Special Education Appeals BSEA #99-1292
COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
Walpole Public Schools – BSEA #99-1292
This decision is issued pursuant to 20 U.S.C. 1401 et seq . (the “IDEA”); 29 U.S.C. 794; M.G.L. chs. 30A, 71B, and the Regulations promulgated under said statutes.
A hearing in the above-noted matter was convened on January 27, 1999, and thereafter on January 28 and February 22, 19991 in Malden, MA, before Reece Erlichman, Hearing Officer.
Those present for all or part of the proceedings were:
Brian Mahoney Attorney for Student/Parents
Mary Sullivan Kelley Director of Special Education, Walpole Public Schools
Mary Joann Reedy Attorney, Walpole Public Schools
William Powers Teacher, Walpole Public Schools
Erik Tyler Private Tutor
Kathryn Colvario Teacher, Walpole Public Schools
Carol Peck Teacher, Walpole Public Schools
Is the February 1998 IEP proposed for Student by Walpole Public Schools (Exh. P-5), as amended by Exh. S-3, reasonably calculated to assure his maximum possible educational development in the least restrictive environment consistent with that goal? If it is not, would the program offered by the Carroll and/or Landmark Schools meet said standard?
Are Parents entitled to reimbursement from Walpole Public Schools for costs of privately secured tutorial services furnished Student by Erik Tyler from October 1997 to date?
Profile and History
Student, age 17, is currently a junior at Walpole High School (hereafter WHS). He is of average cognitive ability (Exh. P-6, 7, 13) and presents with a language based learning disability, characterized by auditory processing and memory deficits. (Exhs. P-7, 10, 13, 17; testimony Dr. Kelley, Ms. Colvario, e.g.) He further manifests organizational difficulties and distractibility (testimony Ms. Peck, e.g.), and has been diagnosed as presenting with symptoms consistent with borderline attention deficit disorder. (Exh. P-18) Emotional issues including anxiety, stress, dysphoria and dysthymia have been diagnosed. (Exhs. P-13, 15, e.g.) Student has historically experienced anxiety associated with school, and was initially prescribed Imipramine (in grade four) to address this anxiety. (Testimony Mother; Exh. P-18, e.g.) He currently takes Zoloft and Tegretol. (Exhs. P-13, P-18; testimony Student)
Student has attended Walpole Public Schools (hereafter WPS) for his entire academic career. He was retained in Kindergarten and has received special services since first grade. (Refer, e.g., to testimony of Mother; and see Exh. P-9.)
Student entered WHS in September 1996. His IEP, covering the period September 1996- April 1997 (Exh. P-3)2, called for academic support five times per week, as well as consultation between regular education and resource room staff. Parents postponed decision on this IEP and requested an independent evaluation. In March 1997 the TEAM convened to consider the independent evaluation performed at Children’s Hospital Medical Center (CHMC) by Dr. Morgan. The amendment generated as a result of said meeting covered the period March 1997- March 1998, and added 1/2 period per week of academic support, and 1/2 period per week of counseling with the school psychologist (the latter to address academic coping strategies), to the IEP as originally written, thus totaling six periods per week of special services outside the classroom setting. In addition, the IEP provided for Teamed English, History, Biology and Math, on-going consultation between home and school via phone calls and notes, as well as bi-weekly reports. The amendment further provided for Student to check in three to five times per week after school with the resource room teacher regarding assignments and homework. (Exh. P-3) This amendment was never signed by Parents. (Testimony Dr. Kelley)
A meeting was thereafter convened in May of 1997 to consider the results of reading testing performed by WPS at the request of Parents. (Testimony of Dr. Kelley) The IEP generated as a result of said meeting, Exh. P-4, covered the period September 1997- June 1998, and called for eight sessions weekly of support tutoring as well as consultation by special education staff. This IEP was accepted with the condition that Walpole pay for private tutoring twice weekly in reading. This was the last IEP accepted by Parents. (Testimony Mother)
On February 9, 1998, a TEAM meeting was convened to consider the results of an independent evaluation performed at Franciscan Children’s Hospital. (Testimony of Dr. Kelley) The resulting IEP, of the 502.3 prototype, called for five periods per week of academic support in the resource room, three sessions per week of resource room reading support, and small group speech and language once per week. This IEP, while not accepted by Parents, was implemented as written for the latter part of Student’s sophomore year. (Testimony Peck) Walpole subsequently offered to reconvene the TEAM to amend the IEP, however Parents declined. (Testimony Dr. Kelley) Additional services have, however, been put into place for Student this academic year. Thus, his current program, as implemented, entails the following services and components3:
Teamed English, five times per cycle, co-taught by a regular and a special educator, with modifications and accommodations made within the classroom; Special Education Reading/Writing Lab, a new program (instituted in the fall of 1998), five sessions per cycle, small group in nature, staffed by a special education teacher and an aide4, addressing reading and writing language process; Academic Skills Support with a special education teacher (Ms. Peck), five times per seven day cycle; Academic Skills (reading) with a special education teacher (Ms. Colvario), three times per seven day cycle. Student further participates in regular education History, Health, Geometry and Field Ecology. The speech and language therapist goes into Student’s History and Ecology classes, once per seven day cycle. (Exh. S-3; testimony Dr. Kelley)
It is the February 1998 IEP, as amended by the services embodied in Exh. S-3, which is the subject of the instant appeal.
