COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Chicopee Public Schools BSEA # 05-2920
DECISION
This decision is issued pursuant to M.G.L. 71B and 30A, 20 U.S.C. § 1401 et seq., 29 U.S.C. 794 and the regulations promulgated under those statutes. A hearing was held on May 2, 2005 at the offices of Catuogno Reporting Services in Worcester, MA; May 5, 2005 at the offices of Catuogno Reporting Services in Springfield, MA.; and May 6, 2005 at the offices of Catuogno Reporting Services in Worcester, MA. Those present for all or part of the hearing were:
Mother
Father
Robert Kemper Speech-Language Pathologist, Psycholinguistics Associates
Jeff Kimball Teacher, Chicopee Public Schools
Terry Shotland Teacher, Chicopee Public Schools
William Mattavi Teacher, Chicopee Public Schools
Judith Souweine Psychologist
Andrea Stolar Special Education Supervisor, Chicopee Public Schools
Daniel Schreier Director of Special Education, Chicopee Public Schools
Derek Beaulieu Attorney for Parents
Andrea MacGovern Advocate for Parents
Claire Thompson Attorney for Chicopee Public Schools
William Crane Hearing Officer, BSEA
The official record of the hearing consists of documents submitted by both parties (joint exhibits) and labeled as exhibits J-1 through J-40; documents submitted by the Parents and labeled as exhibits P-1 through P-19; documents submitted by the Chicopee Public Schools (Chicopee) and labeled as exhibits S-1 through S-7; selected portions of a transcript of testimony of Daniel Schreier from the previous BSEA Hearing1 (transcript of Schreier testimony);2 selected portions of a transcript of testimony of David Drake from the previous BSEA Hearing (transcript of Drake testimony);3 and three days of recorded oral testimony and argument. The parties submitted written closing arguments on May 27, 2005, and the record closed on that date.
Issues
1. Whether the 2004-2005 individualized education program (IEP)4 developed by Chicopee is reasonably calculated to provide a free, appropriate public education to Nelida5 in the least restrictive setting?
2. If not, whether additions or other modifications can be made to the IEP in order to satisfy this standard?
3. If not, whether placement at the White Oak School would satisfy this standard?6
Profile, IEP and History
A. Profile .
Student is a sixteen-year-old young woman (date of birth 3/14/89) who resides with her parents in Chicopee, MA. During this school year, as well as the previous school year, she has attended the White Oak School, a private day school in Westfield, MA, providing educational services to students with language-based or specific learning disabilities. Student is currently completing her 10 th grade. Testimony of Parent; exhibits J-1, P-15.
Student has been diagnosed with a language-based or specific learning disability that is manifested in difficulties with oral language expression, reading and written expression. Testing indicates that she has average cognitive abilities, with a discrepancy between her achievement and intellectual abilities. Testimony of Kemper, Souweine; exhibits J-1, J-40.
B. Individualized Education Program (IEP) .
Chicopee has proposed an individualized education program (IEP) for Nelida for the period 9/1/04 to 6/30/05. The IEP calls for consultation services from a learning disabilities consultant for 30 minutes, once each week. The IEP further calls for each of the following direct services to be provided by a special education teacher for 50 minutes, 5 times each week: reading tutorial, language arts, math, social studies, oral expression and science. In addition, the IEP calls for speech/language services to be provided by speech staff for 30 minutes, once each week. Exhibit J-1.
Chicopee’s proposed IEP further explains the specially designed instruction to be provided Nelida, as well as accommodations to be provided, including multi-sensory instruction, multi-step tasks broken down, teacher prompts, mnemonics, study guide, webbing, template, use of word processor, word banks, semantic mapping, flashcards, visualization techniques, and vocabulary development in all areas of the curriculum. Parents have not accepted this IEP. Exhibit J-1.
It is this IEP for the 2004-2005 school year (Nelida’s 10 th grade year) that is the subject of the instant dispute.
C. Previous Hearing and Decision .
In January and February 2004, Parents and Chicopee (the same parties as in the instant dispute) litigated the appropriateness of the then-proposed IEP for Nelida for her 9 th grade year. The BSEA Hearing Officer issued a decision, dated April 7, 2004, finding that Chicopee’s IEP was not reasonably calculated to provide Nelida with a free, appropriate public education, and ordering Chicopee to reimburse Parents for expenses associated with their placement of Nelida at the White Oak School.7 Chicopee appealed the BSEA decision to federal District Court, resulting in a decision favorable to Parents.
The subject of the previous dispute, as in the instant dispute, is a particular IEP proposed by Chicopee for Nelida. Each IEP is unique, reflecting the services and placement that Chicopee believes to be appropriate for Nelida for the particular period of time covered by the IEP. The IEP that was the subject of the previous Hearing is not before me, and neither party has requested that it be admitted into the record of the instant dispute.
Each BSEA decision is decided only on the basis of the evidentiary record and argument for that particular dispute. As I made clear to both parties at the outset of the Hearing in the instant dispute, other than these portions of the previous record that have been explicitly entered into the record of the instant dispute, I do not consider the evidentiary record of the previous dispute.8
Within the previous BSEA decision, there are several findings that relate to the instant dispute. I consider these findings below, and in several instances, I adopt them. However, for the reasons already explained, the previous findings cannot, by themselves, be determinative regarding the appropriateness of Chicopee’s currently-proposed IEP.
Summary of the Evidence
1. Nelida’s father : Parent testified that Chicopee proposed that his daughter be placed in a program (recently developed by Chicopee for learning disabled students) called the Brighter Beginnings program. He explained that he first became aware of this program at a Team meeting in the summer of 2004. He explained that although Chicopee staff spoke about the program, he did not receive enough information about the program to understand it. He noted that he asked about teachers and their qualifications, and was told that Chicopee did not yet have the teachers in place and that Chicopee was continuing to work on this. He stated that he rejected Chicopee’s proposed IEP because he wanted to observe the program before deciding whether it would be appropriate.
2. Parent testified that after repeated attempts, he and his daughter (Nelida) visited Brighter Beginnings with Ms. MacGovern (Parents’ advocate) on February 16, 2005; he also accompanied Dr. Kemper on his visit to the program. He explained that during the February visit, his daughter was at first “a bit” nervous, and then during the course of the visit became quite anxious. He stated that she told him that (1) she felt sorry for the students in the program, (2) she felt there would be a stigma attached to being with other children who do not have her learning disability, (3) the class would likely be distracting (because of students’ talking to each other and students’ not paying attention) and therefore would be a difficult environment within which to learn, and (4) she does better in a school with greater structure than she observed. Parent further testified that by the end of the visit, his daughter was highly agitated; by the end of the day, she was bothered by the whole experience.
3. Parent testified that a month after the February 16, 2005 visit to the Brighter Beginnings program, he again spoke with his daughter about the visit, and she explained to him that (1) her biggest fear was that she would not be able to learn in this program because the environment is highly distracting, (2) the program is not sufficiently structured for her, (3) the program does not utilize grammar templates which she needs, and (4) she would not fit into the program emotionally. Parent also noted that his daughter said that she benefits from a program where all the children have dyslexia.
4. Parent testified that his daughter is doing extremely well at White Oak, where she is popular and happy. Parent explained that she is making educational progress toward her goal of attending a four-year art college in order to pursue her goal of becoming an artist. He also stated that he is concerned that if Nelida attends the Brighter Beginnings program, she will fail to thrive and make progress, will not be able to access the curriculum, and will not be admitted to a quality college.
5. Andrea MacGovern : Ms. Andrea MacGovern testified that she is familiar with Nelida, having first been contacted by Parents at the end of Nelida’s 4 th grade to assist and advise them regarding additional testing and educational services for her. Ms. MacGovern explained that she has been providing this kind of assistance to over 1,000 students and their families over the past 16 years.
6. Ms. MacGovern testified that she is generally familiar with the Brighter Beginnings program through the program description and through one of her other clients. She testified that she observed the program for an entire day on February 16, 2005. During the visit, she spoke with several teachers.
7. In her testimony, she described the number of students and number of teacher(s) in each class that she observed. She also described her attempts to try out, as though she were a student, the reading program used by Brighter Beginnings (READ 180) during her visit.
8. David Drake : Parts of the transcript of Mr. David Drake’s testimony from the previous BSEA Hearing were admitted into evidence in the current dispute.9 When he testified in the previous Hearing, Mr. Drake was the Headmaster of White Oak School. The transcript does not describe Mr. Drake’s education or work experience. Mr. Drake did not testify in the present dispute.
9. Mr. Drake’s testimony was that he became familiar with the reading program used by Chicopee at its Brighter Beginnings program (READ 180) through review of (1) a demonstration compact disc, (2) written materials (including exhibits in the previous BSEA Hearing) and (3) the READ 180 website. Mr. Drake made clear that he is not familiar with the manner in which READ 180 would be implemented by Chicopee, nor is he familiar with the needs of Nelida, but rather he considered the appropriateness of this program more generally for use at his school (White Oak School).
10. Mr. Drake’s testimony was that READ 180 appears, from the literature, to be most effective for students in regular education, next most effective for students with English as a second language, and, finally, of benefit for students with disabilities, but without indication of the specific nature of the disabilities of the students whom it would benefit. He further explained that READ 180 appears to help most with comprehension and vocabulary, which are areas where one would expect to see growth for educationally-deprived students. He concluded that READ 180 is best understood as a “wide-scale sort of public-health kind of response rather than a highly-targeted medical kind of response”. Within READ 180, Mr. Drake “saw very little of what I would consider to be typical highly-recommended, state-of-the-art rule-based instruction or even rule-based analysis in this material.”
