COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
IN RE: Revere Public Schools
BSEA# 03-0126
DECISION
This decision is rendered pursuant to M.G.L. Chapters 15, 30A and 71B; 20 U.S.C. §1400 et seq .; 29 U.S.C. §794; and the regulations promulgated under each of these statutes.
A hearing in the above-entitled matter was held on September 9, 2002 at the Massachusetts Department of Education in Malden, MA.
Those in attendance were:
Mother
Father
Jeff Morrison Director, Sylvan Learning Center
Vincent Cowhig Director of Special Education, Revere Public Schools
William McDonough Principal, Lincoln School, Revere
Elaine Moscella 1 st Grade Teacher, Lincoln School, Revere
Ellen Ferrante Special Education Teacher, Lincoln School, Revere
Mary Gallant Attorney, Revere Public Schools
Rita Steinke Court Reporter
Raymond Oliver Hearing Officer, Bureau of Special Education Appeals
The evidence consisted of Parents’ Exhibits labeled P-1 through P-2; Revere Public Schools’ Exhibits labeled S-1 through S-28; and approximately 4 hours of oral testimony. The record was left open for receipt of final exhibits and written final briefs until October 2, 2002.
HISTORY/STATEMENT OF THE CASE
Student is an 8½ year old girl currently beginning the 2 nd grade at the Lincoln School in Revere, MA. She has been a student with the Revere Public Schools (Revere) for her entire educational career.
Student began in Revere in kindergarten in September 1999. Her pediatrician requested a special education evaluation for Student in the late fall of 1999. Student received a cognitive/educational evaluation (S-22); a psychological evaluation (S-21); a speech-language evaluation (S-10); and an occupational therapy evaluation (S-16). The team convened in January 2000; determined Student to be eligible for special education; and promulgated an Individual Education Plan (IEP) proposing that Student be placed in a substantially separate special education classroom for all academic subjects, along with speech-language therapy and occupational therapy (S-6). The IEP was sent to Parents on January 26, 2000 and then re-sent on April 5, 2000 (S-5). On May 11, 2000 Mother responded by rejecting the substantially separate classroom placement but accepting the speech-language and occupational therapies. (See S-6; testimony, McDonough).
At the conclusion of Student’s kindergarten year, Revere determined that Student had not mastered the skills taught in kindergarten. Because Revere’s kindergarten was only ½ day, Mr. McDonough, the Lincoln School principal, arranged for Student to attend the 1 st grade each morning, which concentrated in reading and language arts, and also attend the kindergarten session in the afternoon for the 2000-2001 school year, which was done. (See testimony, McDonough; Mother).
In February 2001 Student was assessed by both her 1 st grade and kindergarten teachers who both found that Student had made very little progress (S-19). Also in February 2001 Revere again administered to Student the Woodcock-Johnson Achievement Test (S-12) as well as an updated speech-language evaluation (S-8) and an updated occupational therapy evaluation (S-14). The team meeting took place in February 28, 2001. Revere again proposed an IEP recommending a substantially separate/small learning group special education placement for Student for all academics along with speech-language and occupational therapies. (See S-3, 4). On April 3, 2001 Mother again accepted the therapy services but rejected the proposed placement (S-4).
Student began 1 st grade on a full time basis in September 2001. Student demonstrated difficulties in class. The team again met on October 10, 2001. Mother continued her rejection of the substantially separate/small learning group special education classroom for Student, wanting Student to remain in the regular education 1 st grade class. Revere then proposed an Amendment to Student’s IEP whereby resource room services in the areas of reading, language arts and math would be added to the IEP for 2-45 minute periods per day. Mother accepted these services on October 18, 2001. (See S-2; testimony, Mother; McDonough; Cowhig). For the remainder of the 2001-2002 school year Student received special education reading and language arts in the resource room and then reading/language arts in her regular education 1 st grade classroom. Later in the day Student received special education math in the resource room and then math in her regular
education 1 st grade classroom. Student’s special education teacher and regular education teacher coordinated the reading, language arts and math work Student received in the regular education classroom and the resource room. Daily collaboration between these 2 teachers assured lots of reinforcement of skills and modifications where necessary. (See testimony, Ferrante; Moschella.)
