COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
Student v. Pembroke Public Schools
BSEA #03-2627
DECISION
This decision is issued pursuant to M.G.L. c. 71B and 30A, 20 U.S.C. § 1401 et seq ., 29 U.S.C. § 794, and the regulations promulgated under said statutes.
A hearing was held on June 6 and June 19, 2003 at the Bureau of Special Education Appeals, before Catherine M. Putney-Yaceshyn, Hearing Officer.
PROCEDURAL HISTORY
Parent requested a Hearing on December 17, 2002. A Hearing was scheduled for January 7, 2003. The School requested a Postponement of the Hearing on December 20, 2002, and the BSEA Granted the Postponement and scheduled a Pre-Hearing Conference on January 23, 2003. The School requested a postponement of the Pre-Hearing Conference on January 17, 2003 and the BSEA Granted the request and rescheduled the Pre-Hearing Conference on March 3, 2003. On February 5, 2003 the Parents requested a Postponement of the Pre-Hearing Conference which was Granted. The Pre-Hearing Conference was rescheduled until March 31, 2003. On March 25, 2003, the Parties requested that the Pre-Hearing Conference proceed as a conference call. On April 2, 2003 the BSEA issued an Order for a conference call on April 4, 2003. The Parties participated in a conference call on April 4, 2003. On April 7, 2003 the BSEA issued an Order scheduling a Hearing on May 19 and 23, 2003. On May 6, 2003, the Parents requested a Postponement of the Hearing to enable Parents to observe the School’s proposed program. On May 9, 2003 the School objected to Parents’ request to Postpone the Hearing. There was a telephone conference call on May 13, 2003. On May 15, 2003 the BSEA issued an Order scheduling the Hearing for June 6 and 19, 2003. For administrative reasons the matter was reassigned to Hearing Officer, Catherine Putney-Yaceshyn. The Hearing proceeded on June 6 and 19, 2003 at the Bureau of Special Education Appeals, Malden, Massachusetts. After the close of testimony, the parties agreed to submit written closing arguments by July 9, 2003. Both parties submitted their closing arguments on July 9, 2003 and the record closed.
Those present for all or part of the Hearing were:
Student’s Mother
Student’s Father
Jennifer Hornsby Teacher, Carroll School
Mary Beth Fletcher Language Department Head Lower, Carroll School
Gretchen Timmel Parent’s evaluator
Mary Ellen Frechette Carroll School
Kathleen Yaeger Legal intern, BSEA
Elizabeth Parker Director of Admission, Carroll School
Sandra F. Lovett Grade 4 teacher, Pembroke Public Schools
Jonathan R. Werner Attorney for Student
Wendy E. Millette Attorney for Student
Gail Nunes Special education teacher, Pembroke Public Schools
Lucille M. Gaudreau Grade 3 teacher, Pembroke Public Schools
Heather Carbone Resource room teacher, Pembroke Public Schools
Kim Stoloski School psychologist, Pembroke Public Schools
Judith F. Bell Administrator of Special Education, Pembroke Public Schools
Ellen Stockdale Resource room teacher, Pembroke Public Schools
Deborah Anderson Attorney for Pembroke Public Schools
Catherine M. Putney-Yaceshyn Hearing Officer
The official record of this hearing consists of documents submitted by the Parents marked 1 through 13 and documents submitted by the School marked 1 through 23 and approximately 12 hours of recorded oral testimony.
ISSUES
1. Whether the IEP proposed for the 2002-2003 school year was reasonably calculated to provide the Student with a free appropriate education in the least restrictive environment.
2. If not, whether the Parents are entitled to reimbursement for their unilateral placement of Student at the Carroll School.
3. Whether the IEP proposed for the 2003-2004 school year is reasonably calculated to provide the Student with a free appropriate education in the least restrictive environment.
4. Whether the Carroll School is the appropriate placement for Student for the 2003-2004 school year.
SUMMARY OF THE EVIDENCE
1. The student (hereafter, “Student”) is a ten-year-old fourth grade student residing in Pembroke, Massachusetts, within the Pembroke Public School District (hereafter, “Pembroke”). She has been diagnosed with a specific language based reading disability [dyslexia] that impacts her performance in the general education classroom. She demonstrates a particular weakness on verbal short-term memory tasks, has difficulty with foresight and planning, weaker expressive than receptive language skills and significant difficulties with tasks that require phonologically coding information. She has strengths in processing of auditory information when accompanied by a visual stimulus, correct use of grammar, and the ability to identify relations of auditorily presented items. (S-7) Her verbal IQ is 112, her performance IQ is 112 and her full scale IQ is 113. (P-1) She attended the Pembroke Public Schools until September 2002 when the Parents unilaterally placed her at the Carroll School. (Mother)
2. Edward J. McSharry, M.S., CCC/SLP, administered a speech/language evaluation1 to Student on April 10, 2000 when Student was 7 years 2 months old and in the first grade. Student scored within the average range on all measures. Mr. McSharry noted that Student “appeared tense throughout the evaluation as evidenced by excessive movements such as shifting of feet, rubbing hands on pant legs and bouncing up and down.” He found no areas of specific disability, but noted a weakness in short-term recall which he stated will affect her academic performance. He recommended modifications to assist Student in the classroom. (S-9)
3. Mother testified that she had concerns regarding Student’s academics since Student was in pre-school. Student received Title I services in math and reading during the first grade. Mother testified that she volunteered as a parent aide one day per week in Student’s first grade class and noticed Student frantically shook while sitting at her desk. She testified to speaking to Student’s teacher, Ms. Morley who agreed that Student’s anxiety level was high2 . Mother testified that Ms. Morley believed that “something was blocking her learning.” She suggested that Student’s vision be checked.3 By January or February 2000 Ms. Morley suggested that Pembroke formally assess Student. (Mother)
4. Cynthia Smith, Reading Specialist, conducted a reading assessment4 of Student on May 3, 2000, when Student was 7.3 years old and in grade 1.8. Ms. Smith concluded that Student’s overall reading performance is average and her performance is average in basic reading skills and reading comprehension. She concluded Student would find the reading demands of age-level tasks difficult. She noted that Student would find age-level tasks requiring basic reading skills manageable and age level tasks requiring reading comprehension very difficult. She concluded that Student’s phonological awareness is low and her oral comprehension is low average when compared to others at her age level. She noted that the phonological awareness demands of age-level tasks will be very difficult for Student and the oral comprehension demands of age-level tasks will be difficult for her. She did not note any “significant aptitude/achievement discrepancies” among Student’s predicted and actual reading scores. (S-8)
5. Mother testified that the team convened in May 2000 and concluded that Student did not have a disability. She testified that Pembroke Public Schools staff told her Student was very bright and eager to learn and was progressing at an average rate. The Team believed that with Title I services and summer title I services Student would probably catch up. The Parents accepted the finding of no eligibility. (Mother) Mother testified that Student received mostly N’s, denoting “needs improvement” on her report card5 and described Student’s intense negative reaction to her grades6 . Mother testified that Student received Title I services during the summer before second grade. She had hoped it would give Student more confidence with her reading skills but it frustrated her more. Student would come home and say it was just a bunch of sounds and it made no sense to her. She would anxiously ask her Mother why she still was not “getting it.” (Mother)
6. Student continued to demonstrate anxiety regarding school during the second grade. She began experiencing toiletting difficulty and bed wetting which her doctor attributed to a combination of diet, stress, and hurriedness. Mother testified that she volunteered as a Parent aide to Mrs. Healy, Student’s second grade teacher, once per week. She testified that she told Mrs. Healey about her concerns regarding Student’s anxiety and Mrs. Healey agreed that Student’s frustration level was not normal. Mother testified that the Parents requested an independent evaluation at that time and brought Student to be evaluated by a neuropsychologist, Dr. Sherman. (Mother)