STATEMENT OF THE EVIDENCE
· In June 1988, during Student’s kindergarten year, he was evaluated by licensed clinical psychologist Dr. Casolaro. Student obtained both verbal and performance IQs at the low end of the average range, as measured by the WISC. His score on the Bender-Gestalt placed him within normal limits for his age. Dr. Casolaro concluded that Student, while then functioning at the low end of the average range, showed significant test variability such that his intellectual potential would likely be higher than test scores indicated. Most notable, according to this evaluator, was Student’s inconsistency in performance, i.e., at times he was able to answer questions above his grade level, at other times he failed items well below his grade level. The examiner further noted that inconsistency in classroom performance had been observed as well. (Exh. P-6)
· An April 1989 evaluation by Christopher Connolly, Ph.D., found Student, then in first grade, to present with at least average intellectual potential (WISC-R: VIQ-95, PIQ-105, FSIQ-100), with significant learning disabilities in the language arts areas. Dr. Connolly noted that Student tended to be easily distracted, inattentive and disorganized without supervision. Recommended was a small, self-contained classroom setting with a learning disability orientation and remedial assistance. (Exh. P-7)
· A January 1993 WPS Educational Testing Summary was prepared by Mrs. Gerth, Student’s then (i.e., fifth grade) special education teacher. Ms. Gerth characterized him as a responsible, caring and dependable Student who tries very hard and always gives “110%”. She noted that he tends to be highly distractible. Overall testing revealed his performance in language arts areas to be at a low fourth grade level, with a high fourth grade equivalent level in math. Ms. Gerth recommended Student’s continued participation in special education programming, including intensive reading, intensive skills, teamed math, in-class spelling support and academic support. She further noted his tendency to become nervous when confronted with new assignments, and recommended that he try to relax, enjoy school and the learning process, and improve confidence in himself as a capable learner. (Exh. P-9)
· A March 1993 Speech and Language Evaluation conducted by WPS found Student to present with average receptive and expressive language abilities, but noted weaknesses in auditory memory and processing areas. Recommended was continued resource room support, as well as the use of visual and auditory cues and repetition of instructions, in order to insure Student’s understanding of the task presented. (Exh. P-10)
· In February 1996, Student was administered the Woodcock Reading Mastery Test by his eighth grade language arts teacher. He achieved the following grade equivalent scores: Word ID– 5.7; Word Attack– 7.9; Word Comprehension– 5.9; Passage Comprehension– 9.7; Total Reading– 6.8. The examiner noted that while Student may experience difficulty identifying words in isolation, he is much better able to figure them out when placed in meaningful context. Further noted was that he had a strong understanding of most common phonics rules and patterns, and that direct instruction in phonics was not recommended at his age level. (Exh. P-11)
· A March 1996 Educational Assessment performed by WPS revealed that Student would have a difficult time processing information in a classroom without visual assistance to guide him, found his written language abilities to fall within the average range, math skills to be two years below grade level, and spelling skills to be more than four years below grade level. Recommended were continued academic support in the resource room, use of a multisensory approach with manipulatives, and extra time as needed for tests. (Exh. P-12)
· In September 1996, Allison Morgan, Ph.D., saw Student at CHMC for a Neuropsychological Assessment. Her report noted that his overall cognitive ability, as measured by the WISC-III, was within the average range (VIQ-100; PIQ-89; FSIQ-94). Dr. Morgan’s evaluation further found that Student’s ability to understand and recall more complex verbal information was below average for his age and that he had difficulty integrating and organizing visual information. It revealed him to be achieving in the low average range for reading/word recognition, while manifesting a grasp of phonetic rules, the below average range for spelling, the average range for application of math concepts and the low average range for math calculations. The examiner concluded that Student was a compliant adolescent invested in his performance, whose neuropsychological protocol was consistent with a neurobehavioral disorder manifested by difficulties in emotional adjustment, as well as difficulties processing, organizing and recalling complex information, with a particular impact on linguistic skills. Dr. Morgan further noted that while Student had been described in the past as having behaviors often associated with ADHD, at this time, in her opinion, such behaviors may be secondary to components of his neurobehavioral disorder, e.g., inattention may reflect mental fatigue; organizational difficulties may be attributable to difficulties integrating information; and, if he is filtering thoughts related to anxiety or depression, he may not attend well.
Dr. Morgan wrote that increased success at school is crucial to increasing Student’s self-esteem and sense of competence. Her recommendations included the following: regular psychiatric care (including medication management and therapy); structuring content, providing structure to prompt recall, limiting the amount of information to be processed at one time (e.g., listing steps of a multiple step task), organizational assistance (e.g., posting assignments, recording same in a notebook which can then be checked by a teacher), managing time for assignments (e.g., breaking down long range assignments, keeping a calendar), providing breaks during extended effort, allowing him to carry a minimum load at school, encouraging him to participate in extra-curricular school activities continuation of resource room support, and placement in structured classes with dual teachers/assistants. (Exh. P-13)
· On February 4, 1997, Dr. Morgan authored a letter to the Special Education Department at WPS (Exh. P-14), emphasizing Student’s status as a highly vulnerable and stressed young man, who requires a comprehensive individualized educational plan to address his complex learning needs. The letter continues that this will be critical to his academic progress as well as to his emotional well being. Dr. Morgan further wrote that intensification of support services from those delivered in the past, in keeping with the recommendations of the September neuropsychological report, should be instituted as soon as possible. She went on to write that Student’s progress should be carefully monitored, and if his stress level and academic performance do not improve, more intensive special education services must be considered.
