COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: West Springfield Public Schools
BSEA No. 02-0650
DECISION
This decision is issued pursuant to the Individuals with Disabilities Education Act (IDEA), 20 USC Sec. 1400 et seq .; Section 504 of the Rehabilitation Act of 1974, 29 USC Sec. 794; the Massachusetts special education statute (Chapter 766), MGL c. 71B; the Massachusetts Administrative Procedures Act, MGL c. 30A; and regulations promulgated under these statutes.
On August 2, 2001, Parents filed a hearing request with the BSEA seeking an order for West Springfield Public Schools to reimburse them for the costs of unilaterally placing Student at a private special education school for the school year 2001-2002.
A hearing was held on April 11 and May 22, 24, and 29, 20021 before Sara Berman, Hearing Officer, at the offices of Catuogno Court Reporting Services at 466 Main Street, Worcester, MA (April 11 only) and 1414 Main Street, Springfield, MA.
The following persons were present for some or all of the hearing:
Student’s Mother
Student’s Father
Phoebe Adams, Ed.M. Educational Specialist, Center for Children with Special Needs, Floating Hospital for Children, New England Medical Center
Peter Charland, Ph.D. Student’s therapist
Loretta Pellegrini Teacher, Curtis Blake Day School, Springfield
Barbara R. Dautrich, Ed.D. Consultant, West Springfield Public Schools (WSPS)
Donald R. Snyder Administrator of Special Services, WSPS
Rebecca Bryant Sixth Grade Teacher, WSPS
Mary E. Clay Speech & Language Therapist, WSPS
Marcia Devenitch Speech & Language Therapist, WSPS
Lynda A. Scheer Special Education Teacher (Grade 6), WSPS
Rosemary B. O’Connor Fifth Grade Teacher, WSPS
Raymond E. Snow, Jr. School Psychologist, Evaluation Team Leader, WSPS
Andrea McGovern Parents’ advocate
Derek M. Beaulieu, Esq. Parents’ attorney
Regina W. Tate, Esq. WSPS attorney
The record consists of approximately nine hours of tape-recorded testimony as well as Parents’/Student’s exhibits P-A through P-R, and the School’s Exhibits S-1 through S-80. Written closing arguments were received on June 19, 2002, and the record closed that day.
ISSUE PRESENTED :
Was the IEP and placement that WSPS offered Student for the 2001-2002 school year reasonably calculated to provide Student with maximum feasible benefit in the least restrictive environment?2
If not, was the program provided by the Curtis Blake Day School, where Parents’ unilaterally placed Student for the 2001-2002 school year, appropriate, such that Parents are entitled to reimbursement for the costs of this placement?
FINDINGS OF FACT
Based on the testimony of witnesses and the documents admitted into evidence, I make the following findings of fact:
· Student is twelve years old (D.O.B. September 15, 1989) and has lived with his parents in West Springfield since about 1996. (Mother, S-10) Student was enrolled in the West Springfield Public Schools (WSPS) in September 1997 for second grade, after spending kindergarten and first grade in parochial school. (Mother; S-68 –71). From second grade (1997-1998) through fifth grade (2000-2001), Student attended the Fausey Elementary School in West Springfield. (Mother, S-6; S-15–71) Student spent second and third grade in inclusion classrooms and fourth and fifth grades in a program that combined intensive language based instruction on a pullout basis with inclusion for math, social studies and science (the ILBI program). (Mother) For the 2001-2002 sixth grade school year, Student attended the Curtis Blake Day School (CBDS or Curtis Blake), a private, Chapter 766 approved day school in Springfield for children with language-based learning disabilities, where his parents had unilaterally placed him. (Parents; P-M; )
· Student’s profile is not in dispute. He is a likeable, hardworking child who enjoys many activities, including camping trips and projects with his father. He has good relationships with his parents and typical relationships with his two siblings. (Charland; Pellegrini; Mother; Father) Student’s cognitive ability as measured by standardized tests falls within the low average to average range. (S-49)
· Student has a well-documented, significant and complex language-based learning disability, as well as ADHD, fine motor deficits, and a mild conductive hearing loss in his left ear. (S-49; P-E; P-F; Adams; Mother; Dautrich) These disabilities prevent Student from reading, writing, speaking, and understanding language at a level commensurate with his cognitive ability and grade placement, impeding his access to grade level curriculum as well as his academic performance. (S-49; Charland; Dautrich) Student also has communication and social difficulties due to pragmatic language deficits. (Adams, Dautrich, Charland, Pellegrini, Snow; S-45) Student’s areas of strength include math, general knowledge, listening comprehension, reading comprehension (with some limitations, Adams; P-F), and use of context and background knowledge to aid comprehension. (Dautrich; Devenitch; P-F) At the end of fifth grade (spring, 2001), Student functioned at roughly the second to fourth grade level in various facets of reading, language arts, spelling and written expression, depending on the specific skill measured and the test instrument used. (S-12; P-E; P-F; Adams, Dautrich)
· In addition to his learning issues, Student has suffered periods of anxiety, emotional upset, lack of confidence in his abilities, lowered self-esteem, anger and frustration in relation to school and to his communication problems generally. Student’s lack of confidence in his academic ability started early in his school career (S-54, 62), but the anxiety and frustration became an issue at home starting in around the fourth grade, and escalated in fifth grade. (Mother, Charland, Snow, S-45, S-11) In school, at various times, Student has shown avoidant, insecure, or off-task behavior. Beginning in fifth grade (SY 2000-2001) this behavior worsened, and, in addition, Student started being verbally disruptive and disrespectful in school. He interrupted others, refused to work, and made inappropriate comments.3 (Mother; Charland; Snow; S-11) In fifth grade Student also began to have problems at home, where he would yell, throw objects, refuse to do homework, interfere with his brothers’ homework, say that he was “stupid,” and fight with his mother when she tried to get him ready for school. Student also began to complain that peers were picking on him in school. (Mother; Charland)
· Student has had an IEP since enrolling in the WSPS in the second grade (SY 1997-1998) (Mother, S-54). The initial IEP provided for speech/language and OT services. (Mother, S-51) The IEP for third grade, issued in July 1998, added modifications in presentation of work and help with organizational skills. (S-51)
· This third grade IEP was amended in October 1998 after a neuropsychological assessment revealed a learning disability affecting reading, spelling, and math.4 The amendment added 45 minutes per day of direct academic services, delivered in the inclusion classroom, as well as additional accommodations and modifications, including, e.g., small group instruction in reading, spelling, and math; simplified directions; oral testing; preferential seating; reduced written work; shortened spelling lists; substituting projects for some written work; a quiet area for independent work; and visual and verbal cues from the teacher. (S-45.) OT and speech/language therapy were the only pullout services (Id.)