11. In his testimony, Mr. Drake seemed most concerned by the inability of a computer to replicate what a teacher would (hopefully) do to listen to and analyze a particular student’s successes and errors and then provide an appropriate response — a response that requires “significant adaptability” on the part of the teacher and further requires an immediate response from the teacher in order to preserve the learning moment. Mr. Drake’s testimony continued: “It’s that individualization, that knowledge and insight that you get with training and sensitivity and experience of a teacher rather than the canned response of a cookbook, a page-turner manual or a machine-based instructional imitation”.
12. Mr. Drake’s testimony concluded that READ 180 “was not, at this point, even close to being a desirable program” for White Oak School, as compared to other, available programs.
13. Robert Kemper : Dr. Robert Kemper testified that since 1992 he has been President of Psycholinguistic Associates, Inc. where currently his exclusive work is performing psycholinguistic evaluations of children with a learning disability or dyslexia. Dr. Kemper also has provided consultation to programs serving learning disabled students, including White Oak. Dr. Kemper has held a variety of other positions as reflected in his resume (exhibit J-41). Dr. Kemper holds a PhD in speech language pathology, which he received in 1985.
14. Dr. Kemper testified that a psycholinguistic evaluation is a comprehensive evaluation of all areas of language necessary to be successful in school. He explained that language can be understood as represented by a triangle, with the base of the triangle (and foundation of language) being listening comprehension, the middle level of the triangle (which is built upon the foundation of listening) being reading, and the top of the triangle (which is built on listening and reading) being written expression. He stated that this triangle model reflects the theoretical underpinnings of psycholinguistics.
15. Dr. Kemper testified (and his written evaluation report reflects) that he conducted a psycholinguistic evaluation of Nelida on April 22, 2003, administering a variety of oral language, reading and written expression tests, as well as a test of phonological processing. He testified (and his report reflects) that he concluded that Nelida presents with a language-based learning disability that is manifested in difficulties with oral expression, reading and written expression. He noted that his diagnosis of “language-based learning disability” indicates that the underpinning for Nelida’s deficits is a disorder in language.10
16. Dr. Kemper testified that Nelida also has dyslexia, which is a more specific disorder than (and is included within) language-based learning disability. Dr. Kemper explained that his written report does not indicate a diagnosis of dyslexia because Nelida’s test scores were not so low as to justify this diagnosis, and he has not evaluated Nelida since his original evaluation of April 22, 2003. He stated that he reached the conclusion that Nelida has dyslexia based upon his having “suspicions” (based upon testimony at the previous BSEA hearing between these parties) that Chicopee administered the Comprehensive Test of Phonological Processing (CTOPP) in a manner that was inappropriate with the result that there may have been a greater “practice effect” than he previously realized. As noted in Dr. Kemper’s evaluation report, Chicopee administered CTOPP to Nelida shortly before Dr. Kemper administered this same test. Dr. Kemper testified that his scores for Nelida may therefore have been inflated. From this, Dr. Kemper concluded that Nelida should be diagnosed as having dyslexia.
17. Dr. Kemper’s report states that Nelida would not likely be successful in accessing a typical ninth grade curriculum, even with “abundant” modifications and accommodations, and he therefore recommended that Nelida be educated in an alternative educational program. Dr. Kemper explained in his testimony and report that he recommended that this alternative educational program be a substantially-separate, multi-sensory, language-intensive program that includes the following components:
· presentation of information that stimulates all sensory modalities;
· implementation within a substantially separate school that is devoted to addressing the needs of children who have significant language impairments;
· student/teacher ratio no greater than eight to one;
· direct teaching performed in a systematic manner;
· continuous review of previously learned information;
· teaching of skills across various contexts in order to facilitate generalization;
· all teachers trained sufficiently to provide instruction in a multi-sensory, structured language program setting;
· a daily, individual tutorial with a multi-sensory, code emphasis for reading, spelling and written language instruction.
18. Dr. Kemper’s report made a number of more specific recommendations, including but not limited to the LiPS program, a code emphasis reading approach that uses an Orton-Gillingham methodology, and a reading comprehension program such as Visualizing and Verbalizing, in addition to the comprehension strand of Project Read.
19. Dr. Kemper testified that a language-based program with systematic, rule-based methodologies is important because children with a language-based learning disability have not been able to learn language through normal systems, and therefore language needs to be taken out of context and specific rules explicitly taught – for example, rules as to how words are spelled, or how words are pronounced. He stated that these rules should be taught systematically and proactively, moving through a progression of rules.
20. Dr. Kemper testified as to what he meant when he stated that teaching should be systematic – that is, using a scope and sequencing methodology, move from one skill to another building from what has been learned. He explained that teaching should be multi-sensory so that all senses are being activated and so that there is a redundancy of teaching that would not be necessary with typical students. He recommended the use of Project Read as it is structured and systematic in terms of scope and sequencing for students with a language learning disability or dyslexia.
21. Dr. Kemper testified that, in his opinion, his recommendations for Nelida from his April 2003 evaluation and report would be valid currently for the following reasons: as a “rule of thumb”, with a student who has a language learning disability, after one year of appropriate instruction, one sees qualitative but not quantitative changes; by the end of the second year, one sees small quantitative changes; by the end of the third year, one sees statistically significant changes; and a fourth year is needed to coalesce the student’s skills.
22. Dr. Kemper testified that the June 2004 test results reflected within the currently proposed IEP (exhibit J-1, page 2 of 26) are significantly above the test scores that he obtained but that the IEP test scores may be inflated because of a practice effect from his testing in April 2003. He also noted that he used a more recent version of the Gray Oral test (version # 4) than was used by White Oak in obtaining test scores reflected in the IEP (White Oak used version # 3), and because the two tests are normed on different populations, the test scores may not be compared. He therefore discounted the more recent test scores and concluded, based on his general experience regarding the progress made by children with Nelida’s profile, that Nelida’s educational needs have not changed and the educational services recommended in his written evaluation report continue to be necessary and appropriate.
23. Dr. Kemper testified that for children with Nelida’s educational needs, it would be important that a separate class be taught regarding oral expression, in addition to the teaching of oral expression being infused in the curriculum.
24. Dr. Kemper testified that he found that the amount of consulting time allocated in part A of the service delivery grid of the proposed IEP (exhibit J-1, page 20 of 26) to be insufficient. He recommended that there be at least two hours per week of consultation.
25. Dr. Kemper testified that he is familiar with READ 180 through a review of several exhibits in this dispute (S-4, S-5, S-6, S-7, P-17, P-18, P-19), through reading the READ 180 website, and observing the use of READ 180 during his visit to Brighter Beginnings program on March 11, 2005. Dr. Kemper concluded that READ 180 is designed primarily for inner city youths who do not have a neurological reading pathology but because of lack of exposure to reading and poor education, have not become good readers. He opined that READ 180 is used to help these students “catch up”.
26. Dr. Kemper testified that his visit and observation of the Brighter Beginnings program on March 11, 2005 lasted four hours, including a half hour for lunch. Dr. Kemper testified regarding his observations. He found it “disconcerting” that what a student was learning on the computerized part of the READ 180 program was not related to what was being taught in that classroom. He noted that what he observed was insufficient continuity regarding scope and sequencing; rather, he saw more isolated teaching of skills, which is not consistent with principles of language-based teaching. He further noted that in his observation of a science class, he did not see any teaching that he would consider to be language-based. Dr. Kemper testified that he reached his conclusions regarding the Brighter Beginnings program on the basis of his observations during his visit on March 11, 2005, including “sporadic” conversations with Mr. Shotland and Mr. Kimball during the visit. He stated that he did not speak with others involved with the Brighter Beginnings program.
27. Dr. Kemper testified that earlier during the Hearing day, he had read the IEP of a student at the Brighter Beginnings program, as reflected in exhibit P-2. He stated that he had also been shown a neuropsychological evaluation of this student that indicated a full-scale IQ score of 75. Dr. Kemper said that he did not know when the neuropsychological evaluation was conducted. He concluded that a child with an IQ of 75 would not be an appropriate peer for Nelida.
28. Dr. Kemper testified that, in his opinion, the Brighter Beginnings program would be appropriate for a student who has difficulty with learning and who does not do well in a content-area class. He found that Brighter Beginnings is not a language-based program in that it is missing a number of essential ingredients, including certain criteria regarding methodology, teaching techniques and student enrollment. He concluded that because the Brighter Beginnings program does not constitute a language-based program, it would not be appropriate for Nelida.
29. William Mattavi, Terry Shotland and Jeffrey Kimball : Three special education teachers from the Brighter Beginnings program – Mr. William Mattavi, Mr. Terry Shotland and Mr. Jeffrey Kimball – testified. Because of the similarities in their background and experience, their current responsibilities and their testimony regarding the Brighter Beginnings program, I summarize their testimony together, noting where their testimony differs.
30. All three teachers were employed as special education teachers of children with learning disabilities at the White Oak School in Westfield, MA, from September 1999 to June 2004. White Oak serves students in grades 4 through 12. The primary educational characteristic of students at White Oak is a significant language-based learning disability or a specific learning disability, despite average or above-average intellectual potential. Testimony of Mattavi, Shotland, Kimball; exhibit P-15.