· A February 3, 1997 letter from Robert Schulte, M.D., who had then been Student’s psychiatrist for three years, stated that some of Student’s more prominent symptoms include anxiety and dysphoria, impairing multiple spheres of functioning. He noted, in particular, that Student’s academic functioning has increasingly suffered. Dr. Schulte went on to write that it is essential that additional resources both in and out of school be provided in timely manner in order to diminish the stress and sense of failure that Student is experiencing. Without such intervention, the Dr. opined, Student’s impaired functioning will increase in magnitude, and an out of school placement will become necessary. (Exh. P-15)
· In May 1997, Student underwent an educational evaluation performed by Ms. Peck, which consisted of a set of tests from the Woodcock-Johnson Psycho-Educational Battery Revised Tests of Achievement. At this time he was 15 years 5 months of age and in grade 9.8 (See Exhs. S-2 a, b.) Test results may be summarized as follows: Broad Reading: within the average range-grade equivalent 7.9, age equivalent 13-3; Reading Comprehension: within the average range-grade equivalent 9.0, age equivalent 14-5. The examiner concluded that Student would find the performance demands of grade level/age level tasks involving reading comprehension manageable, however grade/age level tasks involving broad reading would be difficult.
Additional scores reported by Ms. Peck include the Stanford Diagnostic Reading Test, on which Student achieved a comprehension grade equivalent of 6.6 and a vocabulary grade equivalent of 8.2. (Exh. P-4)
· An Educational Evaluation was performed at Franciscan Children’s Hospital on December 5, 1997. (Exh. P-16) Results of testing indicated that Student was functioning in the average range for his age in listening comprehension, vocabulary skills, and components of reading comprehension (syntactic similarities and sentence sequencing). His performance was in the low end of the average range on the test of word attack/phonic analysis skills and math computation skills. Performance on phonic analysis and decoding indicated areas of difficulty, and performance on single word identification, oral reading rate and accuracy, silent reading comprehension, spelling and math application were below the average range for his age group. Overall performance on a written expressive language task revealed areas of difficulty. The evaluator concluded that Student’s performance was consistent with a learning (reading) disorder. Recommendations included: intensive intervention in the area of reading, including five forty-five minute sessions per week of individualized reading instruction utilizing a multisensory approach; direct instruction in strategies to strengthen reading comprehension, e.g., pre-reading, surveying, reciprocal questioning techniques, semantic mapping and outline skills; utilization of a process approach for written expressive language instruction; integration of reading and writing instruction; emphasis on math application skills, with classroom modifications in math class, such as preferential seating, allowing extra time for completion of tests and assignments, and frequent comprehension checks by teacher. Speech and language and psychological evaluations were further recommended.
· A February 1998 speech and language evaluation performed by WPS found that while some of Student’s language skills fell within the average range for his age, difficulty was noted in word meaning, syntax and auditory processing, with the examiner further indicating that areas which could impact Student’s academic success relate to classroom demands of comprehending lectures and taking notes. Speech and language support within the classroom or in individual sessions was recommended, with a focus on developing vocabulary skills, language comprehension, making inferences, time management/organizational skills, auditory processing and word retrieval skills. (Exh. P-17)
· Student was administered the MCAS tests in May 1998, without modifications or accommodations. His English Language Arts, Mathematics and Science and Technology scores all were within the failing range. (Exh. P-21)
· In a December 1998 letter, Clinical Psychologist Keith Cohen, Ph.D., wrote that he has been working with Student since August 1998. He summarized Student’s mental health history as including psychiatric treatment in the past with Dr. Schulte, diagnoses including overanxious disorder and dysthymia, and the use of prescription medications (initially imipramine; currently Tegretol and Zoloft). The doctor went on to indicate that Student’s mood currently appears much improved from past reports of depressive features and that there are no indications of any major mental illness; however, Student was noted to present with symptoms consistent with anxiety disorder, and probable borderline attention deficit disorder. According to Dr. Cohen’s letter, Student had conveyed to him that he is concerned with and frustrated by his academic performance, and that his educational experiences over the years have not proven helpful in assisting him with his learning problems.
Dr. Cohen’s letter expressed concerns with the adequacy of resources available to Student within Walpole, particularly with respect to reading services. He opined that many of Student’s problems over the years have developed secondary to his learning disabilities and have impacted on his confidence and self-esteem, leading to periods of emotional and behavioral difficulty. He recommended an educational program offering small, intensive individualized remedial services, within an environment that is not stigmatizing and helps to foster confidence and enthusiasm for learning. The Carroll and Landmark Schools were suggested as highly desirable placements to consider. Dr. Cohen suggested that such programs would best serve Student’s educational, social and emotional needs. (Exh. P-18)
· Erik Tyler has provided private auditory conceptual learning therapy to Student since October 1997, having seen him for a total of approximately 62 sessions to date. Mr. Tyler holds no educational certifications, however he has received training in auditory conceptual learning therapy. He has also attended meetings with Walpole School staff regarding Student.