· Student did well at the beginning of third grade in a two-teacher inclusion classroom. (Mother) Quarterly progress reports indicated growth in comprehension and math, as well as work toward strengthening phonetic skills. (S-38) As the year progressed, however, one classroom teacher told Parents that Student’s skill deficits seemed to have increased. (Mother) At the April 1999 TEAM meeting to develop Student’s fourth grade IEP, and in subsequent letters, Mother and this teacher asked WSPS to consider placing Student in the Fausey School’s Intensive Language-based Instruction (ILBI) program for fourth grade. (Mother, S-39, 40)
· WSPS had developed the ILBI program in or about 1996 to provide students with significant language-based learning disabilities5 with an in-district program that combines pullout services for reading and language arts, and inclusion for other subjects. (S-7; Dautrich). The reading/language arts component was intended to be intensive, direct, language-based instruction using research-based methodologies. (Id.) During the time at issue here, ILBI students at the Fausey School received direct, small group reading and language arts instruction in the separate ILBI classroom, using a highly structured language-based curriculum. A speech/language therapist worked with students on phonological awareness and related skills, and provided social pragmatics instruction in conjunction with a school adjustment counselor. Service providers used several methodologies to address language skills including Story Grammar Marker, Benchmarks, and LiPS. (Id.) For content area subjects (math, social studies, science), students were in an inclusion classroom, with supports including the in-class presence of the ILBI teacher or aide and the speech therapist, as well as various modifications/accommodations such as reduced written workload, help with organization, testing accommodations, etc. These supports and modifications, along with consultation among specialists and regular educators, were intended to enable students to carry over strategies taught in the ILBI classroom into the inclusion setting. (S-7, Dautrich) Students may also receive OT and/or additional speech/language services under their IEPs.6 (Id.)
· On July 12, 1999, after assessing Student’s reading and language arts performance to help, Dr. Dautrich recommended the ILBI program for fourth grade. Testing7 had shown Student to have difficulty at the phonological and word level and to need direct training to sound out words. Dr. Dautrich concluded that the Benchmark and LiPS programs offered at ILBI would be appropriate to address these difficulties.8 (S-1, 32) Dr. Dautrich also recommended strategies to enable Student to read more automatically. In the inclusion classroom, Dr. Dautrich recommended reducing reading and writing requirements and using taped texts, transcription, and oral formats to access the general curriculum because Student was reluctant to read in that setting. (Id.)
· Dr. Dautrich concluded that expectations for any child with significant difficulties in the underlying processes of reading and writing should be modest, and that these would be ongoing challenges since the neurological basis of dyslexic profile do not change. (Id.) Dr. Dautrich did not address what would constitute “modest” or expected progress for Student in particular. (Dautrich)
· In September 1999, WSPS issued a new IEP9 placing Student in the ILBI program for fourth grade. (S-30) Student received about 2.5 hours per day of small group reading and language instruction in the ILBI classroom with a special education.teacher (Ms. Chambers) and a certified speech/language therapist (Ms. Devenitch). This instruction included LiPS, the Benchmark Word Identification/Vocabulary program (Benchmark), and the Daily Oral Language grammar usage and mechanics program (Daily Oral Language). Additionally, Student received daily pragmatics instruction from the speech/language therapist and OT services for handwriting. (S-28; Devenitch) Math, social studies, and science were provided in a co-taught fourth grade inclusion class attended by all ILBI students, with accommodations such as untimed oral tests, reduced writing requirements, an Alpha-Smart for writing, and a scribe for note-taking and answering written questions. The speech/language therapist, Ms. Devenitch, assisted ILBI students within the inclusion classroom by scribing and helping them use their Alpha-Smarts (Mother; Dautrich, Devenitch, S-28) Dr. Dautrich provided consultation services to the program as a whole. (Dautrich; Devenitch)
· Student transitioned well to the ILBI placement, and became an active class member. (S-27) As of the first progress report in November 1999, Student was beginning to learn some reading/spelling strategies, was making slow steady progress with LiPS, and had improved his social skills with cueing. (S-28) He still had trouble with handwriting. (Id.) In the general classroom, Student did well in math. In science and social studies, Student tried hard, but found the reading and vocabulary difficult, especially in science. Student was able to ask for help when needed and made progress in the inclusion classroom with supports and modifications. (Id.)