7. Janet Cohen Sherman, Ph.D., conducted a neuropshychological examination of Student on February 2, 2001 when Student was eight years old and in the second grade7 . Dr. Sherman wrote that Student is a “friendly child who was highly motivated and cooperative for the evaluation” and she was able to follow all task instructions. Using the WISC-III, Dr. Sherman determined that Student’s verbal IQ was 112, her performance IQ was 112 and her full scale IQ was 113, all in the high average range. Her Index scored showed that other than Freedom from Distractibility, her abilities fall within or very near the High Average range. On the Beery Developmental Test of visual Motor Integration Student scored in the average range. Student’s receptive vocabulary was assessed via the Peabody Picture Vocabulary Test-3. Her standard score was 118, at the 88 th percentile. Her expressive language skills were assessed via the Expressive Vocabulary Test. Student’s score was 96, at the 39 th percentile and in the Average range. Her receptive language skills were also assessed by the Oral Directions sub-test from the DTLA. On this test, Student’s score was at the lower end of the Average range and at the 25 th percentile. Dr. Sherman concluded that the score was far below Student’s High Average receptive vocabulary score and suggested that Student has some difficulty comprehending more complex language. Student’s memory abilities were assessed using the story memory test from the Children’s Memory Scale. Student’s performance for immediate recall was within the average range and on delayed recall was at a lower level within the average range. Dr. Sherman assessed Student’s academic achievement with the sub-tests of the WIAT. Student’s scores on all measures fell within the average range with lower scores, at the “very lower end of Average” on Basic Reading and Numerical Operations. Student’s reading skills were assessed as well. Using the Roswell Chall Diagnostic Reading Test, Dr. Sherman found that “the only aspect of decoding for which [Student] has achieved a level of mastery is for consonant sounds.” Student’s reading comprehension, as assessed by the Gates MacGinitie Reading Tests, was “below her current mid-second grade level, with her vocabulary score falling at the 1.7 grade equivalent level … and her comprehension score falling at the 1.6 grade equivalent level.” Student did not meet the diagnostic criteria for ADHD, but Parents’ responses to the BASC indicate Student “falls within the ‘at-risk’ range for hyperactivity.” (P-1)
8. Dr. Sherman concluded that the evaluation results indicate that Student is a child with developmental dyslexia and that she exhibited weaknesses in reading decoding and comprehension. She also noted difficulty with phonologically coding information which impacted her auditory memory and short-term memory. Dr. Sherman also noted Student’s weakness in numerical operations. She recommended that Student receive tutoring to “improve her knowledge of phonological decoding in order for her basic reading skills to improve.” She recommended that the tutoring be based on a “direct and systematic method of teaching phonological decoding rules” such as Orton-Gillingham (hereafter, “O-G”) or Wilson methods. She recommended that the tutoring be provided 1:1 at least once per week and that the tutoring sessions should be three times per week for 30 minutes each session. She recommended that Student receive tutoring in math focussed on improving her knowledge of basic operations. She suggested taping math facts to Student’s work area so she would not have to rely on her memory. She recommended preferential seating, checks by the teacher to ensure understanding of instructions; and breaking down instructions to small units. She recommended against retaining Student in the second grade because she is so bright and suggested that she receive specific tutoring in reading. (P-1)
9. David N. Caplan, M.D., Ph.D., Medical Director of Reading Disabilities, at Massachusetts General Hospital and Phyllis Meisel, Director of Reading Disabilities, at Massachusetts General Hospital sent a letter dated March 13, 2001 addressed to “To Whom it May Concern.” It stated that Dr. Sherman asked them to review the testing and they were recommending that she receive one-to-one O-G tutoring 5 times per week for 40-50 minute sessions. It noted the tutor should be “fully trained” in O-G and that “this structured, multi-sensory, phonetic approach should help meet [Student]’s needs.” (S-10)
10. Mother testified that the Team convened to review Dr. Sherman’s results in March 2001. She stated that the Team wished to validate Dr. Sherman’s testing and Parents provided consent for classroom observation and possible testing. (Mother)
11. Helen Healey, Student’s second grade teacher, completed an educational assessment of Student on April 4, 2001. She noted that Student is making progress in the general curriculum but she is a dependent learner and requires a lot of individual instruction and modifications. She noted her major area of weakness as reading and language arts. She indicated that Student is making good progress in science and social studies and adequate progress in math, with a weakness in numerical operations. She noted Student’s high level of anxiety and her awareness that she is not progressing as her peers are. She reported Student’s instructional reading level was at the end of first grade and she had difficulty applying knowledge of phonics and weak word attack skills. She noted Student’s difficulty reading on her own. She reported Student has difficulty with numerical operations. She wrote that Student is a visual learner and successfully uses manipulatives and cueing strategies. She reported that Student has difficulty following oral directions and requires them to be broken down. She explained that Student loses her focus easily. She reiterated that Student exhibits anxiety especially in “any type of reading situation.” (S-12)
12. Mr. McSharry administered a speech and language evaluation to Student on April 25 and 26, 2001. He noted that Student “displays a significantly delayed response time.” He further noted that she rarely established eye contact and preferred to respond “I don’t know” or make no response at all until requested to do so by the examiner. He concluded “These behaviors may indicate a lack of self confidence and, in the opinion of this examiner, resulted in decreased scores on several sub-tests requiring an oral response.” She scored lower in the Peabody Picture Vocabulary Test than she had when Mr. McSharry previously evaluated her. Her receptive Language Score was in the low average range in contrast to her prior average range score. Her expressive language score remained in the average range although her grade equivalent score did not increase in the year between administrations. Mr. McSharry noted that Student displays strengths in processing auditory information when accompanied by a visual stimulus, correct use of a grammatical structure and in her ability to identify relationships of auditorily presented items. She showed weakness in the area of short-term auditory memory. He recommended some strategies/modifications to be used in the classroom. (S-11)
13. The Team reconvened on May 10, 2001 and drafted an IEP that ran from 5/18/01 to 5/17/02. It provided for many accommodations8 , consultation with the special education teacher 1 x 10 minutes per week and consultation with the speech language therapist 1 x 10 minutes per week. It provided for pull-out reading/language arts with the special education teacher 4 x 60 minutes per week. Parents accepted the IEP in full on May 18, 2001. (S-7; Mother)
14. Student’s second grade report card showed the following grades9 : Reading/Language Arts: N, N, N10 ; Handwriting: S, S, S; Mathematics: S, S, S11 ; Science: S, S, S; Social Studies: S, O, O. (S-17)
15. Mother testified that she hired a private tutor trained in the O-G program to provide tutoring to Student immediately after she received the results of Dr. Sherman’s evaluation. Student received private tutoring three times per week after school and on Saturdays throughout the remainder of the school year and during the summer. In the fall of 2001 Student’s private tutoring was reduced to one session per week because she began receiving tutoring in school. (Mother)