This witness described the service he provides as a technique for students who have auditory processing deficits, which technique utilizes visual images. He testified that Student’s modality for learning is visual/conceptual as opposed to auditory, and thus, in working with him, he utilizes as little oral language as possible, emphasizing instead visual and multisensory presentation. Mr. Tyler opined that Student would not learn well through the exclusive use of a methodology (such as Orton-Gillingham) which relies strictly on rote drill and repetition. This witness further testified that in order to keep Student current with his work, teach him global learning strategies, and fill in gaps in content material, he needs more intervention than the one session per week of therapy which Mr. Tyler is currently able to provide.
This witness acknowledged that Student still reports frustration within the school setting, although he is trying to utilize skills taught in therapy within such setting. (See also Erik Tyler’s June 1998 report, Exh. P-19, which reporting results of his October 1997 screening of Student, description of services furnished, progress to date, and recommendations. This report, in pertinent part, found Student to present with deficits in auditory memory, language processing skills, vocabulary and general knowledge deficits, with a “remarkable strength in visual learning.” It was recommended that Student’s learning environment be a visual one, and that continued individualized image-based therapy be provided.)
· Student’s mother testified regarding his educational history. She stated that in his early elementary school years he did not get sufficient help from the school system, and that by his second grade year she hired an advocate in order to secure additional services for him. This witness indicated that during elementary grades Student was always nauseous before going to school, and that she took him to see a psychiatrist, Dr. Schulte, to deal with this issue. He was placed on imipramine in fourth grade, however his nausea before school continued into his high school years.
Mother recounted a conversation with Student’s math teacher in eighth grade in which the teacher informed her that she was not able to give Student the help he needed. Parent characterized Student’s ninth grade year as one in which he was overwhelmed, disorganized and doing poorly. She explained that he continued to take medication, saw a mental health clinician, and was nevertheless having so much academic difficulty (e.g., he was failing history) that she hired a tutor to assist him. She went on to testify that the private tutoring was, in her opinion, beneficial, citing the fact that as a result of the private tutoring his history grade improved to a B, and further that Student informed her that the methodology used by the tutor was more helpful than that used by his resource room teacher. However, when she requested that the school system contribute to funding the tutor, Walpole declined. This witness testified that she was informed by Mrs. Peck, Student’s then resource room teacher, that she thought the root of his difficulties was that he did not try or put forth the effort needed to succeed. Mother noted that no reading help was furnished Student during this year despite the fact that she requested same and that it was recommended by Children’s Hospital and Dr. Schulte. (Exhs. P-14,15)
When questioned regarding Student’s absences during his freshman year, this witness responded that there were testing and doctors’ appointments he had to attend. She acknowledged that she did take him out of school for a family vacation just before exams, explaining that he was under a great deal of school-related stress.
In addressing Student’s 10th grade year (1997- 98), Mother testified that Walpole continued its inflexible stance, and that as a result, Student experienced anger and frustration. Parent recounted that she again sought private help for her son, and secured the services of Mr. Tyler. She indicated that she had testing performed at Franciscan Hospital during that year, and shared the results with Walpole; however, no additional services were furnished as a result of same. She further noted that her repeated requests for summer services were denied by the school system.
Mother indicate that she hired Ms. Downey-Tipping to act as her advocate, and attended a spring 1998 meeting with Ms. Tipping, Mr. Tyler and Walpole staff. Walpole refused to implement the type of therapy provided by Mr. Tyler, and it was the continuing position of Walpole staff that Student could do the work expected of him if he wanted to. Mother also reported an on-going battle with the school for weekly reports, adding that they nevertheless have not been furnished on a consistent basis.
This witness acknowledged that she again took Student on a family vacation before his final exams sophomore year. She explained, however, that only four days of school were missed as a result.
Mother testified that Student currently sees Dr. Cohen, a clinical psychologist, to address emotional issues secondary to school problems. She further testified that she has visited both the Carroll and Landmark Schools, and that while Student initially did not want to attend a private program as he did not want to leave his friends at WHS, he is now in favor of attending either Landmark or Carroll as he wants to prioritize his education.
· Student testified with respect to the services he currently receives both in school and privately. He indicated that he sees Dr. Cohen every other week to discuss his problems and that he sees Mr. Tyler for tutoring, which service, in his view, is more beneficial than the resource room assistance provided at school. He went on to state that it has been difficult to carry the skills learned with Mr.Tyler into the school setting, however it is currently becoming somewhat easier for him to use visualization at school.
Student described his current program at WHS as including courses in English, Reading/ Writing Lab, Field Ecology, Geometry, History and Gym, as well as Resource Room services. He characterized Reading /Writing Lab, which meets three times weekly, as a class of 6-8 students, in which a repetition method is utilized by the teacher, Mr. Powers. He indicated with respect to his resource room services in math and reading/language that there are distractions in the setting (e.g., students with behavior problems; a lot of talking) which make it difficult for him to maintain his concentration. Student acknowledged that he has been offered additional help after school in math, both through the resource room teacher and the regular education math teacher. However, the resource room teacher runs the school store after school hours and therefore the service is provided in the store, a distracting environment in which he can’t concentrate. He added that the math teacher’s assistance period involves other students, similarly making it difficult for him to concentrate.