· Year-end progress reports for fourth grade showed that Student had made steady progress in reading skills, reading on a second to third grade level with a capacity of four-plus. As of late May 2000, Student was asking to read aloud in the ILBI class, and read when called on in mainstream classes. Student was more focused and active than he had been the previous September. He had mastered Dolch sight words from the pre-primer to Grade 3 level, progressed to a second or third grade level in factual and story grammar questions, had increased his phonemic awareness, had progressed in using Benchmark strategies for spelling and word analysis, and had begun to apply these strategies independently. Student continued to need prodding to do his writing exercises, but did make progress in written language. (S-20)
· In mainstream math, Student made progress with content, gained confidence, and, by teacher report, his “ownership for learning is evident at times.” (S-20). In social studies, with support and modifications, Student made progress in all goal areas of staying on task and completing tasks, and earned grades of A/B-plus. In OT, Student had made progress with handwriting. (S-20)
· At home, however, Student showed frustration with school, and Mother ended up doing most of his reading homework. (Mother) The parents began thinking that the strategies Student was learning in the ILBI classroom were not consistently carried over into the mainstream class. (Mother, Father)
· WSPS conducted Student’s three-year re-evaluation from March to May 2000. Student’s mainstream teacher found that since a December 1999 medication change, Student’s achievement was good in all areas and he was staying focused.10 (S-24) His attitude was “very good,” his confidence was “improving,” his homework was always prepared, and cooperation and behavior were excellent, although he needed “constant” praise for his effort, participation and achievement. (Id.) The speech/language assessment showed that Student had low average skills in receptive and expressive single word vocabulary. He had relative strengths in auditory word discrimination, thinking and reasoning, interpreting directions, grammatical understanding of comparative relationships, and word retrieval/association skills. (S-24) Weaknesses included auditory memory, following multi-step directions, paragraph comprehension, sentence formation, and phonemic awareness. (S-24) An OT evaluation recommended further services for fine motor and visual-motor integration weaknesses. A psychological evaluation consisting of the WISC III yielded similar results to one administered in 1997 with Student scoring in the average range. (S-19) As in 1997, Student had slow processing speed and preferred verbal comprehension and spoken tasks to those requiring perceptual organization and motor responses. (S-19)
· In addition to the above assessments, Dr. Dautrich administered the Wechsler Individual Achievement Test (WIAT) and the Woodcock Word Attack subtest. (S-23) According to this testing, Student had made about one year’s progress in word attack and word recognition and spelling,11 and still had weakness in word recognition, deficits at the word level, and visual-motor difficulties. On the WIAT, as a late fourth-grader, Student scored at the early to late second grade level in basic reading, spelling, and written expression; at the early to late fourth grade level in reading comprehension and oral expression; and at the late seventh grade level in listening comprehension. (Id.) Comparison of Student’s actual performance on the WIAT with expected performance based on his WISC scores12 indicated a reading disability at the level of basic word recognition, impacting basic reading, spelling, and written expression. On the other hand, reading and listening comprehension and oral expression were at or above expected levels. (Id.) Student used compensatory strategies such as background knowledge and context cues. (Id.) Student was motivated, engaged, and focused during testing. (Id.)