16. Mother testified that Student did not receive services during the summer between second and third grade. She testified that Parents had requested summer services during the Team meeting. She testified that Pembroke had offered to provide a Title I reading program using the Bradley Phonics method and Parents rejected the offer because they believed Student should receive the O-G program during the summer. (Mother)
17. Lucille Gaudreau testified that she was Student’s third grade teacher and has been a regular education teacher at Pembroke Public Schools for 29 years. She taught Student in all subjects except reading/phonics which Ellen Stockdale taught. She described Student as vivacious, excited, full of activity and precious. She explained that Student got along with her peers and had a very good sense of self. She testified that Student was motivated to learn and demonstrated weakness in her reading skills. Mrs. Gaudreau testified that Student’s reading comprehension level was at the second or third grade level during third grade and her instructional level was third grade in a small group or 1:1. She testified that Student was able to successfully use her textbooks because she never had to use them independently because the class did its reading in small groups. She testified that she used a multi-sensory approach in that she used every modality available to help students to learn. She used spiraling and reminded Student to “use what you’ve been taught” or asked “what does it sound like” when Student required cueing. She testified that Student relied more on auditory than visual information and would often ask for repetition. Mrs. Gaudreau stated she would make sure Student understood directions and ask her to repeat what she had said. She testified that Student did not have fine motor difficulties or spatial difficulties. She testified that Student made progress during the third grade and although she had difficulty at times, she did not fail any subjects. Student found writing difficult, which lead the Team to recommend that the speech language pathologist, who has 35 years of experience, work with Student on writing skills during the fourth grade. Mrs. Gaudreau testified that Student made progress in reading and oral expression and her writing was “coming along.” She thought Student should be in a regular education fourth grade class with tutoring and speech and language therapy. She testified that at the beginning of the year Student would stop working when she got frustrated. Once she knew it was safe to ask questions she was less frustrated. She did not believe Student requires a program with all dyslexic peers. She spoke to Mother about Student’s anxiety about her grades and did not tell the counselor or the Team about the anxiety issues. (Gaudreau)
18. Mother testified that Student continued to be very frustrated at school during the third grade. She reported that Student was not happy and toward the end of the year she started calling herself stupid and crazy when she forgot things. She testified that she and her husband spent a great deal of time explaining to Student that she was bright and she learned differently than other children. She testified that Student never talked about school at home and that when she arrived home each day she threw her bag down and ran around. Mother testified that Student reported that she still sometimes heard Bradley Phonics in the classroom and it was confusing her. Mother opined that Student is an “actress” and wanted so badly to be like her peers that she held in her frustration during school and released it when she came home. She reported that Student was fearful about receiving her report card and expressed her fear in a paragraph she wrote at school. She testified that Mrs. Gaudreau was well aware of Mother’s concerns about Student and she did not suggest anything else to help.
19. Ellen Stockdale testified that she is trained in O-G and has done over 125 hours of practicum in O-G. She has known Student since second grade when she started providing services to her in May 2001. She tutored Student in 1:1 O-G four times per week for 60 minute per session. She tried to pull Student out of class when her class was doing its reading program. She spoke to Mrs. Gaudreau 3-4 times per week about Student. She testified that Student was put off by the reading process in 2001 and tried to avoid reading. Once she started the O-G program she blossomed. She was eager to please, enthusiastic, and responded well to the lessons. Student had difficulty with expressive language and had difficulty planning how she would present a thought. Ms. Stockdale would ask her to slow down and Student could organize herself. She had excellent receptive skills. She testified that Student did not have difficulty with auditory processing and she could understand oral directions. Ms. Gaudreau testified that she did word problems with Student during the O-G tutoring to assist Student. She described the O-G approach as being systematic. She testified that she used a pre-test to ascertain Student’s reading level and did activities using word cards that focused on phonograms. Student pre-tested at a level 1 and the private tutor finished level 2 with Student during the summer. In the fall of third grade she reviewed level one and continued with level 2. At the end of third grade student had completed level 2 and did some of level 3. She testified that if she had tutored Student in fourth grade she would have reviewed level 2 and proceeded to level 3. Mrs. Stockdale testified that O-G is a reading program and that classroom teachers would not generally use it. She does not believe that Student requires O-G throughout the day. Mrs. Stockdale testified that at times Student brought other work that she was concerned about to the tutorial. She testified that she would assist Student with the work for about 15 minutes. She also testified that Student sometimes came for a fifth session during the week and Student would bring a peer to whom Student would present a lesson. (Stockdale)
20. Mother testified that Parents began looking for an outside placement because they were concerned about Student ‘s frustration and they believed that she was unable to progress. (Mother) Parents received a letter from the Carroll School, dated March 25, 2002, offering Student placement for the 2002-2003 academic year. (S-6) On April 10, 2002, Dr. Sherman wrote a letter “To Whom it May Concern.” She stated that she supported Student’s placement at the Carroll School, referenced her 2/2/01 findings, and noted that student’s “significant deficits were exhibited in the face of high average intellectual abilities.” The letter stated Student’s parents told her Student “has failed to show carry through from the tutoring that she has been provided within the school and is continuing to struggle academically.” She concluded that Student would benefit from a setting that is dedicated to teaching children with developmental dyslexia and wrote “This type of setting would not only provide the intensive and individualized tutoring that [Student] needs, but would also provide a curriculum in which all subject material is taught through a multi-sensory approach.” (P-3)
21. The Team met on April 12, 2002. During the meeting, Ms. Gaudreau reported that Student’s participation had increased significantly. She stated she saw a huge improvement in what Student sees and hears. She reported being pleased with Student’s progress in all areas. Ms. Duffy reported that Student’s cooperative groups were going well and Student keeps her peers on task. She reported Student was extremely successful in most areas and has good coping strategies. (S-23) Mother testified that Student’s teachers stated Student was responding beautifully to the O-G tutoring and doing well. Pembroke proposed an IEP to run from 4/12/02 to 4/12/03. The IEP described Student as an enthusiastic, motivated student. It referenced her specific language based reading disability impacts her performance in the general education classroom and stated she has shown considerable growth in all educational areas. It noted Student’s “particular weakness on verbal short term memory tasks, difficulty with foresight and planning, weaker expressive than receptive language skills, and significant difficulties with tasks that require phonologically coding information. It included extensive accommodations12 . The service delivery grid includes consultation with special needs staff 1 x 10 minutes per week; Reading/language arts with the special needs staff 4 x 60 minutes per week and speech language services with the speech language pathologist 2 x 25 minutes per week. Parent rejected the IEP in full on April 20, 2002. (S-1)