Student acknowledged that he does not do his homework consistently, explaining that this is the case because he often does not understand it. He further acknowledged approximately 20 absences in both his freshman and sophomore years at high school, noting, however, that even when he is present in school he often doesn’t understand what he is being taught.
This witness testified that he has visited both the Carroll and Landmark Schools, that he would be willing to attend Carroll even if it meant extending his high school career an additional year, and further that he would attend Landmark even on a residential basis if it would help him to be successful.
· Mary Downey-Tipping testified via speaker phone. Ms. Downey-Tipping is a certified regular education teacher and a certified guidance counselor. She first became involved in this case last year in the capacity of advocate. She never tested Student nor has she observed his program at Walpole. She has, however, reviewed his records, attended three TEAM meetings, two mediations, and has spoken with Student on several occasions. She has observed the Carroll School program (October 1998) and is further familiar with the Landmark School.
This witness stated that her opinion with respect to the program proposed by Walpole was based on the program embodied in the February 1998 IEP as written (Exh. P-5), which IEP does not make provision for any inclusion (co-taught) classes or consultation between regular and special educators.
In her October 1998 report (Exh. P-20), Ms. Downey-Tipping noted that Student’s reading and writing skills remain limited and his self-esteem continues to be fragile. She went on to write that he does not have sufficient literacy skills to support success in a mainstream educational setting, and that it is not feasible to modify the regular high school curriculum within the classroom for him as classes must be geared to the majority of non-disabled students. She went on to write that Student needs a consistent, comprehensive language based program throughout his school day, including multisensory, structured phonics based reading tutorials on a daily basis, modifications of the regular curriculum, support within the mainstream classroom and cutting edge voice-activated technology to enable him to write to his potential. This was not, in her opinion, being furnished pursuant to Walpole’s IEP. A process approach to writing and assistance with planning/organizing were further recommended.
This witness testified that her recommendation of the Carroll School5 was premised on the following factors: Student’s self-esteem is very fragile and it would therefore be beneficial for him to be with similar peers, experiencing similar learning difficulties, as in such an environment he would not be afraid to participate; he is still invested in learning, but it is questionable how much longer this investment will last; given his learning deficits as well as his strength as a visual learner, the Carroll School would offer him an appropriate, consistent language based environment using a multi-modal approach; at Carroll he would have assistance as needed within the classroom, as opposed to his high school program in which he is required to remember what he didn’t understand in class and then bring it back to the resource room for help.
In addressing the issue surrounding the administration of the MCAS to Student, this witness testified that since no modifications for testing are written into his IEP, modifications cannot be made in administration of the MCAS.
· Mary Sullivan Kelley is the Director of Special Education for WPS. She holds a doctorate in Educational Administration, and is certified as a special educator, reading specialist, school psychologist and guidance counselor. Dr. Kelley has participated in some of Student’s TEAM meetings, has met with Parents, has participated in mediations, and has reviewed the testing performed by both Walpole and outside evaluators.
Dr. Kelley testified that Parents’ on-going requests for tutoring were indeed declined as it was her opinion that the public school program was meeting Student’s needs. She further testified that she was a participant in the February 1998 TEAM meeting, and that she reviewed each recommendation made by Franciscan in order to determine where within the public school program each could be met. She did not, however, agree with the need for Orton-Gillingham services, as in her opinion, Student did not fit the profile of need (i.e., he already had the basic skills and rather needed to learn how to apply them). Therefore, multi-modality techniques were utilized with him by Walpole staff. This witness further indicated that the option of Student’s participating in a language skills class was discussed at that meeting, but all agreed that it wasn’t in his best interests to change his schedule at that point in the school year.
Dr. Kelley testified that subsequent to the February 1998 TEAM meeting, two mediations were held (April and June 1998), as were additional meetings. She stated that offers were made by Walpole to amend Student’s IEP and to re-convene the TEAM to write the amendment, however Parents declined. Additional services have however been implemented since the fall of 1998 and thus Student’s actual program, as currently delivered, is not fully reflected on the last IEP.
· Carol Peck is a learning specialist and the Coordinator of the Special Needs Department at WHS. Ms. Peck holds certification in both elementary education and special education. She has participated in all or most of Student’s TEAMs since he entered WHS, has attended informal meetings regarding Student, and has reviewed all evaluations done during his high school years. She was his resource room support teacher as well as the special educator in his inclusion Biology class during freshman year (1996-97), did not provide direct service during his sophomore year, but evaluated him in May of 1997 (Exhs. P-4, S-2 a, b), and currently (i.e., 1998-99) is both his liaison and provides him academic skills support in the resource room five times per seven day cycle.
Ms. Peck described Student as presenting with weaknesses in organization, sequencing, writing, math and concentration (i.e., at times he gets overloaded, is distractible, has difficulty maintaining attention and staying on task). She attributed the latter difficulty to a variety of factors, including typical adolescence and difficulty of work presented to him. Ms. Peck indicated that Student requires extra time to complete tasks, needs to have questions restated or clarified, and does better when he is given a visual model for reference.