31. All three teachers were then hired by Chicopee and have been teaching at the Brighter Beginnings program since September 2004. Additional information regarding their experience and background is provided in their resumes and licenses. Testimony of Mattavi, Shotland, Kimball; exhibits J-5, J-8, J-11.
32. This current school year (2004-2005) at Brighter Beginnings, Mr. Mattavi teaches a math course. Mr. Shotland teaches social studies, reading and language arts. Mr. Kimball teaches reading. All of the classes utilize small group instruction, with no more than five students in the classroom at a time. Testimony of Mattavi, Shotland, Kimball.
33. The teachers testified that at the Brighter Beginnings program, they use approaches and strategies similar to those that they learned and implemented in classrooms for learning disabled students at White Oak. These approaches and strategies include an emphasis on the following:
· teaching specific skills (e.g., note-taking, vocabulary, spelling and oral expression);
· use of organization tools (e.g., posting a daily agenda on the board so that students know what to expect, graphic organizers and web diagrams);
· consistent routines in the classroom, breaking down tasks into smaller steps and determining the specific parts of a task that an individual student does/does not understand;
· utilizing steps and sequencing in order to help students organize complicated tasks;
· individualizing expectations and assistance for each student, using manipulatives and models (i.e., hands-on teaching) in the classroom;
· giving multi-modal presentations (e.g., presenting material to the students orally and in writing);
· rule-based strategies (e.g., when teaching spelling);
· templates to provide a routine and to assist students to organize their thoughts;
· teaching at a slower, more methodical pace with greater opportunities for student participation; and
· spiraling back and forth between material currently being taught and material previously taught to ensure that a student understands, retains and can apply the learned material.
34. The teachers further testified that within the classroom, the following programs are utilized: verbalization/visualization elements of Orton-Gillingham, Story Grammar Marker, the Lindamood Phoneme Sequencing (LiPS) Program, and the READ 180 program. They explained that they teach oral expression as an integrated part of their classes rather than as a separate instruction block. Testimony of Mattavi, Shotland, Kimball.
35. The teachers testified that within their classrooms all of the students have learning disabilities, there are no students who present any significant conduct or behavioral issues, nor are there any students with any significant emotional issues. They noted that Brighter Beginnings has access to a school adjustment counselor and psychologist in the event difficulties arise in these areas. They further explained that all students appear to have average to above-average intelligence although one student’s IQ scores are lower than average. Testimony of Mattavi, Shotland, Kimball.
36. All three teachers testified that they taught Nelida at White Oak during the 2003-2004 school year. They stated that Nelida has a similar profile to the students whom they teach this year at the Brighter Beginnings program. They opined that the Brighter Beginnings program would be able to meet all of her educational needs and that she would fit in well. Testimony of Mattavi, Shotland, Kimball.
37. Mr. Mattavi testified that Wanda Cronin (the science teacher at Brighter Beginnings) is teaching a curriculum that he developed. He explained that as with the other teachers in this program, Ms. Cronin teaches a skills-based program.
38. The three teachers testified that they (and the fourth teacher, Ms. Cronin) meet formally every Monday for 45 to 90 minutes to discuss individual students and curriculum, as well as to do problem solving.
39. Mr. Shotland and Mr. Kimball testified that they each teach a tutorial during which the READ 180 program is used. Mr. Shotland testified that the tutorial addresses reading, written language and spelling. Mr. Shotland and Mr. Kimball testified that at White Oak they had used another reading program (Let’s Read) and when hired by Chicopee and introduced to READ 180, they both were skeptical of its appropriateness. Both teachers were trained on READ 180 for two days during the summer of 2004, and both teachers utilize this program as part of the reading instruction at Brighter Beginnings. Mr. Kimball stated that he has also tried out the program as though he were a student.
40. Mr. Shotland and Mr. Kimball testified that READ 180 is a comprehensive, rule-based instructional program that addresses reading comprehension, oral fluency, phonetics, vocabulary, writing (through a separate component of the program) and independent reading. Part of the program is computer-based, with the teacher serving as facilitator, for 15 to 20 minutes during the reading tutorial. They explained that READ 180 is an instructional, rather than a remedial, program. They concluded that READ 180 and Let’s Read (the reading program that they utilized at White Oak) are similar (for example, both programs are used to teach fluency, decoding and spelling) but use different approaches. They opined that both reading programs are effective for learning disabled students, although Mr. Shotland indicated that READ 180 would not likely be effective for a student whose reading level is not at least at the 4 th grade level. Mr. Shotland added that Nelida’s reading ability is significantly above the 4 th grade level.
41. Mr. Kimball testified that the READ 180 program is more challenging than the Let’s Read program, and that in his opinion, the READ 180 program would be more appropriate for Nelida than the Let’s Read program at White Oak. Mr. Shotland and Mr. Kimball testified that based on testing of their students during the school year, all of the students except one are making significant reading progress. Mr. Kimball added that it is uncertain why the one student is not making progress.
42. Andrea Stolar : Dr. Andrea Stolar testified that she received her doctorate degree in education (EdD) in 2001, she worked as a tutor at Curtis Blake School (which is similar to White Oak School) for one year, she taught at the high school level in Springfield for eight years and she has been in her current position with Chicopee as Supervisor of Special Education for seven years. She explained that in her current position, she has been involved with the Brighter Beginnings program. See also exhibit S-2 (affidavit of Stolar).
43. Dr. Stolar testified that the Brighter Beginnings program was created for the purpose of educating students who have a language learning disability. She stated that she is part of a team that developed the Brighter Beginnings program, including its classes, so that it be would be appropriate for language learning disabled students. She noted that this team selects the students and teachers for the program. She stated that she is continually meeting with the Brighter Beginnings program teachers, Sue Fino (a consultant whom Chicopee brought in to assist with the development and implementation of the program) and others to determine how to improve the program.
44. Dr. Stolar testified that she frequently observes and checks to ensure that the instruction follows a cohesive model, including continuity, consistency and scope and sequencing of instruction. She added that she works to ensure that language-based instruction is infused throughout the curriculum. She noted that she has observed the Brighter Beginnings teachers use many of the strategies utilized at White Oak; and that classes are kept small in order to minimize distractibility.
45. Dr. Stolar testified that staff concluded, after significant discussion, that for high school students, it is more effective to infuse oral expression throughout the curriculum rather than to teach it separately. She explained that she and others concluded that it is too difficult for high school students to become interested and engaged in oral expression when it is taught separately.
46. Dr. Stolar testified that she is familiar with the student at Brighter Beginnings who has a full scale IQ of 75. She indicated that she has talked with the Brighter Beginnings teachers about how well this student is performing and has reviewed the student’s IEP, including parts of the IEP that indicate that she is performing relatively close to grade level. She noted that she and the Brighter Beginnings teachers concluded that this student is appropriately placed within the Brighter Beginnings program.
47. Dr. Stolar testified that she believes that READ 180 is appropriate for language learning disabled students since it addresses areas of need, including spelling, comprehension and fluency. She also noted that READ 180 is a small component of the overall reading program (at Brighter Beginnings) that includes rule-based instruction in decoding, syllabication, Meta words, comprehension, oral reading and phonemic awareness.
48. Daniel Schreier : Mr. Daniel Schreier testified at the Hearing. In addition, portions of the transcript of his testimony from the previous BSEA Hearing were entered into the evidentiary record of the present dispute.11 Mr. Schreier testified that for the past two and one-half years, he has been the Director of Special Education for Chicopee. Previously, he worked for the state Department of Education in Program Quality Assurance. He holds a masters degree in student personnel administration and a law degree (JD).
49. Mr. Schreier testified that he has done a significant amount of research and review regarding reading programs. He stated that READ 180 is an engaging, interactive and motivating reading program that provides continuing feedback on how a student is performing with his or her spelling, decoding phonemic awareness and comprehension. He explained that the program is instructional in that it includes what would normally be taught within an English language course. He noted that research indicates that students with specific learning disabilities have made progress using this program.
50. Mr. Schreier testified that READ 180 identifies material for each student to read that is at that particular student’s reading level, allowing continuing mastery to occur through the process of reading. He noted that READ 180 is a remedial program in that it targets the needs of the struggling reader. He also noted that with an older reader (for example, a high school student), it becomes quite important to find a reading program that is motivating and not demeaning in order to engage the student sufficiently. He explained that this is a strength of READ 180.
51. Mr. Schreier testified that READ 180 would not be appropriate for a student whose reading ability is so low that he or she has not mastered any of the concepts or underpinnings of reading – for example, a student who is struggling with the ability to understand a phoneme (such as the “k” sound in the word “cat”). He noted that Nelida’s reading level is not so low as to make READ 180 inappropriate for her.12
52. Judith Souweine : Dr. Judith Souweine testified, and her resume reflects, that she worked for several years as a special education teacher prior to beginning her practice as a psychologist and neuropsychologist in 1984. She received her EdD in 1977. She explained, and her resume reflects, that since 1986 she has been a psychologist at the Children’s Clinic in Northampton, MA. She noted that during the past 25 years, she has observed approximately 100 programs for students with language-based learning disabilities. She added that as a psychologist and neuropsychologist, she is regularly asked to consult both to school districts and to parents regarding students with language-based learning disabilities. She has also taught college-level courses regarding language-based learning disabilities. Exhibit J-3 (resume).