In February 2002 Revere conducted an updated educational evaluation (S-11); speech-language evaluation (S-7); and occupational therapy evaluation (S-13). The team met on February 13, 2002 and again recommended a substantially separate/small learning group special education placement for Student, along with speech-language therapy and occupational therapy (S-1). On April 29, 2002 Mother again accepted the therapies but rejected placement. (See S-1; testimony, Mother; McDonough; Cowhig.)
On July 8, 2002 Revere requested a hearing before the BSEA and an automatic hearing date was scheduled for July 26, 2002. Revere requested a postponement and a pre-hearing conference which took place on August 1, 2002 with Mother participating via conference phone. The parties agreed to a hearing date of September 9, 2002 and the hearing took place on that date. Student is currently attending the regular education 2 nd grade at the Lincoln School with speech-language therapy, occupational therapy and special education services from the resource room for 2-45 minute periods daily, pursuant to her last agreed upon placement (testimony, Cowhig). Student was administered placement tests in reading and math in early September 2002. (See S-26, 27; testimony, McDonough.)
ISSUE
Does Revere’s proposed IEP covering February 2002 – February 2003 address Student’s special education needs so as to provide her with a free and appropriate public education (FAPE)?
STATEMENT OF POSITIONS
Revere’s position is that its proposed IEP covering February 2002 to February 2003, which provides Student with a substantially separate/small learning group special education placement, addresses Student’s special education needs so as to provide her with FAPE. Revere contends that Student is not receiving FAPE under her current educational program.
Parents’ positon is that Student has made progress in her regular education classrooms at Lincoln School with speech-language therapy, occupational therapy, and resource room services. Parent contends that Student has received resource room help for just under a year, that she has progressed, and that she should be given more of a chance within the regular education classroom. Parent does not want Student in a substantially separate placement which she perceives as stigmatizing to Student. Parent is also providing private tutorial help for Student from Sylvan Learning Center.
PROFILE OF STUDENT
Student, 8 years, 9 months old is developmentally delayed. Student was administered the Woodcock-Johnson Psychoeducational Battery-Revised (WJ-R) in December 1999 (S-22). The WJ-R Tests of Cognitive Ability (WJ- Cognitive) measures overall intellectual functioning and specific cognitive abilities. Student was 5 years, 10 months old when the WJ-Cognitive was administered. Student’s Broad Cognitive Ability was comparable to the developmental level of an average child at 4 years, 2 months old and Student scored at the 3 rd percentile out of a possible 100. In January 2000, at age 5 years 11 months old, Student was administered a psychological evaluation by licensed psychologist Dr. Lionel Lyons (S-21). On the Wechsler Preschool and Primary Scale of Intelligence-Revised (WPPSI –R), Student received a Verbal IQ Score of 57, a Performance IQ Score of 52 and a Full Scale IQ Score of 50, placing her consistently within the developmentally delayed range of intellectual functioning. Relative to her peer group she scored within the very bottom percentile on the WPPSI with an age equivalent score of 3 years 8 months old. On the Peabody Picture Vocabulary Test-3 rd edition (PPVT-3), a measure of receptive language and general language understanding, Student scored at a 3½ year old level. On projective testing Dr. Lyons found no significant emotional indicators. (See S-21 for the complete psychological evaluation of Dr. Lyons.)