· Dr. Dautrich recommended continuing ILBI for fifth grade to provide intensive language intervention, with strong support in the inclusion classroom. Recommended mainstream accommodations included reduced reading and writing demands, taped texts, oral formats, assisted note taking, untimed tests, alternative assignments, oral presentations in lieu of written work, and keyboarding instruction or AlphaSmart for writing. (S-23) Dr. Dautrich expected Student to continue progressing in ILBI, and stated that the gains might be incremental and slow. (S-21)
· Student’s IEP for fifth grade (SY 2000-2001) was essentially the same as that for fourth grade, combining the separate ILBI class taught by the special education teacher and speech/language pathologist with mainstream placement for math, social studies and science, with modifications, accommodations,13 and consultation services for the classroom teachers. This IEP provided for speech/language services over the summer of 2000. (S-18)
· Student continued in the ILBI program in the fifth grade (SY 2000-2001) with the same special education teacher, speech/language therapist, and ILBI classmates as the prior year. He was in the inclusion classroom for homeroom, math, social studies and science, and used the same fifth grade texts and materials as the rest of the class. (Mother, O’Connor, Devenitch) Inclusion math was co-taught. Additionally, there were two to three aides in the inclusion classroom during social studies, one of whom was the ILBI aide. As stated above, Ms. Devenitch also was in the classroom frequently, working with teachers and students on language-based strategies. (O’Connor, Devenitch) Ms. O’Connor frequently consulted with Dr. Dautrich. (O’Connor)
· As of November 2000, Student was participating actively in speech/language therapy and was making moderate progress in LiPS. His reading skills were progressing steadily, with Student increasing his ability to read independently with interest, enthusiasm, and comprehension. Student was also participating more in ILBI classroom activities volunteering to read aloud and join discussions. He was beginning to apply Benchmark strategies to decoding but not to independent reading. He could read independently and consistently identify the main idea, details, and sequence of events and make inferences at a 2.5 grade level. He could retell a story with Story Grammar Marker and teacher cues. Written language was also improving. (S-17; Devenitch) In the general classroom, Student did quite well in math, social studies and homeroom. (O’Connor, Devenitch)
· The ILBI program encountered problems during SY 2000-01. The special education teacher had health problems and was often absent for periods ranging from a day or two to a couple of weeks at a time. Altogether, the teacher was absent for approximately three to four months during that year. (Mother, O’Connor, Dautrich) Sometimes WSPS could provide a substitute teacher, but not always the same one. (Mother; Dautrich) At other times, there was no substitute, leaving the ILBI aide, who was familiar with the material, to cover for the absent teacher. (Id.) Towards the end of the year a potential long-term substitute was located and provided some coverage, but was not always available (Mother) The teacher’s absence was disruptive for the fifth grade ILBI class, including Student. (Dautrich, Snow) Class morale slipped, both because the teacher was often absent, and also because WSPS, for confidentiality reasons, could not tell the students much about why she was away. (Charland; Dautrich; Mother) In an attempt to provide continuity, Dr. Dautrich met with Fausey staff, including the principal, regular and special education staff, and substitute teachers, approximately 19 times during the 2000-01 school year, and also helped train the long-term substitute. (Dautrich) The daily format of the classes, by and large, did not change. (Dautrich)
· An additional problem was less than optimal communication between the regular and special education staff. (Mother) Ms. O’Connor and the ILBI instructor did not have common planning time. (O’Connor)
· Finally, at some time during SY 2000-01, the ILBI location was changed from the speech/language classroom to Classroom #10, which also was used by a group of students with visible cognitive and physical disabilities. Although the two groups were instructed separately, Student found the presence of these other students distracting and upsetting. (Mother)
· Student began developing emotional and behavioral problems during fifth grade. (Mother; Charland) At home, Student was angry and disruptive; he yelled, threw objects, refused to do homework, interfered with his brothers when they tried to study, and screamed in his sleep. (Mother) Student told his parents that he did not want to go to school because he felt he was “stupid,” that he did not like being in Room #10, that he did not like reading out loud in his mainstream classes, and that other students called him names like “stupid,” and other derogatory, disability-related terms. (Mother, Charland) In the ILBI classroom, Student changed from being pleasant and cooperative to engaging in disruptive behavior, including talking out, making inappropriate comments, wandering around the room, interrupting other students, making faces, and rocking in his chair. (S-11, Snow, Mother) On the other hand, Student’s behavior in his mainstream class (math, science, social studies) was “excellent” albeit “quiet.” (O’Connor)
· Mother spoke with Ms. Chambers several times about the social and behavioral issues referred to above. (Mother) Until some time after January 2001, however, WSPS did not formally assess Student’s emotional and behavioral functioning, did not convene a Team meeting to discuss the situation, and did not amend the IEP to provide additional services. Instead, at some point prior to January 2001, school staff developed an intervention that they termed a behavior modification plan and made the services of the School Adjustment Counselor (SAC), Mr. Panzanero, available to the Student. (Mother) There is no record evidence of the substance of the plan, of who developed it and when, or of any assessments that were conducted before the plan was formulated. The IEP was not amended before January 2001 to add emotional/behavioral goals and objectives or to reflect the added services. The school psychologist, Raymond Snow, was not aware of the existence of the behavior plan. (S-11, Snow) In any event, the behavior plan was not consistently implemented. (Mother)
· In mid-January 2001, at a TEAM meeting convened for another purpose,14 Parents requested a functional behavioral assessment (FBA). (Mother, Snow) The FBA report was written and given to the TEAM on or about May 8, 2001. (S-11; Snow) Meanwhile, in January 2001, before the FBA report was written, the IEP was amended to state that Ms. Chambers and Mr. Panzanero would address self-esteem issues with Student. The IEP amendment did not describe the self-esteem and/or behavioral problems in question, did not state specific goals and objectives in this area, and did not add Mr. Panzanero’s services to the grid, although it did refer to the FBA that had been requested. (S-12)
· In late March 2001, Parents retained a private counselor for Student, Peter Charland, Ph.D, LICSW, because of the school and behavioral problems referred to above. (Mother; Charland) Parents told Dr. Charland that Student was receiving many timeouts, detentions, denials of recess, and reprimands in school.15 Dr. Charland saw Student approximately weekly between March and June 2001 and a few times that summer. (He also continued to see Student weekly during the 2001-2002 school year). His initial impression was that Student was a “great kid,” with significant anxiety, attention deficits, and an overriding sadness. Student reported that peers in school called him names and mocked him and that he felt his teachers did not protect him. Dr. Charland concluded that Student’s language deficits, especially with complex language and inferences, caused problems with forming friendships and having conversations and attributed his anxiety to frustration with his language disability and by his unhappiness in school. During the summer, when school was out, Dr. Charland found Student to be quieter, less anxious, and less impulsive. (Charland)