In this witness’ opinion, Student has the academic ability to do content class assignments/homework, however at times he simply doesn’t do them; and given that homework can comprise 20 percent of a student’s grade in a given course, Student’s grades suffer accordingly. She added that absences also have had a large impact on his academic performance, and this was evidenced when she worked with him in grade nine (during which year he was absent 23 days). She explained that his academic performance was inconsistent (i.e., at times he did what was expected of him, at times he stayed after school with her and worked hard to catch up; however, at times he didn’t turn in assignments, and at times he fell behind in his work owing to absences). Therefore, Student’s grades fluctuated from one marking period to another. This witness noted particular concern regarding Student’s missing school for family vacations given his academic difficulties, especially when such absences occurred near the end of the academic year.
When questioned on cross-examination as to whether the inconsistency in Student’s performance is attributable in any part to his learning disability and/or emotional issues, this witness responded that while he does have a learning disability, falling behind in his work is compounded by other factors as described above (e.g., inconsistent effort and absences).
Ms. Peck described her work with Student as addressing organizational skills (e.g., he was required to keep a specific assignment notebook/planner; she assisted him in breaking down long term assignments; she worked with him on rough drafts of papers). She further worked with him on study guides and other materials for content courses, review and preparation for tests, she devised accommodations for test taking (extra time, verbal cues, e.g.) and utilized techniques such as concept mapping and flash cards (entailing pictures and words) with him. In addition, she maintained contact with his other teachers as well as his family.
Ms. Peck described her current role as providing academic skills support, including work on organizational skills and study strategies. Reinforcement is also provided in the content areas of Geometry and English, an assignment book and a learning journal are utilized, study guides are prepared, and flash cards (with a word on one side and a picture on the other) are further utilized with Student. She testified that Student has shown good effort to date in his work with her this year.
When questioned concerning Walpole’s response to Dr. Morgan’s recommendations, this witness indicated that at the March 1997 TEAM meeting to consider same, academic support services were increased, counseling with the school psychologist was offered, as were teamed (co-taught) classes for all his academic content courses. At the time of the May 1997 annual review Team meeting, Student’s average in both his English and Math courses was approximately 80. In order to give him credit and positive reinforcement for his positive work in these areas, and to accommodate parental desire to offer him greater challenge, it was decided that he would not participate in any co-taught classes, and would move up a level in English and Math. Support services were attendantly increased to eight periods per week.
In addressing the MCAS testing matter, Ms. Peck testified that the mandatory addendum to the IEP was sent to Student’s Parents, reflecting modifications/accommodations that could be made during test administration (e.g., small group setting). Parents declined such modifications.
· Kathryn Colvario is a language specialist at WHS. She holds dual certification in special and elementary education and has taken the visualizing/verbalizing modality course given by Lindamood Bell. Ms. Colvario reviewed Student’s records, participated in his eighth grade transition meeting, provided him direct service during his sophomore year, and currently is one of his academic support providers.
Ms. Colvario described Student as presenting with a language processing/auditory processing disability, which makes reading and reading comprehension difficult for him. She went on to testify that while he has basically mastered most of his phonetic/decoding skills, he has not developed automaticity with respect to these skills; this, in Ms. Colvario’s opinion, accounts for some of the variability in his performance. She further described Student as having a slow reading rate, an inability to maintain his own external structure and a lack of independence in completing assignments. This witness added that once Student falls behind in his work he becomes stressed and overloads.
Ms. Colvario described the service she provides Student,6 indicating that it entails academic support in reading and reading comprehension. Skills addressed include outlining, finding the main idea/supporting details in text, categorizing and writing summaries; techniques utilized include concept mapping, visualization and an organizational notebook system. She further indicated that she coordinates with Student’s teamed English teachers, and uses content material from both English and History as a medium for application of the strategies she teaches Student to improve his reading rate and comprehension.
This witness testified that Student currently continues to demonstrate a great deal of variability in focus, effort and academic performance. She acknowledged that she is not certain as to the etiology of this variability, noting that various suggestions (such as ADD, depression) have been offered by evaluators over the years.
When questioned as to whether an Orton-Gillingham approach would be beneficial for Student, Ms. Colvario responded that he really has acquired most of the skills that are taught through that methodology. In her opinion, what he needs to learn now are reading strategies and how to apply the skills he has acquired on a consistent basis. Ms. Colvario further testified that she has spoken with Mr. Tyler, and that the methodology he uses is very similar to features of the Lindamood- Bell methodology, which she in fact utilizes in her work with Student.