Revere has administered to Student the Woodcock-Johnson Tests of Achievement (WJ-Achievement) on 3 separate occasions: 1 st in December 1999 during Student’s initial team evaluation (S-22); 2 nd in February 2001 (S-12); and finally in February 2002 (S-11). Student received the following grade level (gl) and age level (al) scores in the following subject matter areas at the following points in time on the WJ-R Achievement Tests:
WJ-Achievement Test GL/AL in 12/99 GL/AL in 2/01 GL/AL in 2/02
Reading Tests
Letter-Word Identification K.O gl/3.5 al K.O gl/5.0 al K.8 gl/6.2 al
Passage Comprehension K.O gl/5.6 al K.O gl/5.6 al K.4 gl/5.9 al
Math Tests
Calculations K.O gl/4.11 al K.8 gl/6.0 al 1.2 gl/6.6 al
Problem Applications K.O gl/3.7 al K.2 gl/5.3 al K.8 gl/5.11 al
Speech-language therapist Loraine Bautze has also evaluated Student on 3 occasions in 12/99 (S-10); 2/01 (S-8); and 2/02 (S-7). On the most recent evaluation in 2/02 Ms. Bautze administered the Clinical Evaluation of Language Fundementals-3 rd edition (CELF-3). Student, then 8.0 years old, scored an age equivalent score of 5 years 5 months. Student’s receptive language score of 50, expressive language score 65 and total language score of 55 each place her in the 1 st percentile and each score was within the very low range of language functioning.
Student has been privately tutored at the Sylvan Learning Center (Sylvan) since May 2002. Student had attended Sylvan for 66 hours in reading and 60 hours in math in small groups of 2-3 students to 1 teacher. (See P-1; testimony Morrison.) On the California Achievement Test – 5 th edition – Form A – Level 11 administered when she began at Sylvan in May 2002 and again in September 2002, Student achieved the following grade level scores in the follow areas in math
(P-1):
Math Area 5/4/02 gl score 9/3/02 gl score
Computation 1.1 2.3
Concepts & Applications 0.9 2.2
Total Math 0.9 2.3
Based upon Sylvan reading tests administered by Sylvan in May 2002 Student was basically untestable in reading with no grade level score obtainable. Updated reading testing had not been done as of the date of this hearing but was scheduled to be done in approximately one week. (See P-1; testimony, Morrison). It should be noted that the Hearing Officer specifically requested that if such updated testing results became available within the next 10 business days that such test results be sent to the Hearing Officer and Revere’s counsel and these tests results would be included in evidence. No updated reading results have been provided.
SCHOOLS’ PROPOSED PROGRAM
Revere’s IEP proposes placing Student in a substantially separate special education classroom, called a small learning group placement, located at the Paul Revere School, another elementary school in Revere. This program is designed for 1 st , 2 nd & 3 rd grade students with cognitive needs and learning styles similar to Student. Like Student they have no behavioral or social issues. This classroom is taught by Ms. Marchand, a certified special education teacher, with 8 years of experience teaching this specific program. In addition to the teacher there are two paraprofessionals whose schedules partially overlap (i.e., there is always 1 paraprofessional in the program and for a period of several hours per day in the late morning there are 2 paraprofessionals in the class at the same time). Speech-language, occupational and physical therapies are provided on both a pull-out basis and also within the classroom, so a therapist is often also in the classroom. Language based instruction would be provided to Student at her own pace of learning with lots of repetition and reinforcement to help Student learn, retain and maintain skills. This small learning group classroom follows the same curriculum as the regular education classroom but it is modified and personalized for each student. Students are mainstreamed for music, art, physical education, recess, lunch and all school wide assemblies and activities with their appropriate grade level peers. There are currently 9 students in this program.
(See S-1; testimony, Cowhig.)
PARENTS’ PROPOSED PROGRAM
Parent proposes that Student continue in the regular education 2 nd grade classroom with 2-45 minute periods of special education services in the resource room for reading, language and math plus pull-out speech language therapy and occupational therapy. Parent believes Student has made
progress under this arrangement. Further, Parent is willing to continue to provide private Sylvan tutoring where she and Sylvan perceive Student to be making progress.
(See testimony, Mother; Morrison; P-1.)
FINDINGS AND CONCLUSIONS
It is undisputed by the Parties and confirmed by the evidence presented that Student is a child with special education needs as defined under state and federal statutes and regulations. The Parties are also in substantial agreement regarding the nature and manifestations of Student’s special education needs, which are also undisputed in the evidence presented. The fundamental issue in dispute is listed under ISSUE IN DISPUTE, above.