· Also in March 2001, Student began a parent-initiated evaluation with the Center for Children with Special Needs (CCSN) at the Floating Hospital for Children, New England Medical Center. (Mother, Adams, P-E) The CCSN evaluation consisted of a neurodevelopmental assessment by a developmental pediatrician, Karen Bresnahan, M.D., and an educational assessment by an educational specialist, Phoebe Adams, Ed.M.. These assessments comprised interviews with Parents and Student, review of prior records, physical examination by Dr. Bresnahan, and both informal and formal testing. Dr. Bresnahan and Ms. Adams produced a combined evaluation report containing both individual and joint findings and recommendations. (Adams, P-E )
· Dr. Bresnahan’s assessment was consistent with prior evaluations. She described Student as a talkative, cooperative, and somewhat anxious-appearing child who frequently put down his abilities and appeared to be of average cognitive ability. His performance on various paper and pencil and language tasks was consistent with visual-motor and graphomotor delays as well as significant language processing problems, including problems with word retrieval, following verbal instructions, and sentence formulation. Student also had difficulty with visual and auditory memory (attention issues were a factor here), using active working memory, organizational skills, part to whole relationships, and processing complex visual information. Student performed closer to age level in auditory comprehension. (P-E)
· Ms. Adams’ evaluation results were also consistent with those done previously.16 Her test results revealed significant problems with decoding, fluency, naming, phonemic awareness, comprehension, spelling, and written expression. On the Woodcock Reading Mastery Test (WRMT), Student scored at the 2.8 and 2.6 grade equivalency level in word identification and word attack, respectively. (S-13) On the Test of Written Spelling, Student scored at the first grade level. (Id.) He scored below average on the Test of Written Language (TOWL-3). On the Gray Oral Reading Test (GORT), Student achieved grade equivalents of 2.5 in reading rate, 4.5 in accuracy, and 3.5 in passage score. The Standardized Reading Inventory placed him at the low third grade instructional level for oral reading, and the second grade instructional level for comprehension. The Rosner Test of Awareness of Language Segments (TAAS) placed Student at the first grade level. Student also had problems with pragmatic language, which affected his ability to have conversations. (Adams, P-E) Comprehension was also below average. In math, Student showed relative strength in computation, scoring at the 5.5 grade level on the Kaufman Test of Educational Achievement, but had difficulty with problem solving. (Id.)
· Dr. Bresnahan and Ms. Adams concluded that Student has cerebral dysfunction characterized by ADHD; significant language-based learning disabilities including dyslexia and problems with language processing, formulation and retrieval; weak organization, written output and written expression; and slow processing speed. As a result, Student has global and significant academic delays of two to four years, and would continue to perform below his potential in reading, comprehension, rapid written output, timed tests, written expression, effective communication with peers and adults. Student’s disabilities are complex, and implicate not only reading and writing, but also higher level academic performance and social and behavioral functioning. (Adams, P-E)
· CCSN recommended an intensive language-based program with a highly structured approach, and direct daily instruction in language taking place all day, across all subjects. (Id.) Based on reported information (she did not observe the program) Ms. Adams concluded that ILBI probably was not intensive enough for Student in the general classroom, and might not take into account that Student has language problems that go beyond just reading. (Adams) Ms. Adams’ view was that the improvement made during fourth grade that was reported by Dr. Dautrich was not significant, because Student still remained two to four years below grade level in some areas of language use. Additionally, Ms. Adams’ opinion is that Student’s strength in use of context for reading actually reflects the seriousness of his reading disability. (Adams)
· Student also received an outside speech/language evaluation by Kathleen S. Grabowski at North Shore Children’s Hospital on March 29, 2002. (P- G) Ms. Grabowski’s report, consistent with those of CCSN and WSPS, indicated significant impairment in language processing and comprehension, particularly with lengthy, linguistically complex or abstract information, figurative language, drawing inferences, and higher-level comprehension skills, as well as in tasks requiring flexible thinking. Student also had significant impairment in expressive language. There were underlying problems with syntax, language formulation, and word retrieval. He had trouble following multi-step directions, particularly as the directions became complex. Student had weak social pragmatic skills, shown by his limited spontaneous initiation of conversation, and inconsistent eye contact. Student’s ability to communicate also was impaired by his limitations in processing, comprehension and oral expression. Finally, like other evaluators, Grabowski found that Student had significant weaknesses in phonological processing. Student had strengths in expressive and expressive vocabulary, story comprehension, and sentence repetition all of which were in the average range. Ms.Grabowski described Student as pleasant, cooperative, attentive, and focused during the evaluation, but also as easily confused, often needing directions to be repeated, having trouble expressing himself, and aware of his learning problems, often stating that tasks were hard for him. (P-F)
· Ms. Grabowski’s report states that despite Student’s areas of strength, his “significant oral and written language deficits are cause for serious concern…[Student’s] significant problems with language processing/comprehension place him at high risk for problems with accurate and efficient processing/interpretation of information in the classroom…and in social situations. In fact, as [Student’s] basic reading/decoding skills continue to improve, his problems with language processing/comprehension will place him at high risk for difficulties with …read[ing] and understand[ing] complex reading material…[Student’s] problems with retrieval, language formulation, and syntax will continue to impact upon his ability to express thought clearly and fluently through oral and written communication…Ms. Grabowski attributes Student’s reading and written language skill deficits to underlying problems with retrieval and phonological processing/coding/awareness. (Id.) Grabowski described Student as at “profound risk for problems” as he moves through the grades and faces increasingly complex material. (Id)
· Ms. Grabowski recommended a small (six to eight students) highly-structured language-based class for instruction in all core academic subjects including math, science and social studies, taught by special education teachers and learning disabilities specialists, with the help of a speech/language therapist. She further recommended daily direct speech/language therapy, including phonemic awareness using a program such as LiPS, as well as help with comprehension skills, compensatory strategies, and oral expression. For reading, Ms. Grabowski recommended continued intensive direct, daily individual or small group decoding instruction using a rules-based methodology, with ample speech/language therapist coordination with the reading teacher. Finally, Ms. Grabowski recommended small group instruction in pragmatics, co-taught by a psychologist and speech/language therapist, with opportunities to practice at less-structured times. (Id.)