53. Dr. Souweine testified that prior to the previous BSEA Hearing between these parties, she reviewed all prior evaluations and school records, including IEPs, and observed Nelida at the White Oak School on October 31, 2003. She explained that in preparation for the present hearing, she reviewed all of the joint exhibits (J-1 through J-41), the progress reports from White Oak School, an initial testing report administered in June 2004, and all of the Parents’ exhibits (P-1 through P-16). She noted that she has never evaluated Nelida.
54. Dr. Souweine testified that Nelida’s particular special education needs, as reflected within the evaluations, are weaknesses primarily in the language area formulating oral and written expression, with some needs in reading decoding, and additional difficulties with math computation and concepts. She noted that Nelida’s deficits are moderate, not severe.
55. Dr. Souweine testified (and her observation report reflects) that on November 10, 2004, she spent the day at the Brighter Beginnings program, observing all of the special education classes to which Nelida would have been assigned (had she attended this program pursuant to the current IEP) and spoke with staff, including Mr. Kimball, Dr. Stolar and Mr. Schreier, as well as Susan Fino (the consultant to the program). She stated that her impressions of Brighter Beginnings were very positive. Exhibit J-2 (Dr. Souweine’s observation report).
56. Dr. Souweine testified that in order for a program to be successful with students with a language-based learning disability, a program needs to be well-organized and paced in a way that ensures that the students have a number of different opportunities to understand and learn the same material. She explained, in general, that for students with core deficits with language learning disabilities, the Brighter Beginnings program, as designed and implemented, was particularly strong and included all of the elements she expect to see in a program for these students.
57. Dr. Souweine’s testimony and observation report indicated that the curriculum approach is individualized, with small class sizes of 4 or 5 students in each class. She observed a significant amount of remedial instruction in all core academic areas (including the use of READ 180 and the Lindamood Bell program). She noted that the students were well invested in their academic work, with instructional materials that the students found engaging (particularly, READ 180). She testified that she found the teaching materials to be appropriate for learning disabled students and the staff to be well versed in the students’ learning deficits. She concluded that the program was organized and well thought-out for purposes of meeting the needs of students with learning disabilities. Exhibit J-2 (Dr. Souweine’s observation report).
58. Dr. Souweine testified, more specifically, that during her visit to the program, she observed that the teachers were proficient at providing experiences and materials that allowed the students to learn using a variety of formats (including a significant amount of multimodal presentations) in a variety of contexts (for example, orally, on the board and in homework). She noted that the teachers used techniques (for example, cuing, opportunities for students to ask questions and reviewing) to ensure that that the students successfully learned the material presented so that they could do the work independently, and other techniques typical of a program for learning disabled children (including, for example, templates and organizational tools, review of previous materials and connecting previously learned material with currently taught material).
59. Dr. Souweine testified that there was continuity of teaching (that is, using the same methodology, skill content and approach) from one class to another throughout the day — for example, each class was observed to include techniques of modeling, cueing and reviewing. She noted that continuity is enhanced through the program’s consultant (Ms. Fino) who works with all of the teachers, providing them feedback.
60. Dr. Souweine testified that three of the four teachers in the program have a significant amount of experience working with learning disabled students, while the 4 th teacher (Ms. Cronin) has less experience. She noted that Ms. Fino (the program consultant) has been meeting and working individually with Ms. Cronin to increase her abilities in this area. She also noted that Ms. Cronin teaches a subject (science) for which it is not as important that the teacher be highly qualified regarding the needs of learning disabled students. Dr. Souweine concluded that with Ms. Fino’s assistance to Ms. Cronin, all four of the teachers are sufficiently qualified and experienced to teach learning disabled students at the Brighter Beginnings program.
61. Dr. Souweine testified that the teachers were working together as a team and there was an opportunity (built into the schedule) for staff to meet together on a regular basis for planning and coordination.
62. Dr. Souweine testified with respect to the READ 180 program that is used at Brighter Beginnings. She noted that she has not been trained on this program but has observed it and learned about it during both of her visits to the Brighter Beginnings program.
63. Dr. Souweine testified that READ 180 is a reading instructional program that begins with an assessment of the student and then provides the student with a variety of reading material at his/her level with accompanying word study materials on the computer, advancing a student sequentially as the student learns skills. She explained that READ 180 includes oral reading, silent reading, reading comprehension, phonological awareness and spelling all in one program. She also noted how engaged, invested and enthusiastic the students were when she observed them participating in the reading instruction at the Brighter Beginnings program, something that is difficult to achieve with high school students learning the “tedious work of remediating spelling and reading comprehension”. She concluded in her observation report that READ 180 provides an effective remedial approach for learning disabled students. Exhibit J-2.
64. Dr. Souweine testified that READ 180 is not a rule-based program but explained that adding a rule-based program is something that is done when a student is not able to gain the information in a more intuitive or more natural way, but it is not recommended that a rule-based program be used when it is not needed since it is an additional layer. She opined that methods other than a rule-based reading program can lead to quicker generalization and acquisition of reading skills. She explained that methods using rapid word recognition techniques can be very effective in improving decoding skills and fluency. She noted and referenced a significant amount of literature that supports the use of rapid word recognition techniques and believes a significant advantage of the READ 180 program is that these techniques are embedded within it.
65. Dr. Souweine concluded that she has no doubts regarding the appropriateness of READ 180 for Nelida, and believes READ 180 to be an appropriate and strong part of the language reading component of the Brighter Beginnings program.
66. Dr. Souweine testified that the Brighter Beginnings program allows for the opportunity for the special education students in the program to participate in regular education activities (for example, after school activities and lunch) and regular education electives and/or core academic courses (when able to do so) in the Chicopee High School. She noted the importance of these opportunities so that the program would be the least restrictive appropriate to meet a student’s special education needs.
67. Dr. Souweine testified that her “impression” (from reviewing IEPs) was that all of the students currently in the Brighter Beginnings program have average intellectual ability and have learning disabilities that manifest themselves in reading, writing and/or math. She did not find any primary emotional or behavior disorders with these children, nor did she observe any of these disorders when she visited the program. She further noted that students in the Brighter Beginnings program may have social, emotional and/or behavioral issues as these normally would occur as a secondary disability with students at this age with learning disabilities – that is, it is not an entirely homogeneous population nor would one expect it to be in a learning disability program — but that there are no areas of concern that would be disruptive to the program. She further noted that there is some difference in ages and grade levels of the students in Brighter Beginnings, but because of the very small size of the classes at the program, the instruction can be easily individualized, particularly in the core academic areas of language arts and math.
68. Dr. Souweine concluded, after reviewing Chicopee’s proposed IEP for the current school year, that the proposed services within the IEP would provide Nelida with an appropriate and comprehensive program that would address each of her particular special education needs. She further opined that these proposed services and program would likely result in “substantial” progress regarding her special education needs. By “substantial” progress, she stated that Nelida would likely acquire the skills needed to be successful in high school. She explained that Nelida would likely be able to be mainstreamed into regular education classes at the Chicopee High School as her skill level increases.
69. Dr. Souweine testified that only in one area did she have any concerns regarding the appropriateness for Nelida of the program that she observed at Brighter Beginnings. She explained it is possible that the science class that she observed at Brighter Beginnings would not be appropriate for Nelida with respect to the content of and skills taught, given the science classes that Nelida has already taken at White Oak.
70. Dr. Souweine testified that she has reviewed the recommendation section of the evaluation conducted by Dr. Kemper (exhibit J-40, page 12) and concluded that (1) the Brighter Beginnings program is substantially separate because all academic classes are taught separately in small classes of special needs students by special education teachers; (2) the program is language intensive as there is a great deal of attention given to the way information is delivered linguistically, together with remedial strategies and methodologies that ensure that students understand and are able to manipulate the material taught; and (3) using a variety of approaches and modalities (including multi-sensory presentation of information) the program provides direct remedial instruction (for example, the language arts class uses templates and organizational tools, the math class uses multi-sensory approaches, the reading class uses READ 180, Lindamood Bell, repeated reading methods and oral reading methods, and the science class uses a multi-sensory game task to teach science vocabulary).
71. Dr. Souweine further testified with respect to Dr. Kemper’s recommendations that she observed in Brighter Beginnings that (1) the student:teacher ratio is better than the 8:1 ratio recommended by Dr. Kemper; (2) teaching is performed in a systematic manner (that is, it is provided in an appropriate sequence and paced in a way that students can gain information and gain mastery); (3) the teachers provide review of previously learned material and overtly connect previously learned information and new information in a variety of ways; (4) the program teaches skills in a variety of contexts in order to promote generalization (that is, the same skills are used in different classes so that the information is generalized from one class to another); and (5) all of the teachers are adequately trained to provide the above-described instruction to learning disabled students. She further noted that the program utilizes an individual tutorial for each student for language arts.
72. Dr. Souweine testified that, in her opinion, the Brighter Beginnings program is in substantial conformance with Dr. Kemper’s recommendations as described above. She explained that the only significant differences are where Dr. Kemper makes additional, specific recommendations (pages 13 to 17 of his report), the Brighter Beginnings program utilizes, in certain instances, different teaching methodologies which Dr. Souweine believes to be appropriate.