· Student’s high school transcript reveals the following regarding his performance to date at WHS: 1996-97 (grade 9), passed all courses; 1997-98 (grade 10), failed algebra, passed all other courses; 1998-99 (grade 11), as of the end of first semester (February 1999) Student was running a grade of 71 in English, 72 in Reading Lab, 67 in History, an “I” in Geometry, a Pass in academic skills, a 66 in Field Ecology and an 81 in Health. Attendance records revealed two absences, one tardy and four days dismissed. (Exhs. P-1, S-1)
FINDINGS AND CONCLUSION
Student is an individual with a disability, falling within the purview of the IDEA and M.G.L. c. 71B. As such, he is entitled to a free, appropriate public education, and an IEP which is reasonably calculated to assure his maximum feasible educational development in the least restrictive environment consistent with that goal. David D. v. Dartmouth School Committee , 775 F.2d 411 (1985) Neither his status nor entitlement is in dispute. At issue in this proceeding is programming and, ultimately, placement. Parents assert that the special education services furnished Student by Walpole Public Schools are insufficient, inappropriate and have failed to maximize his educational development. They argue that it has therefore been necessary to secure private tutorial services for Student, which expense should be borne by the school system. They further contend that Student currently requires the more intensive, specialized programming offered by a private school for language disabled students, in order to maximize his educational development. In this regard, they have identified both the Landmark and Carroll Schools as potential placements. Walpole asserts that its special education programming has been, and continues to be, responsive to Student’s special education needs, that costs of tutorial services furnished by the private tutor are therefore not the responsibility of the school system, that Student’s academic performance has been compromised by his inconsistent effort and absenteeism, and that Student’s current program, as implemented during academic 1998-99, is reasonably calculated to assure his maximum possible educational development in the least restrictive environment consistent with that goal.
It is my determination, based upon a preponderance of the evidence presented and consideration of applicable federal and state statutes, regulations and case law, that the program currently implemented for Student7, amended in accordance with the terms of this Decision, so as to provide his special education reading support services8 on a 1:1 basis in a distraction free environment, is reasonably calculated to assure his maximum possible educational development in the least restrictive environment consistent with that goal. I further find that Parents’ action in privately securing individual reading services for Student was reasonable and appropriate given the circumstances of the instant case. Walpole shall therefore reimburse Parents for costs of such services from February 1998 (the effective date of the IEP under review) to date, exclusive of summer 1998. Florence County School District, Four v. Carter , 510 U.S. 7 (1993); Doe v. West Boylston School Committee, et al. , 28 IDELR 1182 (1998). Upon implementation of individual reading support services for Student within the public school setting, Walpole’s financial responsibility for privately secured services shall cease. My reasoning follows.
The program currently implemented by Walpole emerges as responsive in significant respects to the recommendations of experts for Parents and school alike regarding requisite special education services for Student. Consider the following. The CHMC report of neuropsychological evaluation, authored by Dr. Morgan, recommends in pertinent part, that Student be furnished organizational assistance, direction in managing time for assignments, continuation of resource room support services and placement in classes with dual teachers/assistants. (Exh. P-13) The Franciscan Children’s Hospital report, Exh. P-16, recommends that Student receive intensive, individualized reading instruction utilizing a multisensory approach, direct instruction in strategies to strengthen reading comprehension (e.g., semantic mapping, outlining), utilization of a process approach for written language instruction, integration of reading and writing instruction, and modifications within the classroom. The recommendation contained in the February 1998 speech and language evaluation conducted by WPS, Exh. P-17, was that Student be furnished speech and language support either within the classroom or in individual sessions. And, Ms. Colvario, a certified special educator who has had extensive experience working with Student and has reviewed his records, testified that Student should receive reading services which address reading strategies and application of such strategies, rather than be furnished an approach which focuses primarily on basic phonetic/decoding skills.
Walpole’s program must thus be assessed with reference to the above-enumerated recommendations of credible experts. It is clear that the public school program in fact offers Student the on-going resource room support services as recommended by Dr. Morgan, supra . In the context of Student’s resource room academic skills support sessions, organizational skills are addressed, assistance is furnished in breaking down long term assignments into manageable segments, study strategies are taught, accommodations for test taking are devised and reinforcement in content courses is provided. (Refer, e.g., to Ms. Peck’s testimony, attesting to same and enumerating specific strategies and methods used, such as maintaining an assignment notebook; use of a learning journal; concept mapping; the use of flash cards with a word on one side, a picture on the other.) The public school program further offers Student speech and language support within the classroom setting of his History, Ecology and Reading/Writing Lab classes, as recommended by his most recent speech and language assessment. (See Exhs. P-17, S-3, and refer to the testimony of Ms. Peck.) Furthermore, consistent with the recommendation of CHMC (Exh. P-13), courses staffed by dual teachers/assistants are provided Student in both teamed junior English (co-taught by a regular and a special educator) and Reading/Writing Lab (staffed by a special educator and an aide.) A process approach to writing is utilized in the small specialized Reading/Writing Lab class, where integration of reading and written instruction occurs (testimony Dr. Kelley), this in keeping with recommendations offered by Franciscan Children’s Hospital. (Exh. P-16) Integration of content and specialized instruction also takes place in Student’s academic support sessions, through coordination between special and regular education staff. (Note, e.g., Ms. Colvario’s testimony regarding the use of content material from English and History courses as the medium for instruction in her sessions with Student.) Finally, specialized reading instruction9, a service recommended by Franciscan Children’s Hospital, is furnished Student by Ms. Colvario in reading strategies and reading comprehension skills, utilizing techniques including semantic mapping, outlining and visualization. (Refer to testimony of Ms. Colvario; see Exh. P-16.)
While the services furnished Student by Walpole thus comport in major respects with the recommendations of credible experts, I find that the program fails to provide Student an optimal setting for delivery of academic skills support services. The record is replete with documentation of Student’s distractibility, and difficulty concentrating and maintaining focus. (See, e.g., Exh. P-9, January 1993 report prepared by his fifth grade special education teacher; see also Exh. P-13, CHMC report; and see Exh. P-18, Dr. Cohen’s letter; refer to testimony of Ms. Peck.) Student’s own testimony in this regard was particularly compelling. He stated that the effectiveness of the academic support services furnished are compromised by the distractions in the environment, making it difficult for him to concentrate on what is being taught.