· On April 26, 2001, Dr. Dautrich assessed Student’s fifth grade achievement. (P-B) Since May 2000, as measured by the WIAT, Student had progressed approximately one year in basic reading (from G.E. 2.0 to 3.2); and over one year in written expression (Grade 2.1 to 3.9). Student progressed four tenths of a year in reading comprehension (Grade 4.1 to 4.5) and regressed by 0.1 year in spelling (2.8 to 2.7). On the WRMT word attack subtest, Student progressed from a grade equivalent of 1.5 to 2.4, and a raw score of 8 to 20. Student’s grade equivalency score of 2.0 on the Test of Auditory Analysis Skills (TAAS) had not changed from May 2000. (He scored at a 1.0 grade equivalent with Ms. Adams). Dr. Dautrich’s explanation was that a stable score on this test indicated that “an important foundation has been established” in the ability to manipulate phonemes, so that further progress could be expected. On the TAAS, Student showed persistent difficulty in organizing and processing words for reading and spelling. On the Burns and Roe Informal Reading Inventory, Student scored, respectively, 95%, 90% and 73 wpm on the Grade 3 passage in word recognition, comprehension, and reading rate. In the grade 4 passage, his scores were 93%, 80%, and 65 wpm; in the Grade 5 passage, they were 90%, 60%, and 77 wpm. In July 1999, almost two years previously Student had scored 88%, 90%, and 33-39 WPM at the Grade 3 level; thus, his reading rate had increased over two years. Dr. Dautrich found oral comprehension and expression to continue as relative strengths. Student’s teacher reported steady growth in skill areas and grade level concept development, although his problems with spelling and written expression reduced his progress. (P-B). For sixth grade, Dr. Dautrich recommended continued ILBI placement to improve Student’s underlying language deficits, while enabling him to participate in and profit from general education curriculum.17 (Dautrich: P-C)
· The FBA that had been requested in January 2001 was conducted by Raymond Snow, School Psychologist, who issued a report dated May 8, 2001. Mr. Snow observed Student for approximately one school day in both the ILBI and inclusion classrooms. In the ILBI setting, with a substitute teacher, Student showed frequent avoidance behaviors (wandering, turning his back to other students and the speech therapist when they spoke, watching the other group from across the room) for which he needed redirection. Student also interrupted others (making faces, tapping his pencil when others were speaking) and immediately said “I don’t know” when asked questions, before he tried to answer. In spelling, Student made faces, rocked, tried to kick another student under the chair, and made inappropriate comments out loud and under his breath, and continually interrupted the teacher, who eventually told him to leave the group. In reading group, Student talked out and did not volunteer to respond. On the other hand, in inclusion math, Student paid close attention, participated and answered questions. (Id.)
· Staff told Mr. Snow that Student had a longstanding problem with disrespect to adults, and that the day of the observation was a good day for Student. They reported that Student had difficulty with the ILBI teacher’s absence, questioning the authority of the new teacher. However, even before the teacher’s absences, Student had been turning away, talking back, using a disrespectful tone, and commenting under his breath. (S-11) Student also often questioned his ability to complete tasks and refused to work, or worked only with much praise, although this improved later in the year. Teachers observed that Student’s behavior worsened with more demanding work. Verbal prompts usually got Student back on task, but he was sent to the principal’s office a few times. (S-11) On the date of observation, Mr. Snow noticed that Student had not met the requirements for going outside with his class, but there is no record evidence as to what those requirements were or whether the time outside was regular recess or something else. (Id.)