73. READ 180 : The record includes a number of articles and other materials regarding READ 180. These include the following. Exhibit S-3 describes how READ 180 correlates to Massachusetts English Language Arts. Exhibit S-4 provides a course description of READ 180. Exhibit S-5 is a study of the results of READ 180 being used with special education students in Iowa from 2000-2002. Exhibit S-6 is an excerpt from a book by Sally Shaywitz, MD, which makes reference to READ 180 as an appropriate reading program for students with dyslexia. Exhibit S-7 is material prepared by the makers of READ 180 relative to READ 180 in general, as well as its appropriateness with students who have special education needs. Exhibit P-17 is materials developed by the maker of READ 180 describing the research, testing and development of the program. Exhibit P-18 is materials developed by the maker of READ 180 describing, in detail, the various components of the program. Exhibit P-19 is a summary of efficacy studies using READ 180 dated January 2002 and prepared by Policy Studies Associates.
Findings and Conclusions
Nelida is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act13 and the state special education statute.14 As such, Nelida is entitled to a free appropriate public education (FAPE).15 Neither her eligibility status nor her entitlement to FAPE is in dispute.
In general, FAPE is intended “to open the door of public education to handicapped children”16 rather than to require the “best” educational services for a student.17 More specifically under state and federal special education law, FAPE requires that a student’s individualized education program (IEP) be tailored to address the student’s unique needs in a way reasonably calculated to enable the student to make meaningful and effective educational progress in the least restrictive environment.18 The question of whether the student’s educational progress is meaningful or effective is gauged in relation to the potential of the particular student.19
The initial issue presented is whether the programming and specialized services embodied in the Chicopee’s proposed IEP for Nelida for the 2004-2005 school year are consistent with this legal standard . Chicopee has the burden of proof with respect to this issue.20
A. Recommended educational services for Nelida .
I note, at the outset, that the BSEA Hearing Officer in her Decision from the previous Hearing with these same parties reached the following conclusion regarding the recommended educational services and placement for Nelida for her 9 th grade year (the 2003-2004 school year):
The only comprehensive set of recommendations available to the Team for this Student’s 9th grade special education program are found in the evaluation report of Dr. Kemper. His findings were consistent with the findings of the school psychologist, and were not seriously challenged by other Team members. (P-4, S-5) He recommended that [Nelida] be placed in a substantially separate, language based, multi-sensory program geared to meeting the learning needs of students with specific language learning disabilities, including dyslexia. He wrote that [Nelida] needed small class sizes, of no more than eight students, with direct and consistent instruction by teachers trained to remediate language learning disabilities. Dr. Kemper also found that [Nelida] required a daily tutorial that focused on instruction in a rule based, systematic reading program. (See ¶ 7) There are no contrary or alternate recommendations in the record.21
With the exception of the reference to the rule-based reading program (which will be addressed separately below in the discussion regarding READ 180), I find this statement of the previous BSEA Hearing Officer to be consistent with the evidence in the instant dispute relevant to what services and placement are recommended for Nelida’s 10 th grade IEP (the 2004-2005 school year). Therefore, the present dispute, as was the previous dispute, will be resolved on the basis of whether Chicopee’s IEP proposes services and placement that satisfy these recommendations.
B. Credibility of the witnesses .
I begin with a consideration of the credibility and persuasiveness of Dr. Kemper’s expert testimony, in comparison with the expert testimony of Dr. Souweine – the two learning disability experts in this proceeding.
On the basis of Dr. Kemper’s testimony, evaluation report and resume, I conclude that he has substantial expertise regarding the educational needs of students who are diagnosed with a language-based or specific learning disability, and how those educational needs should be addressed in order that the student will likely make effective and meaningful educational progress. Also, of all the expert witnesses, Dr. Kemper was the only person who has evaluated Nelida although the relevance of this consideration is lessened somewhat by the fact that Dr. Kemper’s evaluation occurred April 22, 2003, which is more than two years prior to his testimony. I found Dr. Kemper to be a very intelligent, articulate and gracious witness.
Notwithstanding his expertise, in combination with his knowledge of Nelida, I found that Dr. Kemper’s testimony raised concerns relative to his credibility.
Perhaps most troublesome was Dr. Kemper’s diagnosis of Nelida as having dyslexia. This diagnosis does not appear in Dr. Kemper’s evaluation report (exhibit J-40). Dr. Kemper has not evaluated Nelida since April 22, 2003 when he conducted his evaluation of Nelida.
Dr. Kemper testified that a diagnosis of dyslexia was justified subsequent to his evaluation on the basis of his later “suspicion” that Chicopee administered a test in an inappropriate manner, thereby possibly leading to a greater practice effect, thereby likely resulting in an inflated score when Dr. Kemper administered this same test at a later time. With all due respect to Dr. Kemper, I suggest that he has made a diagnosis important to Nelida’s educational without sufficient credible basis.
Dr. Kemper does not know whether Chicopee in fact administered the test improperly (he has only a “suspicion”), nor does he know with any certainty what the impact, if any, might be on his own testing if in fact the test was administered inappropriately by Chicopee. At most, Dr. Kemper may call into question the validity of the scores that he obtained on a particular test, with the result that he may no longer be able to rely on this test in determining Nelida’s deficits and needs.
For Dr. Kemper to predict that his scores on this test would have been sufficiently lower so as to change his diagnosis of Nelida and on the basis of this projected test score, conclude she has dyslexia is, I suggest, speculative. Yet, Dr. Kemper testified with apparent certainty as to Nelida’s having dyslexia. Dr. Kemper’s diagnosis of dyslexia is not supported by any other part of the record. I find his diagnosis to be not credible.
Second, Dr. Kemper testified that Nelida’s special education needs are no different on May 6, 2005 when he testified in the instant dispute than on April 22, 2003 when he evaluated her. The basis for this conclusion was his “rule of thumb” that after one year of appropriate instruction, one sees qualitative but not quantitative changes in a student with a language-based learning disability, and by the end of the second year, one sees small quantitative changes. It is not disputed that Nelida has a language-based learning disability, and is now in her second year of receiving appropriate special education services at White Oak School.
On cross-examination, Dr. Kemper was shown test scores (apparently for the first time) reflected in Nelida’s current IEP. The test scores were obtained from tests (several of which are the same as those administered by Dr. Kemper in April 2003) administered by White Oak in June 2004, which would have been at or near the end of her first year there (her 9 th grade). A comparison of the test scores indicates that Nelida may have made significant growth in her language skills. For example, the scores from the Gray Oral Reading Tests given by Dr. Kemper and White Oak reflect an improvement from 5.2 grade equivalent to 9.2 grade equivalent in comprehension. Scores from the Slosson Oral Reading Test given by Dr. Kemper and White Oak reflect an improvement from 5.7 grade equivalent to 7.5 grade equivalent.
In his testimony, Dr. Kemper correctly pointed out the difficulty of relying on grade equivalent scores, and he further noted correctly that White Oak used an earlier version (and normed on a different population) than his version of the Gray Oral Reading Test. Instead of factoring these test scores into his understanding of Nelida’s current educational deficits and needs (or even acknowledging the possibility of their relevance), he preferred to rely solely on his (above-stated) “rule of thumb” to support his conclusion that Nelida’s educational deficits and needs had remained unchanged over the course of two years. What was concerning was Dr. Kemper’s apparent intent to disregard completely the relevance of the White Oak test scores, thereby allowing him to conclude that her learning needs had not changed.
Dr. Souweine has significant experience and expertise regarding students with a language-based learning disability.22 She also has the advantage of consulting both to school districts and parents. Dr. Souweine has the disadvantage (as compared to Dr. Kemper) of not having evaluated Nelida, but has the advantage of having reviewed more recent test scores from June 2004 (as explained above, Dr. Kemper did not take into consideration these more recent test scores) and of having observed Nelida at the White Oak School on October 31, 2003 (Dr. Kemper has not observed Nelida in an academic setting).
I also found Dr. Souweine to have a more detailed and more complete understanding of the Brighter Beginnings program than Dr. Kemper. Her observation was for a longer period of time and (as compared to Dr. Kemper’s sporadic discussions with two teachers), Dr. Souweine had substantive discussions with Mr. Kimball (a teacher), Dr. Stolar (supervisor of special education at Chicopee), Susan Fino (the consultant to the program) and Mr. Schreier (director of special education for Chicopee) regarding the Brighter Beginnings program. I found Dr. Souweine to be an intelligent, thoughtful and careful witness with sufficient understanding of Nelida. I fully credit her testimony.
C. The parties’ disagreements .
There is relatively little significant difference between the two competing learning disability experts (Dr. Kemper and Dr. Souweine) as to what kind of a program Nelida needs, including the various ingredients of that program. Both experts recommend a substantially separate, language-based program with qualified teachers, small class sizes to ensure individualized instruction and an appropriate grouping of student who have a learning disability, average to above-average cognitive abilities, and no significant emotional or behavioral deficits.23
There is virtually no dispute that the Brighter Beginnings program has qualified teachers who teach all academic courses in small classes (no more than five students).