22. Ms. Stockdale’s June 12, 2002 progress reports indicate that Student has demonstrated good progress in language arts, but will require continuation of the program in order to fully achieve her IEP goal. She noted Student is beginning to self-correct and is able to note misspellings. Her performance can be inconsistent. Mr. McSharry reported Student has made good growth in using strategies to aid processing. He noted that she is making progress in her ability to focus auditory attention and maintain eye contact to correctly respond to questions. (S-13)
23. Student’s third grade report card showed the following grades: Reading/Language Arts: C, B, B; Spelling: A, B, B; Handwriting: B,B, B; Mathematics: C, C, C; Social Studies: B,A, C; Science: C, B, B. Her effort, work habits and behavior traits were nearly always reported as outstanding. (S-14)
24. Pembroke sought consent to evaluate Student by notice dated June 17, 2002. The reason provided by Pembroke was that they had not been given an opportunity to evaluate Student and their receipt of parents’ letter stating that they intended to unilaterally place Student at the Carroll School. (S-5)
25. Pembroke sent Parents a notice dated September 27, 2002 to the Parents indicating their intention not to act upon a parental request. The attached explanation (dated June 14, 2002) stated that Pembroke refuses to support Student’s placement at a private school and states the district had agreed to review parents’ private testing, but requested an opportunity to complete a district evaluation. Parents did not agree to allow the district to complete an evaluation. The explanation states that Parents were responsible to provide Pembroke notice ten days prior to removing Student from the public schools. It alleges that Pembroke was informed by the Carroll School via fax on September 20, 2002 that Student was enrolled. (S-4)
26. Parents unilaterally placed Student at the Carroll School for the fourth grade. (Mother) The Carroll School “accepts students of average to above-average intelligence whose academic difficulties are primarily due to diagnosed language-learning disabilities and/or dyslexia.” It is approved by the Massachusetts Department of Education to receive public funding under Chapter 766. Classes have six to eight students. The school is “committed to the principles of the [O-G] approach for reading remediation, and all teachers are required to have studied OG within their first three years of hire. This ensures that consistency and support are provided curriculum-wide throughout a student’s day.” (P-9)
27. Jennifer Hornsby testified that she was Student’s fourth grade teacher at the Carroll School (hereafter, Carroll). There were four students other than Student in her class. She explained that she is a “long term substitute” at Carroll and is not a certified teacher. She began working at Carroll in February 2002. She had received a bachelor’s degree in 2001 and did not have any training as a teacher. She testified that during the summer of 2002 she participated in a six week O-G training program at Carroll. She explained that the first week of training consisted of lectures and for the remaining weeks she provided supervised tutoring to three students for one hour per day13 . She became a long-term substitute in September 2002 and she testified that she was supervised at the beginning of the year and that she co-taught with Susan Ludwig twice per week. Ms. Ludwig also assisted her in planning her Framing Your Thoughts lessons and consulted with her. Ms. Hornsby testified that she teaches Student’s language, math, science and social studies classes and provides her O-G tutorial. She testified that Carroll uses its own O-G curriculum and that the levels appear quite similar to the levels of the Massachusetts General curriculum used by Pembroke. She testified that she started Student “from scratch” with the O-G tutorials to “make sure” she had grasped the concepts. She stated that they moved very quickly through level one and tried to solidify level two and introduced concepts of level three. (Hornsby)
Ms. Hornsby hesitantly testified that Student’s receptive language level was at or above grade level while her expressive language level was below grade level. She was not able to identify a grade level for Student’s auditory processing skills and stated “I’m at a loss” when asked to identify Student’s deficits in that area. She testified that Student chooses chapter books for her independent reading and identified some of the books Student chose. She was not able to identify the reading level of the books Student chose nor could she identify the reading level of a series of books ( The Littles ) she kept in her classroom for students to read. She testified that she does not use a textbook for science or social studies and could not identify the reading level of the materials she provides students in those subjects. (Hornsby)
She testified that she uses the “O-G approach” throughout the day and explained the approach as using manipulatives and a multi-sensory approach and spiraling. She explained that using a multi-sensory approach means using manipulatives. She agreed that even a regular education teacher would use the aforementioned techniques. She testified that the only difference between teaching a regular education student and a dyslexic student is the use of the aforementioned techniques and the pace. She testified that Carroll has a policy of “no guessing” while reading words and stated that if Student guesses she reminds her to “use the skills that you’ve been taught.” She testified that cueing is part of the O-G approach. She described one cue in which she places her finger in front of her mouth and described how she would assist a student struggling with a word14 . She testified that she uses the cueing specifically in the tutorials and that the cues “seep into the classroom discussion.” She was unable to identify any other cueing she uses in the classroom. While explaining how O-G is integrated throughout the day Ms. Hornsby referenced a science class program that helps students to describe their position in a room compared to another object. She testified that dyslexic children tend to have deficiencies in spatial relations. She testified that Student has some difficulty with spatial relations, but did not know how to identify spatial difficulties by testing or written work. She discussed working on handwriting during the O-G tutorial and described various handwriting lessons using shaving cream and “sky writing.” She described Student’s handwriting as “fairly strong” and stated that “there’s always room for improvement.” She stated that Student tends to be distractible and she refocuses her attention by speaking directly to her.
28. Ms. Hornsby testified that she has a language department meeting weekly and she has never specifically discussed Student at a meeting. She stated that she has consulted her supervisors about teaching the class in general, but never regarding Student specifically. (Hornsby)
29. Ms. Stockdale testified that she observed Student’s reading class taught by Ms. Hornsby in March 2003. She stated that she was surprised by the low level at which Student was working. She stated that the reading passage being read was very simple and was simple for Student. The spelling lesson she observed involved the “floss rule” that Mrs. Stockdale testified Student had learned in the spring of 2001. Mrs. Stockdale believed that the other students in the class were at a lower level than Student. (Stockdale)
30. Mary Beth Fletcher testified that she is the Director of Language at the Carroll Lower School. She has a Master’s and Doctorate in education with a concentration in reading, language, and learning. She is certified in elementary education and as a consulting teacher of reading and has a waiver for certification in moderate disabilities. She is certified in various reading programs and is at the associate level in O-G. She testified that she develops and designs the curriculum at the lower school and supervises and evaluates the language teachers. She is Ms. Hornsby’s “key supervisor15 .” When asked for an assessment of Ms. Hornsby she paused for several seconds before stating “My opinion of [Ms. Hornsby] is that for a teacher with her level of training and experience I felt that she was doing a good job this year. I didn’t have specific concerns about her ability to teach.” She testified that she has not observed any of Student’s tutoring sessions and has not discussed Student specifically with Ms. Hornsby.