Based upon the four hours of oral testimony, the extensive written documentation introduced into evidence, and a review of the applicable law, I conclude that Revere’s proposed IEP covering February 2002 through February 2003 addresses Student’s special education needs so as to provide her with FAPE.
My analysis follows.
The evidence is unrebutted that Student is developmentally disabled. Both the WJ-Cognitive and WPPSI-R intelligence testing place Student within the developmentally delayed range of intellectual functioning and both testing instruments find her functioning approximately 2 years below a normal intelligence/cognitive level, at a very low percentile level, and with global, across the board deficits. (See S-21, 22.) Standardized language testing (PPVT-3 & CELF-3) place Student within the very low range of language functioning, both receptively and expressively, approximately 2 ½ years below age level, and at a very low percentile level. (See S-21, 7; see also S-8, 10.) Most recent WJ-Achievement testing (S-12) places Student’s academic levels in reading and math at approximately 2 years below age level and approximately 1 year below grade level, even though Student has taken 3 years to go through grade 1 (1 year in kindergarten; 1 year in K-1; 1 year in 1 st grade).
In support of my conclusions above, I note the summary of Dr. Lyons in his psychological evaluation (S-21):
Overall [Student] scored consistently within the Developmentally Delayed Range of Intelligence. There are no significant emotional indicators… [Student] should be identified as a child who will benefit from substantial special needs intervention. It needs to be appreciated that she has global cognitive deficits. Emphasis added.
I also note the summary of Speech-Language Pathologist Bautze in her most recent speech and language evaluation of Student (S-7):
[Student] has demonstrated some gains in response to the structured, small group speech and language remediation sessions. However, her response to the formalized language measures presented suggests that she continues to demonstrate significantly reduced language skills. These difficulties in combination with cognitve difficulties continue to impact on her ability to meet the linguistic and academic demands of the classroom … The TEAM should continue to consider recommending significant academic support for [Student] . Emphasis added.
Revere did an initial team evaluation midway through Student’s kindergarten year and has performed updated assessments yearly. Revere has consistently proposed IEPs calling for substantially separate/small learning group special education placements for all of Student’s academics for the last 3 years (S-6, 4, 1). Mother has repeatedly rejected such placements, allowing only speech-language and occupational therapies. In October 2001 (Student’s 1 st grade year) Revere proposed an Amendment to the IEP providing special education resource room support for 1 period per day in reading and 1 period per day in math which Mother accepted. (See STATEMENT/HISTORY OF THE CASE , above).
I find it highly significant that Student has demonstrated more progress in small group and 1:1 situations than in her regular education classrooms. Student had made progress in her structured, small group speech-language sessions. (See S-7; see also quote from S-7, above.) Student has made progress since beginning in her small group special education resource room placement. (See testimony, Ferrante. See also results obtained in S-11 compared to S-12.) Student has also made progress in her small group Sylvan tutoring, at least in the area of math. (See P-1; testimony, Morrison.) (See also PROFILE OF STUDENT, above.) Conversely, Student has made only minimal progress in her regular education placement and appears to often be lost during academic instruction and activities in her regular education classroom of 20 + students. (See testimony, Moschella; McDonough; Cowhig; S-17, 18, 19, 20.) Indeed, on placement testing done near the beginning of the 2002-2003 school year in the regular education 2 nd grade classroom, which reviewed work covered in 1 st grade, Student scored only a 37% in reading and 30% in math. (See S-26, 27.) Based upon the above, I conclude that Student is better able to make slow and steady progress commensurate with her abilities in structured, focused small group settings where she can receive more individualized attention, rather than in a large group regular education classroom setting.