The principal disagreements between the parties are as follows: (1) whether the Brighter Beginnings program is, in fact, a language-based, substantially-separate program, (2) whether READ 180 is an appropriate program for Nelida, (3) whether there is an appropriate grouping of students, (4) whether oral expression must be taught as a separate class, and (5) whether there is sufficient consultation provided to the program. Each of these disagreements will be addressed separately below.24
D. Whether the Brighter Beginnings program is a substantially-separate, language-based program .
Parents argue that the instruction is not provided within a substantially-separate learning environment. However, the undisputed facts are that all of the students with whom Nelida would be placed at Brighter Beginnings are learning disabled, and that all of the academic courses are taught by special education teachers. Notwithstanding Parents’ arguments to the contrary, the substantially-separate nature of the Brighter Beginnings program does not change when one or more students in the program take some of their courses with mainstream students in the high school – that is, outside of the Brighter Beginnings program. Summary of the Evidence, pars. # 35, 43, 67.
I now turn to the more substantive dispute as to whether the instruction is language-based.
The learning disability experts (Dr. Kemper and Dr. Souweine) do not disagree regarding the following basic ingredients of a language-based program: (1) teaching is performed in a systematic manner (that is, it is provided in an appropriate sequence and paced in a way that students can gain information and gain mastery); (2) presentation of information is done so that it stimulates all sensory modalities; (3) teachers provide review of previously learned material and overtly connect previously learned information and new information in a variety of ways; (4) the program consistently teaches skills in a variety of contexts in order to promote generalization (that is, the same skills are used in different classes so that the information is generalized from one class to another); and (5) there is sufficiently individualized instruction with additional remediation in core academic areas. The principal dispute in this case is whether the Brighter Beginnings program includes these ingredients.25
The testimony of the three teachers (Mattavi, Shotland and Kimball) provided a detailed description of what occurs within their classrooms on a day-to-day and week-to-week basis. Their testimony was supported by the testimony of the supervisor of the program (Dr. Stolar) as well as the testimony of Dr. Souweine based on her observations and discussions with staff, including a discussion with the consultant to the program (Ms. Fino). It is apparent that the Chicopee witnesses have a comprehensive picture of what is occurring within the program. I have no reason to doubt the accuracy or completeness of their testimony regarding what is being taught (and more importantly, how it is being taught) within the Brighter Beginnings program.
This testimony made clear that each of the above-stated five ingredients of a language-based program are present within the classes taught by Mr. Mattavi, Mr. Shotland and Mr. Kimball. Summary of the Evidence, pars. # 33, 34, 37, 43, 44, 57, 58, 59, 70, 71, 72.
What is also noteworthy was the ability of the three teachers (Mattavi, Shotland and Kimball) to comment on the appropriateness of this language-based program for Nelida specifically. All three have significant experience teaching learning disabled students (all three taught at White Oak, in a language-based learning environment, for five years before being employed by Chicopee to teach learning disabled students). All three teachers actually taught Nelida at White Oak during the 2003-2004 school year, which is the year that the previous Hearing Officer determined White Oak to be an appropriate placement for Nelida. And, all three opined that the language-based program at Brighter Beginnings would appropriately address all of her special education needs. I fully credit their testimony. Summary of the Evidence, pars. # 30, 31, 36, 60.
Dr. Kemper disagreed that Brighter Beginnings is language-based. He found it “disconcerting” that what a student was learning on the computerized READ 180 program was not related to what was being taught in that classroom. He noted that what he observed in the teaching was insufficient continuity regarding scope and sequencing; rather, he saw more isolated teaching of skills, which is not consistent with principles of language-based teaching. He further noted that in his observation of a science class, he did not see any teaching that he would consider to be language-based. Summary of the Evidence, pars. # 26, 28.
Dr. Kemper’s conclusions as to what is (and is not) occurring within the Brighter Beginnings program were based on a 3½ hour observation of the classrooms on March 11, 2005, including sporadic conversation with two of the teachers and no discussions with anyone else connected to the program. As I find the testimony of the Chicopee witnesses (in particular, the three teachers) to be consistent and credible, I conclude that where Dr. Kemper has drawn factual conclusions regarding what is actually occurring within the classrooms at this program and where those factual conclusions are at odds with the testimony of the three teachers (and where the teachers’ testimony is consistent with the testimony of Dr. Stolar and Dr. Souweine), then Dr. Kemper’s factual conclusions are not as reliable and not as persuasive as those of the Chicopee witnesses.
I note, more specifically, that Dr. Kemper’s particular concerns (from his observation) regarding scope and sequencing, and consistency of teaching, as well as his generally-stated concern that teaching is not being done according to language-based principles were effectively rebutted by the testimony of the Chicopee witnesses. Summary of the Evidence, par. # 33, 44, 57, 58, 59.
Accordingly, I discount Dr. Kemper’s criticisms regarding the classes taught by Mr. Mattavi, Mr. Shotland and Mr. Kimball. However, I credit his observations of the science class taught by Ms. Cronin. It is not disputed that Ms. Cronin does not have the experience or expertise of the other three teachers. Clearly, this is a weakness of the Brighter Beginnings program. However, I do not view it as a fatal weakness. As Dr. Souweine credibly explained in her testimony, Ms. Cronin, who is a certified special education teacher, teaches a subject (science) for which it is not as important that the teacher be highly qualified regarding the needs of learning disabled students. Also, Ms. Fino (the program consultant) has been meeting and working individually with Ms. Cronin to increase her abilities in this area. Exhibit J-14. Summary of the Evidence, par. # 60.
For these reasons, I find that Brighter Beginnings provides language-based instruction in a substantially-separate learning environment, and that the instruction and environment are appropriate for Nelida.
E. Whether READ 180 is an appropriate program for Nelida .
Perhaps the most contentiously disputed issue is whether the READ 180 program is appropriate for Nelida. The question, at the outset, has been phrased more generally by the parties – that is, whether this particular program is effective for language learning disabled students, and there was significant testimony and documents relative to this point. Although I will address this more general question, ultimately the only relevant issue is the appropriateness of the READ 180 program for Nelida.
I note, at the outset, that this is a disagreement regarding the methodology utilized as one part of the overall program of instruction at Brighter Beginnings. A school district is generally given discretion to determine the appropriate methodology so long as the selected methodology is likely to allow the student the opportunity to receive FAPE. Chicopee need not persuade me that READ 180 is the best or even the preferred reading program for Nelida, but only that this reading program is consistent with Chicopee’s overall responsibility to provide Nelida with an education program that is tailored to address her unique needs in a way reasonably calculated to enable her to make meaningful and effective educational progress – that is, to provide her with FAPE.26
Part of the evidentiary record in the instant dispute relevant to READ 180 is taken from the previous BSEA Hearing – in particular, parts of the previous testimony of David Drake and parts of the previous testimony of Daniel Schreier. In addition, a number of documents were admitted in the instant dispute are the same as in the previous dispute. There was also live testimony in the present dispute from Dr. Kemper and Dr. Souweine regarding READ 180, both of whom testified in the previous BSEA Hearing.
The previous BSEA Hearing Officer made the following finding regarding READ 180:
The evidence in this hearing established that READ 180 is a new, exciting, engaging computer assisted tool for developing reading fluency in disadvantaged students attending large public school systems. (P-14, 15; S-3, 4, 7, 29, 27, 31; Schreier; Souweine; Drake) There is no evidence, however, that it is a targeted, rule-based, phonetic system designed to remediate individual reading disabilities.
The evidentiary record in the present dispute includes credible testimony in support of the above-quoted finding. Although there is also conflicting testimony, I have insufficient reason to depart from this finding, and therefore adopt it. In particular, I adopt this finding because I am persuaded that READ 180 is not rule-based, at least as that term is used by Dr. Kemper, Dr. Souweine and Mr. Drake. The evidence regarding the question whether READ 180 is “designed to remediate individual reading disabilities” is more complex since it appears that this may not have been the primary purpose of the program, but from the testimony of the two teachers and Dr. Souweine, discussed below, I conclude that READ 180 would likely provide remediation for Nelida’s individual reading deficits. Summary of the Evidence, pars. # 10, 11, 12, 25, 26, 63, 64, 65.
I turn now to the question of whether Chicopee may utilize the READ 180 program as part of its proposed educational services for Nelida notwithstanding the fact that it is not rule-based and that it may not have been designed with the primary purpose of remediating individual reading disabilities.
I note, at the outset, that none of the above-named witnesses (other than the teachers) who testified regarding READ 180 (that is, Mr. Drake, Mr. Schreier, Dr. Kemper and Dr. Souweine) has ever actually used this reading program, nor has any of them received formal training regarding the program. Their opinions are derived from reading literature, reviewing a demonstration compact disc and/or observing (for a brief time) it’s being utilized at Brighter Beginnings. I do not doubt their ability to assess this program generally – for example, to determine whether it is rule-based or whether it is instructional or remedial, but I consider none of these witnesses to have extensive knowledge or expertise regarding READ 180. I turn to the testimony of other witnesses to provide more specific guidance regarding its appropriateness for Nelida within the context of the Brighter Beginnings program.
There were two witnesses in the present dispute who demonstrated extensive knowledge and understanding of this reading program – they are two teachers (Mr. Shotland and Mr. Kimball) at Brighter Beginnings. Mr. Shotland and Mr. Kimball were trained on this reading program for two days in the summer of 2004. They have been implementing this program on a daily basis with learning disabled students in the Brighter Beginnings classroom during the 2004-2005 school year. Summary of the Evidence, pars. # 39, 40, 41.