Dr. Fletcher described the principles of O-G and described how they are applied at Carroll. She stated that she uses the principles in the curriculum and she believes Ms. Hornsby uses the principles in her classroom. She testified that there are different O-G training programs that group skills in slightly different levels. She stated it is difficult to say which level a student is at because it is not related to his or her reading level. She explained that the levels are used to facilitate communication between teachers regarding a student’s skills. She stated that she would expect Student to revisit old skills as part of spiraling and part of her difficulty with memory.
Dr. Fletcher testified that only publicly funded students at Carroll have IEPs. The other students do not have a document that outlines specific individualized goals and objectives. She stated that there are goals for all the students in the class. All fourth grade students have the same skill check lists and they are working on many of the same skills. (Fletcher)
31. The Team proposed an IEP to run from 4/29/03 to 4/28/04 after an April 29, 2003 Team meeting. The IEP proposed a substantially separate classroom. The service delivery grid contained a consultation with the special needs staff 1 x 10 minutes per week, an additional consultation with the special needs staff 1 x 25 minutes per week and a consultation with the speech language pathologist 1 x 10 minutes per week. The direct services included Reading/Language Arts 4 x 60 minutes per week, speech/language 2 x 25 minutes per week and academic support 5 x 130 minutes per week with the special needs staff. The accommodations listed were the same that had been listed on the previously proposed IEP. (See S-1) (S-2; P-6) Parents rejected the IEP on May 19, 2003. (P-6)
32. Ms. Stockdale testified that she does not believe Student requires a program with all dyslexic peers. She believes that Student has compensatory strategies as she has heard Student using strategies. She testified that Student is not shy about asking for repetition or telling the teacher or a peer when she did not understand. She testified that Student would have benefited from the services of a speech language pathologist who could work on expressive language and writing with Student. She testified that she would consult with the speech language pathologist and he would include the vocabulary that she was using in Student’s lessons in his lessons with Student. (Stockdale)
33. Gretchen Timmel testified that she is a licensed educational psychologist, a certified elementary teacher and a certified school psychologist and she taught in a public school 18 years ago. She currently works at Massachusetts General Hospital’s psychology assessment center and as an education liaison. She testified that she goes to schools and observes classrooms, attends team meetings, assesses whether a placement is appropriate and collaborates with the psychologist who did testing to make recommendations to school systems regarding educational services. She also performs psychometric testing. She testified that she works with Dr. Sherman, the head of the psychology assessment center and she consulted her before testifying. Ms. Timmel testified that her first contact with Student was when she observed her at Carroll in October 2002. She testified that prior to observing Student she reviewed Dr. Sherman’s February 2001 report of her evaluation of Student. (Timmel)
Ms. Timmel testified that she spent about 3 hours observing Student at Carroll. She observed Student in Ms. Hornsby’s class for language, math and reading and wrote a report regarding her observations (P-4). She testified that Student was engaged. She testified that she believed she was observing a “traditional language based verbal lesson utilizing the O-G method of cueing and associations.” She stated that she viewed Ms. Hornsby as being a “very traditional, well-versed language expert who made good use of the O-G program throughout her time with Student.” She stated that when she heard Student read aloud she estimated her reading level to be at the beginning second grade level. She described Student’s reading as slow and laborious and stated she required feedback and cueing. She found that Student was not reading fluently and that her reading was “very much in line with the other students” in her class.” She compared Student’s reading to that of a “child who was just beginning to form a foundation of the sound symbol unity.” She found Student’s reading to be at a similar level as to when Dr. Sherman evaluated her although she was “a bit more solid.” She determined that at Carroll Student was actually reading and decoding and had not memorized the words ahead of time which she said was different from when Dr. Sherman evaluated her. She testified that as fourth graders students need to be approaching functional literacy. She did not observe Student to have reached that level of functional literacy in October 2002. She described Carroll’s multi-sensory systematic approach as being tailored toward dyslexic children and “specifically targeted toward a specific functioning of the brain.” She stated that the cues used had to be specific visual cues “to go with a specific auditory association in order to make the connection.”
34. Ms. Timmel testified that the IEP offered by Pembroke for the fourth grade (4/02 –4/03) would not meet Student’s needs because it was not intensive enough. She testified that Student required an “integrated, systematic, multi-sensory approach throughout the school day.” She stated that one of the “key ingredients” in teaching Student compensatory strategies is to “have a bombardment of reinforcement of the specific auditory cueing and development system that exists in O-G.” She stated that Student should have been offered a language-based program and that she is the only evaluator who recommended that Student be instructed in a language based classroom. She testified that Student would not be able to handle the curriculum as presented in a regular classroom and a regular classroom would not provide Student with the “intense bombardment of the language-based approach that she would need in order to be able to compensate.” She stated that given the choice of sending Student to Carroll or Pembroke, Carroll was the only viable choice for Student. (Timmel)
35. Ms. Timmel testified that Parents asked her to review a self-contained classroom in Pembroke that was being proposed for Student in April or May 2003. She observed the classroom on May 21, 2003 and wrote a report of her findings. (P-7) Her report indicates that there were five students in the classroom and she was told the class was for children who did better with extra time and a slower pace and who had processing issues. She testified that none of the other children in the program had dyslexia and some students had non-verbal learning disabilities. She testified that the teaching approach was described to her as multi-sensory and that visuals such as charting and writing on the board would accompany the verbal introduction of the material. She stated that the reading levels of the textbook were modified. She did not observe an O-G tutorial. She assumed that if there was not another dyslexic child in the classroom the program was not designed specifically for a dyslexic student. The type of cueing she would require for the reinforcement of O-G throughout the curriculum would be unlikely to happen because the other students would not require the same kind of cueing. She testified that the teacher of the classroom she observed was not trained in O-G and used the Bradley Phonics method of cueing. She stated that it would likely confuse Student if another method of cueing were used in her classroom. Ms. Timmel did not believe that the 2003-2004 proposal was appropriate for Student because in her opinion it did not provide Student with a language-based program. She believed it was inappropriate for Student’s curriculum to be altered and modified in a non-systematic way that is not connected to her learning disability. She testified that it would make her learn to rely upon others in an altered curriculum to learn at a very basic level. She testified that Student is not ready to return to the mainstream. She stated that Student’s dyslexia is at least moderate to severe in its presentation.