· Mr. Snow concluded that Student was disruptive if he felt his work was difficult, and avoided work if he was bored. Snow further concluded that Student behaved better in mainstream classes because while there he either was working in his strong subject, math, or was able to participate orally, which did well. Additionally, ILBI staff paid attention to negative behavior, while mainstream teachers noticed positive behavior. (Snow, S-11)
· Mr. Snow recommended continued access to the school adjustment counselor, some instruction in the inclusion setting, praise for positive behaviors in the ILBI setting as well as in the mainstream, use of other students’ positive behavior as models, extra time to formulate responses, repetition of directions, and use of visual/verbal cues. Mr. Snow also noted that Parents had authorized communication between Student’s therapist and school. He did not consult with Dr. Charland for this FBA or on any other occasion. (Snow, S-11)
· The TEAM met on May 11 and May 21, 2001. At the May 21 Team meeting, the Parents presented a written and oral summary of their view of the differences between the CCSN recommendations and the ILBI program in the Middle School, and stated that they felt Student needed more intense language-based programming. (Father, P-H)
· On May 29, 2001 the TEAM issued an IEP for the ILBI program at the Middle School. (P-I; S-10) The TEAM had relied on teacher reports and in-house evaluations, reports by Parents and Dr. Charland, and evaluations by CCSN18 and Ms. Grabowski. (Id.) The proposed IEP called for English, reading, individual and group speech/language therapy, and language arts in the ILBI setting, and mainstreaming for math, history/social studies, science, and academic support, with special education staff support (from an aide or teacher) in the mainstream classroom. (P-I; S-10) The IEP also provided for weekly consultation to regular education staff from the special education teacher, occupational therapist, and speech/language therapist. Finally, the IEP prescribed numerous accommodations for all settings (e.g., graphic organizers, pre/post teaching, multi-sensory presentation of materials, extra time to process information, reduction in written work; access to a keyboard/computer, positive reinforcement for appropriate work and behaviors). (Id.)
· In contrast to the IEP for fifth grade, the proposed sixth grade IEP explicitly stated that Student’s disability affected his social/emotional functioning: “[Student] can display anxiety that can interfere with his ability to interact with staff and peers and ability to complete tasks in school (teacher/staff reports, Dr. Chareland [sic]). [Student] has difficulties with his pragmatic and expressive language that can impact his ability to communicate with staff and peers.” The IEP contained no explicit social/emotional goals and objectives, although to some extent these were to be addressed via pragmatics instruction and access to the School Adjustment Counselor. The IEP also contained no specifics in the service grid or elsewhere on either the contact with the therapist or Student’s meetings with the SAC, i.e., how often or for what purpose these were to occur.19 (P-I; S-10)
· During the spring of 2001, prior to the May TEAM meeting, Parents were becoming concerned that the middle school ILBI program would not meet Student’s needs. (S-10, Mother; P-J) Parents felt that Student had not progressed enough to keep up with the demands of sixth grade, that there would be too little carryover between ILBI and the mainstream, that mainstream staff would not be able to help Student use the ILBI strategies, and that Student would fall behind. (Mother, Father; P-J) Parents also worried that WSPS would not be able to provide consistent backup services if the sixth grade ILBI teacher were also to have frequent absences as the fifth grade teacher did. Finally, Parents believed that Student’s emotional state was deteriorating. (Id.) Parents decided, based on recommendations of CCSN and Ms. Grabowski, that Student needed an intensive language-based program in all settings. They made an oral and written presentation to the TEAM in support of their position. (P-J, Father)
· During spring of 2001 Parents had begun to explore private special education schools, and in or around June 2001, enrolled Student at the Curtis Blake Day School in Springfield for the following fall. (Mother) In a letter from counsel dated June 13, 2001, Parents rejected WSPS’ IEP for 2001-02, and notified WSPS that they intended to seek reimbursement for a unilateral placement at CBDS. (P-J, Mother) Student attended Curtis Blake for the 2001-02 school year. (Mother, Father, Charland, Pellegrini) Student did not attend the summer program offered by WSPS during summer, 2001. (Mother)
· Parents did not observe the middle school ILBI program during Student’s fifth grade year because they were under the impression that there was no such program yet but that the first Middle School ILBI class would be created for Student’s class when it entered Grade 6 in the fall of 2001. In fact, there were about two sixth grade students receiving intensive language-based instruction at the Middle School during Student’s fifth grade year, SY 2000-2001. (Father, Scheer)
PROGRAM PROPOSED BY WEST SPRINGFIELD PUBLIC SCHOOLS
· The WSPS proposed program for Student’s 2001-2002 (sixth grade) was similar to that for elementary school in that it combined intensive reading and language arts instruction in a substantially separate classroom with inclusion for math, science, social studies and specials. (Dautrich, Scheer, Bryant)
· The language-based component was provided during 2001-2002 by a special education teacher (Ms. Lynda Scheer) an aide, and by two speech-language therapists, Ms. Mary Clay, and Ms. Marcia Devenitch–who had been the ILBI speech/language therapist at the Fausey School during Student’s fourth and fifth grade years.20 Also available were two guidance counselors and a behavioral psychologist, who was to develop unobtrusive interventions for ILBI students if needed. (Scheer) The specialists were part of a sixth grade inclusion team consisting of five regular education teachers in addition to Ms. Scheer and another special education teacher. (Scheer) Speech/language services were provided in the ILBI classroom four times per week. (Id.) OT was provided if required by a student’s IEP. (Scheer, Bryant, S-3) This sixth grade team was headed by Ms. Rebecca Bryant, who taught science and social studies, and was responsible for coordinating the team’s regular and special education activities. (Bryant) During 2001-2002, the team—including regular and special education teachers– met approximately 45 minutes per day to discuss curriculum, activities, and student problems. (Bryant)
· The reading strategies used by the sixth grade ILBI program were the same or similar to those used in Student’s fifth grade ILBI class–i.e., Lindamood-Bell programs, ILBI, Story-Grammar Marker, Benchmarks; use of context and prior knowledge to aid comprehension. However, the reading material was more difficult, was more literature-based, and was tied more closely to the materials being covered in the content areas. Additionally, more focus was placed on MCAS preparation.21 The ILBI class also addressed written language, often with assignments from the inclusion content area classes. (Scheer)
· During 2001-2002, about nine sixth graders were enrolled in the Middle School ILBI program. Most had graduated from the fifth grade Fausey School ILBI. As of June 2001, summary profiles of six of these students—all boys—were similar to Student’s. Most had skill deficits or diagnostic labels related to reading and language, e.g., phonology, oral language, dyslexia, “hates reading,” processing speed, pragmatics, organization, ADHD, low self-esteem. (S-4) They functioned close to Student’s grade levels in word recognition, comprehension, spelling and writing. (Id.)