I do not suggest that these teachers have the same depth of understanding as other witnesses regarding the reading needs of learning disabled students in general and how those needs should be met in general. However, the two teachers have sufficient experience and expertise to judge the usefulness and effectiveness of READ 180, in combination with the other educational techniques and programs, for the learning disabled students that they have been teaching at White Oak for five years and now at Brighter Beginnings.
Both teachers are also familiar with the educational deficits and needs of Nelida, having taught her at White Oak School during the 2003-2004 school year, and are able to have an informed opinion regarding the appropriateness of READ 180, again in the context of an overall program, for Nelida. Both teachers have the further advantage of having used another reading program at White Oak (which presumably was an appropriate reading program), and thus have a point of reference for purposes of judging the appropriateness of READ 180. Mr. Shotland and Mr. Kimball left no doubt in their testimony that they believe that READ 180 would be an appropriate and effective reading program for Nelida, when combined with the other parts of the Brighter Beginnings program. Summary of the Evidence, pars. # 36, 39, 40, 41.
I find their testimony to be persuasive.
In addition, I note that there is an underlying methodological dispute regarding READ 180. Dr. Kemper and Mr. Drake believe that an effective and appropriate language-based program requires the systematic teaching of rules in a specific order of progression. A principal concern of Dr. Kemper and Mr. Drake regarding READ 180 is that, as the formal reading program utilized at Brighter Beginnings, it is not rule-based. Summary of the Evidence, pars. # 10, 11, 12, 25, 26.
Dr. Souweine disputes this contention. She takes the position that adding a rule-based reading program is something that is done when a student is not able to gain the information in a more intuitive or more natural way, but it is not recommended that a rule-based program be used when it is not needed since it is an additional layer. She opined that methods other than a rule-based program can lead to quicker generalization and acquisition of reading skills. She explained that methods using rapid word recognition techniques can be very effective in improving decoding skills and fluency. She noted and referenced a significant amount of literature that supports the use of rapid word recognition techniques and believes a significant advantage of the READ 180 program is that these techniques are embedded within it. In particular, Dr. Souweine opined that, on the basis of her understanding of Nelida’s language deficits, READ 180 would be appropriate for her. Summary of the Evidence, pars. # 63, 64, 65.
Dr. Souweine had the advantage of considering Nelida’s most recent test scores (June 2004) that Dr. Kemper did not consider, and the advantage of having observed Nelida in an academic setting. I also note that Mr. Drake was careful to testify regarding the appropriateness of READ 180, in general, rather than its appropriateness for Nelida in particular. Summary of the Evidence, pars. # 9, 15, 53.
I conclude that Dr. Souweine’s testimony provides additional, persuasive support for the appropriateness of READ 180 as implemented within the Brighter Beginnings program for Nelida.
For these reasons, I find READ 180 to be an appropriate part of Nelida’s proposed IEP.
F. Whether there is an appropriate grouping of students .
There is no disagreement between Dr. Kemper and Dr. Souweine that an appropriate grouping of students for a language-based program for Nelida would be that all students have a learning disability, all students have average to above-average cognitive abilities, and no student has a significant emotional or behavior deficit that would likely interfere with the learning of the other students.
The testimony of Mr. Mattavi, Mr. Shotland, Mr. Kimball, Dr. Stolar and Dr. Souweine, as well as the redacted IEPs of the students in this program, support the contention that each of the students in the Brighter Beginnings program has a learning disability, and that the students otherwise reflect an appropriate grouping for a language-based program. Exhibits J-1 through J-9; Summary of the Evidence, pars. # 35, 36, 46, 67.
Parents argue to the contrary for several reasons. Parents note that there is one student in this program with an IQ of 75 and that, on the basis of Dr. Kemper’s testimony, a student with this IQ would not be an appropriate peer in the Brighter Beginnings program. Dr. Kemper reviewed the IEP of this student (exhibit P-2) as well as an evaluation indicating an IQ of 75. Dr. Kemper testified that he did not know when the IQ test was administered. Summary of the Evidence, par. # 27.
Dr. Stolar made clear in her testimony that she is familiar with this student whose IEP is exhibit P-2. Her responsibilities include review of each student prior to admission to Brighter Beginnings to determine appropriateness of placement. She explained that achievement testing indicates that he is one year (or less) behind his grade level in reading. The IEP indicates that his most significant weaknesses are in math skills, which were over a year delayed. The IEP does not reflect any significant cognitive limitations. Dr. Stolar further testified that there was an IEP Team meeting regarding this student that reviewed his placement. She has spoken to his teachers who believe that he is appropriately placed. Dr. Stolar concluded that she believes this student’s cognitive level of functioning is appropriate for this program. Summary of the Evidence, pars. # 43, 46.
I find Dr. Stolar’s testimony (together with a reading of the student’s IEP) to be more persuasive than Dr. Kemper’s conclusion that is based solely on a single IQ score from a test of unknown date.
Parents have also raised concerns that several of the IEPs of students at Brighter Beginnings reflect goals and objectives relative to emotional or behavioral needs. For example, Parents point to exhibit P-2, which includes a goal addressing social skills and objectives relative to awareness and understanding of emotional issues. However, the IEP makes no reference to any significant behavioral or emotional issues, nor do there appear to be any specialized services in the IEP to address emotional or behavioral deficits. Rather, the IEP indicates that this student is polite and respectful, and interacts appropriately with others. Exhibit P-2.
Parents also point to exhibit P-6, which includes a behavior goal, as well as a number of related objectives. This IEP reflects potential difficulties regarding occasional behavior in class. However, I note that the IEP expired 12/9/04. Exhibit P-6.
I conclude from the testimony by the Chicopee witnesses (referenced above) that none of the students, including the students reflected in exhibits P-2 and P-6, has a primary emotional or behavioral deficit, that none of these students has emotional or behavioral needs that are disruptive to the program, and that it is not unusual that leaning disabled students will develop emotional or behavioral deficits secondary to their learning deficits as a result of frustration at not being able to learn in the same way as other students.
For these reasons, I find that there is an appropriate grouping of students for a language-based program for Nelida at the Brighter Beginnings program.
G. Whether oral expression must be taught as a separate class .
The IEP calls for oral expression to be taught by a special education teacher for 50 minutes, 5 times each week. Exhibit J-1. There was testimony that this does not occur within the Brighter Beginnings program. Oral expression is taught as an integrated part of their classes rather than as a separate instruction block. Summary of the Evidence, par. # 45.
Dr. Kemper testified that for children with Nelida’s educational needs, it would be important that a separate class be taught regarding oral expression, in addition to the teaching of oral expression being infused in the curriculum. Summary of the Evidence, par. # 23.
Dr. Stolar testified that staff concluded, after significant discussion, that for high school students, it is more effective to infuse oral expression throughout the curriculum rather than to teach it separately. She explained that she and others concluded that it is too difficult for high school students to become interested and engaged in oral expression when it is taught separately. Dr. Stolar presented as a credible witness with expertise in this area. Summary of the Evidence, par. # 45.
It appears that Chicopee has carefully considered what approach is appropriate for teaching oral expression to its high school learning disabled students, and has made a decision that is reasonable likely to succeed with Nelida.
For these reasons, I find that oral expression may be taught as an integrated part of the classes, rather than as a separate instruction block, and the IEP may be modified accordingly.27
H. Whether there is sufficient consultation provided to the program .
The IEP calls for consultation services from a learning disabilities consultant for 30 minutes, once each week. Exhibit J-1 (page 20 of 26).
Dr. Kemper testified that he found this amount of consulting time allocated in part A of the service delivery grid of the proposed IEP to be insufficient. He recommended that there be at least two hours per week of consultation. Summary of the Evidence, par. # 24.
I am not persuaded for the following reasons.
The Brighter Beginnings program is fortunate to have three teachers who have significant experience teaching students with learning disabilities (Mattavi, Shotland, Kimball). These three teachers are responsible for all of the most important academic courses. The fourth teacher, Ms. Cronin, teaches a subject (science) for which it is not as important that the teacher be highly qualified regarding the needs of learning disabled students. Ms. Fino (the consultant) has been meeting and working individually with Ms. Cronin to increase her abilities in this area. Ms. Cronin is a certified special education teacher. Exhibit J-14.
The four teachers meet every Monday for 45 to 90 minutes to discuss individual students and curriculum, as well as to do problem solving. The teachers have the further support and participation of Dr. Stolar who frequently observes and checks to ensure that the instruction follows a cohesive model, including continuity, consistency and scope and sequencing of instruction, and who works to ensure that language-based instruction is infused throughout the curriculum. Summary of the Evidence, pars. # 30, 31, 38, 43, 44, 60, 61.
Within this context, I find that it is sufficient to have a half hour per week of consulting from a learning disabilities consultant (Susan Fino) for Nelida, as reflected in Chicopee’s IEP.28
I. Nelida’s and her Parents’ perspectives .
Nelida’s father (Parent) provided testimony describing why he and his wife rejected the most recently-proposed IEP. He also testified in some detail regarding Nelida’s reactions to her observation of the Brighter Beginnings program and, in particular, her concerns regarding the structure, methodology (grammar templates) and students. She expressed some anxiety to her father that she found the program so distracting that she would not be able to learn. Summary of the Evidence, pars. # 2, 3.