36. Ms. Timmel testified that she did some informal testing of Student on May 20, 2003 to get some first hand information about Student’s literacy skills. She used sub-tests of the Woodcock Johnson to assess Student’s word identification and word attack skills. Student scored a grade equivalent of 2.8 on the word identification and 2.1 on the word attack sub-test16 . Ms. Timmel assessed Student’s reading comprehension at the 2.0 grade equivalent by the Gates-MacGinitie. (P-7) Ms. Hornsby assessed Student’s comprehension at the 5.1 grade equivalency in March 2003. (P-12) Ms. Timmel testified that she has not reviewed any school testing that was done after Dr. Sherman’s 2001 evaluation and does not know what level Student was at when she left Pembroke Public Schools. She has never spoken to Student’s third grade teacher. She testified that in order to deliver a language program to Student the service provider would need to know her expressive and receptive language level and her auditory processing level. She agreed that Student has written expression difficulties and a speech and language pathologist would bring specialized expertise to those difficulties over a non-certified teacher. She testified that she was aware that Dr. Sherman wrote a follow up letter in 2002 and acknowledged that it was based upon parent report. (Timmel)
37. On May 2, 2003, Pembroke’s attorney sent a letter to Parents’ attorney indicating that Pembroke had not received the Carroll School reports and would therefore write an IEP with general goals and objectives so that the process would continue to move forward. (S-3)
38. Mother testified that Student arrived home from Carroll each day “bubbly and enthusiastic” and talks constantly about her day and her friends. She testified that Student is thrilled to be there and is thriving. She explained that she does her homework independently for the first time in her life and only wants minimal assistance. Student hated missing school so much that she wanted to go to school when she had a fever of 103 degrees. Mother testified that Student is like a different child. (Mother)
FINDINGS AND CONCLUSIONS:
Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA)17 and the state special education statute.18 As such, he is entitled to a free appropriate public education (FAPE). Neither his status nor his entitlement is in dispute. Under the FAPE standard, the IEP proposed by the school district must offer the student a free appropriate public education that meets state educational standards. This education must be offered in the least restrictive environment appropriate to meet the student’s individual needs19 . Federal law also requires that the student be able to fully participate in the general curriculum to the maximum extent possible. 20 USC § 1415(d)(1)(A)(iii); 34 CFR 300.347(a)(2)(I) and (a)(3)(ii); 64 Fed. Reg. No. 48, page 12595, column 1; See also, In Re: Worcester Public Schools, BSEA # 00-1912, 6 MSER 194 (2000).
Effective January 1, 2002, Massachusetts adopted the federal standard requiring that the IEP proposed by the school district offer the student a Free Appropriate Public Education that meets state educational standards. MGL c. 71 B § 1, 2, 3; See also 603 CMR 28.01 & 28.02 (21) Additionally, the federal law requires that the student have access to full participation in the general curriculum, to the maximum extent possible. Also, the student’s education must be offered in the least restrictive environment appropriate to meet his/her individual needs20 . 20 USC §1414(d)(1)(A)(iii); 34 CFR 300.347(a)(2)(i) and (a)(3)(ii); 64 Fed. Reg. No. 48, page 12595, column 1; MGL c. 71B § 1; 603 CMR 28.02 (12). See In re: Worcester Public Schools , BSEA # 00-0912, 6 MSER 194 (SEA MA 2000) and In re: Gill-Montague Public Schools District , BSEA # 02-1776, August 28, 2002.
As previously discussed in In re: Gill- Montague , “the Massachusetts statute defines FAPE as “special education and related services as consistent with the provisions set forth in 20 U.S.C. 1400 et seq. [the IDEA], its accompanying regulations, and which meet the education standards established by statute or established by regulations promulgated by the board of education,”21 , including the Massachusetts state curriculum frameworks.22 The IDEA in turn defines FAPE as “special education and related services that:
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary, or secondary school education in the State involved; and
(D) are provided in conformity with the individualized education program required under section 614 (d).23
As stated by the federal courts, the LEA is responsible to offer students meaningful access to an education through an IEP that provides “significant learning” and confers “meaningful benefit” to the student24 , through “personalized instruction with sufficient support services …”25 . The requirements of the law assure the student access to a public education rather than an education that maximizes the student’s individual potential. Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993); GD v. Westmoreland School District , 930 F.2d 942 (1 st Cir. 1991).
The First Circuit Court of Appeals interpreted minimally acceptable standards of educational progress requiring that the IEP yield “effective results” and “demonstrable improvement” in the “various educational and personal skills identified as special needs,”26 in the context of the potential of the particular student.27
Similarly, the Massachusetts special education statute defines “special education” to mean “educational programs and assignments . . . designed to develop the educational potential of children with disabilities . . .” which permit a student to make meaningful educational progress.28 MGL c. 71B § 1, the special education statute in Massachusetts, requires that eligible students receive special education services designed to develop the student’s individual educational potential”29 consistent with the interpretation provided by other Courts. The IEP is the road map that defines the services to be offered and the measurable goals embodied therein determine whether the student has made educational progress.30 See also, In Re: Arlington Public Schools , BSEA # 02-1327, issued on July 23, 2002.
2002-2003 IEP
I find that IEP proposed by Pembroke for the 2002-2003 was not reasonably calculated to provide the Student with a free appropriate education in the least restrictive environment. Although the IEP appropriately provided for O-G tutoring four times per week with an experienced tutor and provided for direct services with the speech language pathologist, it did not provide for any services to address Student’s anxiety. The record is replete with evidence that Student was suffering from anxiety resulting from her difficulty in learning how to read. Mother credibly testified that she discussed Student’s anxiety level with Ms. Healey during the second grade and with Ms. Gaudreau during Student’s third grade. Additionally, Mr. McSharry’s 2001 evaluation referenced Student’s apparent lack of self confidence and Ms. Healey’s 2001 educational assessment refers to Student’s high levels of anxiety and awareness that she is not progressing as quickly as her peers. At the very least, Student should have been referred for counseling or assisted in understanding her disability. Student clearly did not understand that although she is bright, her learning disability caused her to have difficulty achieving academically. As a result, Student experienced anxiety which was not addressed by her IEP.
Additionally, the IEP did not provide for summer tutoring services. Student had been struggling with reading for quite some time by the end of the second grade. The Team had previously determined that she was ineligible for special education despite a May 2000 reading assessment which concluded Student would find the reading demands and oral comprehension demands of age-level tasks difficult and phonological awareness demands very difficult. Student had recently begun receiving tutoring in O-G by the end of the second grade and should have been provided summer tutoring to ensure that she would not regress during the summer and would be able to move forward in the O-G program at the beginning of third grade.31
But for its failure to address Student’s anxiety, and the lack of provision of summer services, I find that the IEP was appropriate to meet Student’s needs. The IEP provided for O-G tutoring 4 x 60 minutes per week which exceeded the amount of tutoring recommended by the independent evaluator, Dr. Sherman. (P-1) Ms. Stockdale was appropriately credentialed as a certified Master’s level special education teacher who was trained in O-G. Ms. Gaudreau testified that they consulted one another regarding Student. The IEP also appropriately included direct speech language services to further assist Student with her language difficulties.