I therefore find that given Student’s profile, it is inappropriate to provide him a service as critical as specialized reading instruction in a group setting, where the teacher’s time is divided among other students and there are distractions present within the environment. Delivery of the service in such manner is neither consistent with the Franciscan Hospital recommendation of intensive, individualized reading intervention, nor can it be viewed as reasonably calculated to maximize his educational development. Walpole shall therefore amend Student’s current program so as to provide for delivery of his specialized reading instruction on a one to one basis, in a distraction free environment. Walpole is further directed to take all steps necessary to minimize distractions which may be present in the resource room setting during Ms. Peck’s provision of academic skills support services to Student.
I further find that because Walpole’s program failed to offer Student specialized reading instruction in a setting conducive to maximizing his educational development, Parents action in securing private individual reading services was appropriate, and that the costs of same must therefore be borne by the public school. In this regard I have not failed to consider that the provider Parents secured is not credentialed in either special education or reading. However, given the facts of the instant case, this is not a bar to reimbursement. Florence County School District, Four v. Carter , 510 U.S. 7 (1993); Doe v. West Boylston School Committee, et al. , 28 IDELR 1182 (1998). I note first that Mr. Tyler was trained and experienced in auditory conceptual learning therapy. I note further that the specific methodology he utilized with Student, while not entirely consistent with the approach utilized by Walpole, did include many of the techniques endorsed by Walpole personnel as appropriate for Student. (Consider, e.g., Ms. Colvario’s testimony indicating that in her work with Student, she utilizes visualization techniques and implements aspects of the Lindamood-Bell methodology which, based upon her conversation with Mr. Tyler, is similar to the methodology he uses; consider also Ms. Peck’s testimony concerning the use of flash cards which feature a word on one side and a picture on the other, and compare with Mr. Tyler’s testimony describing his methodology as utilizing visual images and attaching them to vowel sounds/words.)
In endorsing the public school program I have not failed to consider the evidence offered by Parents which affirmatively recommends either a Carroll or Landmark School placement for Student, to wit: Ms. Downey-Tipping’s testimony and report, Exh. P-20, and Dr. Cohen’s December 1998 letter, Exh. P-18. I note, however, the following, in assessing the weight to be afforded this evidence. Ms. Downey-Tipping entered this case in an advocacy role, she holds no special education certification, and she testified that her appraisal of Walpole’s program was premised upon the IEP (Exh. P-5) as written, without consideration of the program as actually implemented. With respect to Dr. Cohen’s opinion, it is unclear what information he had about the full range of services and resources available to Student within Walpole when he offered the placement recommendation contained in his letter.
Prior to closing, it must be noted that the last formal IEP proposed for Student by Walpole was written in February 1998. Nothing contained in this Decision shall be construed as relieving Walpole of its obligation to conduct a review of Student’s progress under the rubric of the current program, perform updated evaluations (if necessary in order to fully assess Student’s current educational status), and convene a TEAM meeting to propose an IEP for Student for the 1999-2000 year.
Walpole Public Schools shall amend the IEP as written so as to reflect those services implemented during academic 1998-99 (as embodied in Exh. S-3), shall further amend the IEP so as to provide that Student’s specialized reading skills support services are delivered on a 1:1 basis in a distraction free environment, and shall reimburse Parents for costs incurred in the provision of private reading tutorials from February 1998 (the effective date of the IEP under review) to date, exclusive of summer 1998. Walpole’s financial responsibility for private tutorial services shall cease upon implementation of 1:1 reading services by the public school. Walpole shall further take steps necessary to minimize the distractions in the resource room setting during the time Student is furnished his academic skills support services with Ms. Peck. Finally, Walpole shall conduct a review, perform updated assessments as necessary and convene a TEAM meeting in order to propose an IEP for Student for 1999-2000.
By the Hearing Officer,
Dated: May 25, 1999
By agreement of the Parties, the record remained open for filing of closing submissions, to be postmarked on or before March 17, 1999. The record closed on March 18, 1999 upon receipt by the BSEA of said submissions.
At the time of his eighth grade transition meeting, the family had not made a final decision as to whether Student would attend vocational school or WHS. Thus, the IEP makes provision for academic support services to be delivered on alternating weeks, to accommodate the possibility that Student would attend TriCounty Vocational School. (Testimony Peck)
I infer from the record Parents’ constructive consent to provision of the services currently implemented pending the outcome of due process proceedings.
According to the testimony offered by Ms. Peck, the speech and language pathologist also participates in this class for a designated number of sessions per cycle.
This witness stated that Carroll School favors a two year attendance commitment.
Ms. Colvario testified that she worked on similar skills with Student both this year and last, however during last year, she gave him approximately 25 minutes per session of 1:1 time, while this year he is serviced more within the group.
Such program incorporates the terms of the February 1998 IEP, as modified by the provisions of Exh. S-3.
I refer here to the service currently delivered by Ms. Colvario.
This instruction is provided in addition to the specialized reading services Student receives in Reading/Writing Lab class.