I do not discount this testimony. For obvious reasons, the perspective of a sixteen-year-old student may be the most important consideration with respect to how easily she might adjust to and feel comfortable in a new learning environment. However, my responsibility is to seek to ensure that the services and placement offered by Chicopee are reasonably likely to address satisfactorily Nelida’s educational needs in the least restrictive environment even though they may not fully address her educational desires.
J. Conclusion .
In the previous dispute, Parents sought an educational program consistent with the recommendations contained within Dr. Kemper’s April 2003 evaluation report – that is, a substantially separate, language based, multi-sensory program with small class sizes of no more than eight students, and direct and consistent instruction by teachers trained to remediate language learning disabilities, all geared to meeting the learning needs of students with specific language learning disabilities. Chicopee, however, then proposed an inclusion model of services, with academic courses to be provided to Nelida in mainstream 9 th grade classes with modifications to be provided by a special educator. The BSEA Hearing Officer in that dispute agreed with Parents, finding that their proposed model of services should be provided.29
Subsequent to that decision, Chicopee developed its own substantially separate program for learning disabled students – that is, the Brighter Beginnings program.
For the reasons explained throughout this Decision, I conclude that Chicopee has succeeded in developing an IEP that is generally consistent with the recommendations contained within Dr. Kemper’s evaluation report and that is tailored to address Nelida’s unique needs in a way reasonably calculated to enable her to make meaningful and effective educational progress in the least restrictive environment.
Order
I find the 2004-2005 IEP30 developed by Chicopee to be reasonably calculated to provide a free appropriate public education to Nelida in the least restrictive setting, with the following modification. Oral expression may be taught as an integrated part of the classes, rather than as a separate instruction block. The IEP may be modified accordingly.
By the Hearing Officer,
William Crane
Dated: June 8, 2005
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL
Effect of the Decision
20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must obtain such stay from the court having jurisdiction over the party’s appeal.
Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).
Compliance
A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appeals contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).
Rights of Appeal
Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).
Under Massachusetts General Laws, Chapter 30A, Section 14(1), appeal of a final Bureau decision to state superior court must be filed within thirty (30) days of receipt of the decision.
The federal courts have ruled that the time period for filing a judicial appeal of a Bureau decision in federal district court is also thirty (30) days of receipt of the decision, as provided in the Massachusetts Administrative Procedures Act, M.G.L. c.30A . Amann v. Town of Stow , 991 F.2d 929 (1 st Cir. 1993); Gertel v. School Committee of Brookline , 783 F. Supp. 701 (D. Mass. 1992).
Therefore, an appeal of a Bureau decision to state superior court or to federal district court must be filed within thirty (30) days of receipt of the Bureau decision by the appealing party.
Confidentiality
In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
Record of the Hearing
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.
1
The previous BSEA Hearing was between the same parties on January 29 and 30, 2004 and February 3 and 4, 2004, resulting in a decision by a BSEA Hearing Officer. In Re: Chicopee Public Schools , BSEA # 04-0093, 10 MSER 158 (April 7, 2004).
2
The transcript of this witness admitted into the record is volume IV, pages 189-191, 204–210, 219-222, 227-230, 233, 235-243, 245-253, 262, 272-276, 284 -287, and 289-302.
3
The transcript of this witness admitted into the record is volume III, pages 19-43, 64-66, 85-111, and 118-127.
4
Exhibit J-1.
5
Nelida is a pseudonym selected by the previous Hearing Officer to protect the privacy of the Student in publicly-available documents. The use of this pseudonym is continued within this Decision
6
During the Hearing, Chicopee stated that in the event Parents prevail on the first two of the above-stated three issues, it would agree that Parents should prevail regarding the third issue. Therefore, no evidence or argument was provided relative to this third issue.
7
In Re: Chicopee Public Schools , BSEA # 04-0093, 10 MSER 158 (April 7, 2004).
8
In order to reduce the time of the testimony in the instant dispute and at my suggestion, each party requested that portions of the testimony of one of its witnesses from the previous Hearing be entered into the evidentiary record of the instant dispute where that testimony continues to be relevant to Chicopee’s READ 180 program.
9
The parts of the transcript of this witness admitted into the record from the previous BSEA Hearing are volume III, pages 19-43, 64-66, 85-111, and 118-127.
10
The decision in the previous BSEA dispute considered the same evaluation report of Dr. Kemper as is being considered in the instant dispute. That decision provides a useful summary of the report. In Re: Chicopee Public Schools , BSEA # 04-0093, 10 MSER 158, 160, par. 7 (April 7, 2004).
11
The parts of the transcript of this witness admitted into the record from the previous Hearing are volume IV, pages 189-191, 204–210, 219-222, 227-230, 233, 235-243, 245-253, 262, 272-276, 284 -287, and 289-302.
12
The decision in the previous BSEA dispute provides a useful summary of Mr. Schreier’s prior testimony regarding READ 180. In Re: Chicopee Public Schools , BSEA # 04-0093, 10 MSER 158, 161, par. 12 (April 7, 2004).
13
20 USC 1400 et seq .
14
MGL c. 71B.
15
MGL c. 71B, ss. 1 (definition of FAPE), 2, 3.
16
Board of Education of Hendrick Hudson Central School District v. Rowley , 458 U.S. 176, 192, 102 S.Ct. 3034, 3043 (1982).
17
See, e.g., Lt. T.B. ex rel. N.B. v. Warwick Sch. Com., 361 F.3d 80, 83 (1st Cir. 2004) (“IDEA does not require a public school to provide what is best for a special needs child, only that it provide an IEP that is ‘reasonably calculated’ to provide an ‘appropriate’ education as defined in federal and state law.”).
18
For a more complete explanation of this standard and the legal authorities upon which it is based, see In re: Arlington , 37 IDELR 119, 8 MSER 187, 193-195 (SEA MA 2002). See also the following regulations not referenced in Arlington : 603 CMR 28.05(4)(b) (Student’s IEP must be “ designed to enable the student to progress effectively in the content areas of the general curriculum”); 603 CMR 28.02(9) (“ An eligible student shall have the right to receive special education and any related services that are necessary for the student to benefit from special education or that are necessary for the student to access the general curriculum.”); 603 CMR 28.02(18) (“ Progress effectively in the general education program shall mean to make documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to chronological age and developmental expectations, the individual educational potential of the child, and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district.”).
19
Deal v. Hamilton County Board of Education, 104 LRP 59544 (6 th Cir. 2004) (“IDEA requires an IEP to confer a ‘meaningful educational benefit’ gauged in relation to the potential of the child at issue”); In re: Arlington , 37 IDELR 119, 8 MSER 187, 194, nn. 18, 19 and 20 (SEA MA 2002) (collecting authorities).
20
The federal First Circuit Court of Appeals has explained that “the school district always bears the burden in the due process hearing of showing that its proposed IEP is adequate.” T.B. v. Warwick School Committee , 361 F.3d 80, 82 n.1 (1 st Cir. 2004) and cases cited therein. The school district bears this burden even when a change in a Student’s IEP is sought by the parents. Fuhrmann v. East Hanover Bd. of Educ., 993 F.2d 1031, 1034-1035 (3 rd Cir. 1993), cited with approval in T.B. v. Warwick School Committee , 361 F.3d 80, 82 n.1 (1 st Cir. 2004).
21
In Re: Chicopee Public Schools , BSEA # 04-0093, 10 MSER 158, 163 (April 7, 2004).
22
Parents do not dispute Dr. Souweine’s credentials and qualifications regarding students with language-based learning disabilities. See Parents’ closing written argument, page 1.
23
By comparison, in the previous BSEA Hearing, the principal dispute was what kind of educational services and program Nelida needs. In that dispute, Parents argued for essentially the same services and program as they are seeking in the current dispute. Chicopee, however, proposed an inclusion model of services, with academic courses to be provided to Nelida in mainstream 9 th grade classes with modifications to be provided by a special educator. In Re: Chicopee Public Schools , BSEA # 04-0093, 10 MSER 158, 163 (April 7, 2004).
24
There is also a possible disagreement as to whether the content of the science and math courses at Brighter Beginnings would have been appropriate for Nelida, and Dr. Souweine (in par. 69 of the Statement of Evidence) shares this concern. However, I do not view this as a substantive dispute in light of Chicopee’s apparent willingness to adjust the content of these courses, as necessary, and its ability, through a very low student:teacher ratio to individualize instruction. Testimony of Schreier, Mattavi.
25
It appears that the only substantive area of disagreement between these two experts with respect to what should be included in a language-based program is the extent to which rule-based instruction is required. Parts of the Brighter Beginnings program are rule-based – for example, rule-based reading instruction using Lindamood Bell methods and strategies relative to syllabication and suffixes – but the reading program (READ 180) is not. I address the appropriateness of READ 180 separately below.
26
Compare Deal v. Hamilton County Bd. of Educ., 392 F.3d 840, 862 (6th Cir. 2004) (“there is a point at which the difference in outcomes between two methods can be so great that provision of the lesser program could amount to denial of a FAPE”) with E.S. v. Independent School District, No. 196 , 135 F.3d 566 (8 th Cir. 1998) (“As long as a student is benefiting from her education, it is up to the educators to determine the appropriate methodology.”).
27
In their written closing argument, Parents do not argue to the contrary.
28
In their written closing argument, Parents do not argue to the contrary.
29
In Re: Chicopee Public Schools , BSEA # 04-0093, 10 MSER 158, 163 (April 7, 2004).
30
Exhibit J-1.