Carroll School Placement
Reimbursement for a unilateral private school placement may only be ordered under specific circumstances. First, a Hearing Officer must determine that the school district failed to make FAPE available to the child in a timely manner prior to that enrollment. Secondly, the private placement must be appropriate. See 34 CFR 300.403(c). I have already determined that Pembroke failed to make FAPE available to the Student in a timely manner prior to Student’s enrollment at Carroll School. However, the persuasive evidence before me demonstrates that the Carroll School placement was inappropriate for Student for several reasons.
The testimony of Ms. Hornsby leads me to conclude that Student received virtually all of her academic instruction from a teacher who was inexperienced, uncertified, and inadequately trained to teach Student. Although Dr. Fletcher was able to articulately provide information regarding the teaching philosophy and cueing methods used at the Carroll School, Ms. Hornsby, the direct service provider, seemed to be unaware of most of the principles and methods Dr. Fletcher discussed. Ms. Hornsby clearly did not have the same understanding of a multi-sensory learning approach as Dr. Fletcher described, as she testified that a multi-sensory approach referred to using manipulatives. Ms. Hornsby was not able to identify Student’s reading level or her auditory processing level. Ms. Timmel testified that it would be very important to know the grade level of a dyslexic student’s skills when teaching said student. (Timmel) Ms. Hornsby was not even able to identify the grade level of materials that she used in her classroom and books that she provided to students. The only training that Ms. Hornsby has received in teaching students is the six week O-G training that she received from Carroll. She did not have the appropriate training to provide services to a student with a learning disability. (Hornsby)
The Carroll School did not have a speech language pathologist available to provide direct services to Student. Although Ms. Hornsby testified that there was a speech language pathologist with whom she could consult, she never did so with regard to Student. (Hornsby) Ms. Stockdale testified that a speech language pathologist could assist Student in working on her expressive language and written language skills and that Pembroke’s speech language pathologist had over thirty years of experience in providing services to students. She also testified that she would be able to consult the speech language pathologist and he could use the vocabulary Student was using in class in his lessons with Student. (Stockdale)
The program provided by Carroll was not individualized to Student’s needs. Student did not have an IEP. She did not have individual goals and objectives, but instead focussed on the same skills as all students at her grade level. Ms. Hornsby testified that Student received instruction in handwriting even though her handwriting was pretty good. (Hornsby) Student should have received only education that pertained to her individual needs and should not have been receiving unnecessary instruction in skills that she had already mastered.
The Carroll School program was overly restrictive for Student. Ms. Gaudreau and Ms. Stockdale both testified that for the fourth grade Student should be in regular education classes with pull out services for reading and speech and language. Ms. Gaudreau credibly testified that Student had made progress in her regular education classes during the third grade and had gotten along with her peers. Ms. Stockdale testified that Student loved working in cooperative groups and she would often organize her group. She testified that Student was able to learn from her peers. (Stockdale) The evidence suggests that Student would have benefited from attending some of her classes with mainstream peers and that a placement in a classroom with all dyslexic children was overly restrictive for her.
2003-2004 IEP
I find that the IEP proposed by Pembroke for the 2003-2004 school year is reasonably calculated to provide a free appropriate education in the least restrictive environment. Although it specifies a substantially separate classroom for academics, Student will have the opportunity to be exposed to her regular education peers for “specials.” Additionally, if it becomes apparent that Student does not require a substantially separate classroom for all of her academic subjects, she could be mainstreamed for appropriate classes. I did not credit Ms. Timmel’s testimony that Student required a substantially separate classroom with only dyslexic peers and with O-G used throughout the day. Ms. Timmel was the only evaluator who recommended such services. Her testimony that Ms. Hornsby was a language expert in light of Ms. Hornsby’s testimony regarding her experience called her credibility further into question. Although I found that the Carroll School was inappropriate for the Student, Mother credibly testified that Student did not experience anxiety and enjoyed school while at the Carroll School. As I have found that Student’s lack of anxiety was not the result of the instruction she received, it may be that the small class sizes allowed Student more individual attention and caused her to be less anxious, and this small class size environment will be available to Student pursuant to Pembroke’s 2003-2004 IEP.
I was not persuaded by Ms. Timmel’s testimony that Student would only be able to make progress in a classroom where all of the students were dyslexic. She is the only evaluator who had that opinion. Also, the reason that she provided for her opinion was so as to ensure that Student would not be confused by the cues that the teacher gave to students with nonverbal language disability. In a very small classroom, a special education certified teacher should be capable of sufficiently individualizing the services that he or she provides to each student.
As Student is no longer experiencing anxiety, it would be unnecessary to provide counseling services to her at this time and therefore I do not issue an order for compensatory counseling services. However, should her teachers notice the emergence of any anxiety, the Team should be reconvened to address the issue immediately. Additionally, it would likely be helpful for Student to be provided with some information about dyslexia and insight about her learning style.
ORDER
I find that the IEP proposed by the Pembroke Public Schools for the 2002-2003 school year was not reasonably calculated to provide the Student with a free appropriate public education in the least restrictive environment. However, I also find that the Carroll School failed to provide the Student with a free appropriate education in the least restrictive environment and therefore find that Parents are not entitled to reimbursement for tuition and transportation expenses incurred in connection with Student’s Carroll School placement. I order that Pembroke reimburse Parents for the cost of tutoring during the summer of 2002 as the Student should have received summer services.
I find that the IEP proposed by Pembroke Public Schools for the 2003-2004 school year is reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment.
I Order the Team to reconvene after the first six weeks of school to determine whether the substantially separate classroom continues to be the least restrictive environment or whether additional mainstreaming is appropriate.
By the Hearing Officer,
____________________________________
Catherine M. Putney-Yaceshyn
Dated: August 18, 2003
1
Mr. McSharry used the Peabody Picture Test-Revised and the Clinical Evaluation of Language Fundamentals, 3rd Edition. (S-9)
2
Mother testified that when Student came home from school she sometimes had wet her pants and she would run “frantically” around the cul-de-sac each day.
3
Mother testified that Student’s vision and hearing were assessed at Massachusetts Eye and Ear Infirmary and they were normal.
4
Ms. Smith used the Woodcock Diagnostic Reading Battery.
5
Student received 16 “Needs Improvement”; 28 “Satisfactory; and 1 Outstanding for the final marking period.
6
Mother testified that Student had a tantrum that lasted longer than 45 minutes and was frantic and inconsolable. Student stated that it was a mistake and they must have given her the wrong report card. Mother described Student’s reaction as traumatic.
7
She was referred by her pediatrician due to parental concerns about Student’s reading and attentional issues.