I find Mother to be a caring, dedicated parent who helps and works with Student and is willing to access additional, outside services to assist Student to learn. I understand and am sympathetic to her position that she does not want Student stigmatized by being in a special classroom. However, based upon the documentation and testimony presented, I find that the fundamental reality is that: 1) Student is not making any real progress within her regular education classroom; 2) Student is making slow, steady progress commensurate with her abilities in her small group academic instruction and therapy periods; 3) Even with her slow, steady progress Student’s academic skills are significantly below those of her peers in her regular education classroom; 4) The gap between Student’s academic skills and those of her regular education classmates is widening; and 5) Student is unable to meaningfully understand regular classroom instruction and to effectively participate within the regular education classroom. In summary, the evidence demonstrates that with the drill, repetition and review she receives in the small group, individualized settings of the special education resource room, speech-language therapy sessions, and Sylvan tutoring, Student is able to learn new things. However, the evidence also demonstrates that Student’s generalization and carryover of skills from her small group specialized instruction to the large group regular education environment is minimal.
Based upon the totality of evidence presented, I conclude that Student’s current and last agreed upon placement does not address Student’s special education needs so as to provide her with FAPE. I conclude that Revere’s proposed IEP with its substantially separate/small learning group placement does provide Student with FAPE. (See SCHOOL’S PROPOSED PROGRAM, above.) The Student would receive individualized, small group, language based instruction in all of her academic instruction, presented to her at her level and at her own pace. Consistent repetition and reinforcement would assist Student not only to learn new skills for the moment but to learn, retain and maintain skills so that such skills can be generalized to different environments. Given that the small learning group classroom follows the same curriculum as the regular education classrooms, and given that Student would be mainstreamed with her grade level peers for all non-academic classes and activities, Student’s placement would be normalized and the stigmatization Mother fears would be minimized.
I note the universal testimony and documentation that Student is a delightful child, a social child, comes to school ready to work, works hard, takes pride in her accomplishments, and exhibits no attentional or behavioral problems. These are all very positive attributes. Frustration and poor self esteem at not being able to keep up with her classmates should be avoided at all costs so that Student continues her positive attitude and high level of motivation. At age 8 years 9 months old Student is in a critical period of child development and this valuable window of opportunity for Student to receive FAPE must be fully utilized. I conclude that Student’s best chance for meaningful progress is Revere’s proposed IEP.
ORDER
1. Revere’s proposed IEP covering February 2002-February 2003 addresses Student’s special education needs so as to provide her with a free and appropriate public education.
2. Revere shall provide an appropriate transition for Student to her new program/placement including the opportunity for Student to visit her new school and classroom; to meet her new teacher and aides; and to meet her new classmates, prior to the actual transfer.
By the Hearing Officer,
Raymond Oliver
Dated: November 6, 2002
Decision Summary
Case name : IN RE: Revere Public Schools
BSEA#: 03-0126
Date Issued : November 6, 2002
Representation of Parties : Pro Se Parents
School represented by an attorney
Issues : Does Revere’s proposed IEP covering February 2002 – February 2003 address Student’s special education needs so as to provide her with a free and appropriate public education (FAPE)?
Facts : Student is an 8½-year-old girl with developmental delays. In February 2002 Revere conducted an updated educational evaluation; speech-language evaluation; and occupational therapy evaluation. Testing instruments find her functioning approximately 2 years below a normal intelligence/cognitive level, at a very low percentile level, and with global, across the board deficits. The team met on February 13, 2002 and again recommended a substantially separate/small learning group special education placement for Student, along with speech-language therapy and occupational therapy. Mother accepted the therapies but rejected placement. Student is currently attending the regular education 2 nd grade at the Lincoln School with speech-language therapy, occupational therapy and special education services from the resource room for 2-45 minute periods daily, pursuant to her last agreed upon placement. Parent contends that Student has received resource room help for just under a year, that she has progressed, and that she should be given more of a chance within the regular education classroom. Parent does not want Student in a substantially separate placement that she perceives as stigmatizing to Student. Parent is also providing private tutorial help for Student from Sylvan Learning Center.
Holding : Student’s current and last agreed upon placement does not address Student’s special education needs so as to provide her with FAPE. Student is better able to make slow and steady progress commensurate with her abilities in structured, focused small group settings where she can receive more individualized attention, rather than in a large group regular education classroom setting. Revere’s proposed IEP with its substantially separate/small learning group placement does provide Student with FAPE.
Prevailing Party : School
Hearing Officer : Raymond Oliver