventh grade, after Student had received special education services for about 2.5 school years, it would be reasonable to expect him to earn better than the C’s and occasional D’s that appeared on his report cards. Even more concerning are Mother’s reports of Student’s increasing loss of self-esteem, and sense of being overwhelmed. Mother testified without contradiction that these problems have continued into eighth grade.
Student’s lack of homework completion clearly contributes to his grades, as the School asserts. Further, I concur with the parties that Student’s having to change homes on a weekly basis probably contributes to his inconsistent performance in this area. Notwithstanding these factors, Student’s grades and increasing alienation indicate that the IEP for 2010-2011, which essentially repeats the prior IEP, is not reasonably calculated to provide Student with FAPE. Put another way, while the seventh grade IEP took available information into account and was tailored in a way to meet Student’s needs when it was formulated, given the information that the School had at the time, by the end of the seventh grade year, Student’s progress demonstrated that something else needed to be done for eighth grade.
The School cannot control whether and how well Student does his homework. Nor does it have any control over Student’s living situation or the extent to which Student’s Father participates and collaborates with Student’s program.9 This does not mean that the School has no obligation to address the gap between Student’s ability and his achievement, particularly given his apparent loss of self-esteem and interest in school.
The dilemma is, what must the School do? The record does not support a finding that The Landmark School is appropriate for Student, given his strong reading and language skills. Further, no witnesses apart from Mother, including Dr. Moldover, recommend any removal from the public school setting; therefore, I decline to order this placement. There may be changes that can or should be made to the existing IEP, but the record does not show what those changes should be, whether those changes would make the IEP appropriate, or whether a different program must be located or created.
For these reasons, it is appropriate for the parties to immediately secure an outside evaluation, by an evaluator with expertise in educational programming for teenagers with profiles similar to Student. The outside evaluator should evaluate the appropriateness of Student’s program10 within the context of Student’s patterns of strengths and needs, his current living situation, and the structure and resources of both the Middle School and the High School, given that Student is midway through his eighth grade year. Such an evaluation should make clear whether and how Student’s IEP should be amended. If the IEP cannot be amended to allow Student to stay in his current program, such evaluation should indicate what type of program the School should locate or develop—either within or outside of Student’s current middle school or district–to meet Student’s needs.
Payment for Independent Evaluation
Mother testified that she is in the process of pursuing an updated neuropsychological evaluation from Dr. Moldover. She seeks School funding of that evaluation. It is anticipated that Dr. Moldover will charge more than state-approved rates for the assessment. Mother asserts that circumstances exist that justify requiring the School to pay higher rates. I decline to grant Mother’s request. There is no evidence that Student presents with highly unusual disabilities, that Student has not been evaluated for a long period, that a new neuropsychological evaluation is urgently needed, or that there are no appropriate evaluators in the area who do accept state-approved rates. I find, therefore, that there are no “unique circumstances of the [S]tudent [that] may justify an individual assessment rate that is higher than that normally allowed.”
ORDER
Within fourteen calendar days of the date of this Decision, Pentucket shall retain and pay for an appropriately-credentialed professional with expertise in analyzing, designing and implementing services for adolescents with profiles similar to Student. The School shall not limit its compensation to “rate-setting rates,” if a higher rate is necessary to secure appropriate services. Pentucket shall seek and seriously consider input and suggestions from the Parent on the selection of an evaluator, and the parties shall attempt to reach agreement on same; however, in the interests of time, Parent may not veto the School’s choice of evaluator.
This evaluator shall conduct whatever record reviews, interviews, observations (of both the Student and the School) and/or assessments of Student he/she deems professionally appropriate and shall make written recommendations to the TEAM, including Parents, about whether and how Student’s IEP and/or service delivery can be adjusted to meet his needs within his current placement. If such adjustments cannot be made within the current setting, in the view of the evaluator, he or she shall make recommendations about the type of program and services that the Student does need. The Team shall consider the recommendations of the expert and develop a new or amended IEP, if appropriate, and implement same upon consent of the Parent.
By the Hearing Officer:
_______________________ ______________________
Sara Berman
Date: January 10, 2011
1
Exhibits P-1 through P-6 were excluded, with the exception of Dr. Moldover’s report, contained within P-4.
2
Dr. Moldover testified by speaker phone.
3
Additionally, in early March 2008, the School issued an IEP amendment which listed various MCAS accommodations that had been erroneously omitted from the original document. Mother accepted this amendment.
4
Student missed two questions early in the test and so could not be given credit for later correct answers.
5
The Settlement Agreement had designated Ms. Scobert as the liaison for questions from Parents. Although this did not preclude Parents from speaking to individual teachers, it appears that teachers forwarded inquiries to Ms. Scobert. (Scobert, Champion)
6
For convenience, the report will be referred to as the 2009 Moldover report.
7
Student had accommodations for MCAS.
8
For an extensive discussion of the FAPE standard, see In Re: Cohasset Public Schools , BSEA 09-4922 (Crane, 2009)
9
Clearly, from the record, this situation is not within Mother’s control, either.
10
While such an evaluator may, in his/her professional judgment, decide to conduct assessments of Student, the emphasis should be on looking at the “fit” between the Student and his program, and addressing both the gap between Student’s ability and achievement and his apparent growing disengagement from the educational process.