8
Establish and maintain eye contact in all speaking situations; ask Student to restate instructions/directions/conversations. This will help her to recall what was heard and allows the speaker to monitor comprehension; preferential seating within the classroom to allow Student to use visual cues from the teacher; observe Student closely to determine if she comprehends the task; encourage Student to seek help when she does not comprehend the task assigned and assure her that it is acceptable to do so; presentation of directions/instructions should be visual as well as auditory whenever possible; be aware that Student may need directions/instructions repeated or rephrased; provide questions ahead to allow time for formulation of response; give directions/instructions one at a time using vocabulary that makes the sequence clear, first, second, then and last; use of checklist to keep student organized; use of graphic organizers, visual aids and color-coding in all academic areas when appropriate; administer tests in a small group setting, particularly in content areas when necessary; provide open book tests if appropriate; administer tests individually in a room other than the one used by the rest of the class when necessary; test administrator reads tests to student in areas other than Reading if necessary; to address Student’s attentional issues there should be checks by her teachers to insure she has understood task instructions; break down instructions into smaller units; work in small group settings whenever possible to decrease distractions; assign Student to be a peer tutor during activities that involve hands on projects.
9
Key: O-outstanding; S-satisfactory; N- Needs Improvement.
10
Phonics skills: N, N, N; Reads with Understanding: N, N, S; Reads Orally: N, N, N; Reads Independently: N, S, N; Oral Expression: N, N, S; Written Expression: N, S, S; Spelling: S, S, S.
11
Understands Concepts: N, S, S; Addition Facts: N, N, S; Subtraction Facts: N, N, N; Computes with Accuracy: S, S, S; Demonstrates Problem Solving Ability: N, S, S
12
Establish and maintain eye contact in all speaking situations; ask Student to restate instructions/directions/conversations. This will help her to recall what was heard and allows the speaker to monitor comprehension; preferential seating within the classroom to allow Student to use visual cues from the teacher; observe Student closely to determine if she comprehends the task; encourage Student to seek help when she does not comprehend the task assigned and assure her that it is acceptable to do so; presentation of directions/instructions should be visual as well as auditory whenever possible; be aware that Student may need directions/instructions repeated or rephrased; provide questions ahead to allow time for formulation of response; give directions/instructions one at a time using vocabulary that makes the sequence clear, first, second, then and last; use of checklist to keep student organized; use of graphic organizers, visual aids and color-coding in all academic areas when appropriate; use of highlighter/underlining for note taking; reword/rephrase directions/test questions; read questions aloud if necessary; model directions; provide periodic “check-in” time for Student if additional help is needed; administer tests in a small group setting, particularly in content areas when necessary; provide open book tests if determined to be appropriate; administer tests individually in a room other than the one used by the rest of the class when necessary; test administrator reads tests to student in areas other than Reading if necessary; to address Student’s attentional issues there should be checks by her teachers to insure she has understood task instructions; break down instructions into smaller units; use of small cooperative groups in academic areas to facilitate learning; assign Student to be a peer tutor during activities that involve hands on projects; pre teach math vocabulary; use of graphic organizers for written language. (S-1; P-6)
13
She indicated that she completed 75 hours of supervised tutoring by the end of the summer of 2002.
14
Ms. Hornsby testified that if a student were struggling with the diphthong “ee” she would ask the Student “What does ee say?” and then have her go back and retry the word.
15
She testified that as Ms. Hornsby’s key supervisor she is responsible for conducting a formal evaluation and holding formal meetings about her professional development. She observes Ms. Hornsby formally as well.
16
Ms. Hornsby administered the same sub-tests on the Woodcock Johnson Revised one week later and Student received a grade equivalent of 2.8 on word identification and a 3.4 on word attack. (P-12)
17
20 USC 1400 et seq .
18
MGL c. 71B.
19
20 USC 1412(5)(A)
20
20 USC 1412(5)(A); 603 CMR 28.02(12)
21
MGL c. 71B, §1.
22
See the Mass. Department of Education’s Administrative Advisory SPED 2002-1: Guidance on the change in special education standard of service from “maximum possible development” to “free appropriate public education” (“FAPE”), Effective January 1, 2002 (hereafter Mass . FAPE Advisory ), 7 MSER Quarterly Reports 1 (2001).
23
33 USC 1401(8). The federal regulations adopted pursuant to the IDEA include a similar definition of FAPE. 34 CFR 300.13.
24
For a discussion of FAPE see Hendrick Hudson Bd. Of Education v. Rowley , 458 U.S. 176, 188-189 (1992); Cedar Rapids Community School District v. Garret F., 526 U.S. 66 (1999); Burlington v. Department of Educatio n , 736 F. 2d 773 (1 st Cir. 1984). Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000); Stockton by Stockton v. Barbour County Bd. of Educ., 25 IDELR 1076 (4 th Cir. 1997); MC v. Central Regional School District , 81 F.3d 389 (3 rd Cir. 1996), cert. denied 519 US 866 (1966); Ridgewood Board of Education v. NE , 30 IDELR 41 (3 rd Cir. 1999). See also GD v. Westmoreland School District , 930 F.3d 942 (1 st Cir. 1991).
25
Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 203, 102 S.Ct. 3034, 3049 (1982).
26
Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993) (program must be “reasonably calculated to provide ‘effective results’ and ‘demonstrable improvement’ in the various ‘educational and personal skills identified as special needs”); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990); Burlington v. Department of Education , 736 F.2d 773, 788 (1 st Cir. 1984).
27
Houston Independent School District v. Bobby R ., 200 F.3d 341 (5 th Cir. 2000) (a disabled child’s development must be measured with respect to the individual student, not by his relation to the rest of the class, as declining percentile scores may represent the student’s inability to maintain the same level of academic progress achieved by regular peers and not necessarily a lack of educational benefit); Ridgewood Board of Education v. NE , 172 F.3d 238 (3 rd Cir. 1999); MC v. Central Regional School District , 81 F.3d 389 (3 rd Cir. 1996), cert. denied 519 US 866 (1996); Roland v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990); Kevin T. v. Elmhurst , 36 IDELR 153 (N.D. Ill. 2002).
28
The Massachusetts Department of Education (DOE) stated that the “FAPE standard . . . requires the school district to provide personalized instruction tailored to the student’s needs, with sufficient support services to permit the student to make meaningful educational progress .” Mass. FAPE Advisory (see footnote 8 above for full title and citation of Advisory) (emphasis supplied).
29
603 CMR 28.01(3). The Massachusetts Department of Education has also noted that the Massachusetts Education Reform Act “underscores the Commonwealth’s commitment to assist all students to reach their full educational potential.” Mass. FAPE Advisory (see footnote 8 above for full title and citation of the Advisory). M.G.L. c. 69, §1 states in part that a paramount goal of the commonwealth is “to provide a public education system of sufficient quality to extend to all children the opportunity to reach their full potential.”
30
County of San Diego v. California Special Educ. Hearing Office, 93 F.3d 1458 (9th Cir. 1996) (the correct standard for measuring educational benefit under the IDEA is whether the child makes progress toward the goals set forth in IEP and not just whether the placement is reasonably calculated to provide the student educational benefits.); Evans v. Board of Education of the Rhinebeck Central School District , 930 F.Supp. 83 (S.D. N.Y. 1996) (the IEP must include measurable criteria to assess the student’s progress).
31
In concluding that Student should have received summer services during the summer of 2002, I am not concluding that Student also should have received summer services during each subsequent summer.