· This group was divided roughly in half according to student needs. While one group of about four students was receiving reading or language arts with Ms. Scheer, the other attended inclusion science or social studies. Later in the day, the two groups exchanged places, with the group that had studied reading/language early in the day going to science or social studies. The ILBI aide accompanied students to science and social studies in order to help students use their language-based strategies to access the regular education materials. (Scheer)
· The inclusion science and social studies classes contained between 15 and 30 students depending on the grouping, and were staffed by the regular education teacher (Ms. Bryant), the ILBI aide, and, in the larger science and social studies groupings of 28 and 30 students each, the Life Skills aide. (Id.) For math, 22 sixth graders, including all ILBI students, attended an inclusion class that was co-taught by a regular education teacher and Ms. Scheer, along with a Title I math aide. (Bryant, Devenitch, Scheer)
· Coordination between the content area classes and ILBI classroom was addressed via modifications and accommodations in the content area classes, e.g., by the inclusion teacher providing ILBI students with a preview of upcoming lessons and vocabulary words for study in the ILBI classroom, allowing students to use scribes for notes, hands-on instruction, reducing written work requirements. (Bryant) (Most sixth grade team members had attended a five session training with Dr. Dautrich during the summer of 2001 to prepare for the ILBI students. Additionally, Ms. Scheer had observed Student and his ILBI classmates in fifth grade.) (Scheer)
· Members of the sixth grade team felt ILBI students progressed well in both the ILBI and inclusion classrooms during the 2001-2002 school year. (Bryant, Clay, Devenitch, Scheer) Several students will be moving out of ILBI for the seventh grade, 2002-03 school year and will be monitored by Ms. Scheer. (Scheer, Dautrich) Some ILBI and inclusion staff felt that at a certain (undefined) point, the educational focus for students with language-based disabilities and dyslexia should shift from reading mechanics to making the general curriculum accessible. (Scheer, Dautrich, Bryant, Devenitch) Additionally, within the sixth grade during SY 2001-2002, it was a staff goal for ILBI students to be indistinguishable from their peers in the inclusion classroom. (Clay, Scheer) The students themselves began to stop wanting to be pulled out of class or to use their various supportive devices (Lindamood blocks, vocabulary cards) because they wanted to look like everyone else and because they often did not need them as they could apply their strategies independently. (Scheer) Additionally, formal pragmatics group instruction diminished or ceased. (Devenitch)
PROGRAM PROPOSED BY PARENTS
· The Curtis Blake Day School (CBDS or Curtis Blake) is a private, Chapter 766 approved day school that serves approximately 75 students with language-based learning disabilities. (Pellegrini) Based on a prototype developed by the Curtis Blake Child Development Center, which is affiliated with American International College, the CBDS follows a prescriptive language-based model in which sounds of language and word study predominate instruction. (Dautrich, S-7) CBDS provides intensive, sequential, rule-based language intervention across all areas of the curriculum. (Pellegrini, Dautrich) The underlying premise is that language-based learning disabilities result from neurologically-based inefficiencies in hearing and manipulating spoken language sounds. These inefficiencies, in turn, impair mapping of sound to print for writing, and print to sound (reading). According to this model, research shows that instruction with specific methodologies such as LiPS and Benchmark can remediate these inefficiencies and resultant problems with reading and writing. (Dautrich, Pellegrini)
· CBDS is staffed by 30 to 35 teachers, 3 speech/language pathologists, one speech/language assistant, and a psychologist who serves as a school adjustment counselor. All teachers are either certified in special education or work under the supervision of a certified teacher. There is no occupational therapist on staff. Most classes contain approximately six students and one teacher. (Pellegrini)
· Student began Curtis Blake in August 2001. For the 2001-02 school year, Student’s primary teacher was Ms. Loretta (Laurie) Pellegrini, a certified special education teacher with a Master’s degree in reading. Ms. Pellegrini was student’s homeroom teacher and liaison teacher with other school staff, and also was his reading teacher. (Pellegrini).
· Student’s program at CBDS consisted of 35 minutes per day of 1:1 reading instruction with Ms. Pellegrini; two class periods per week of pragmatics instruction, three periods per week of language/literature as well as math, science and social studies. Student received intensive, language-based instruction on an individual or small group basis for reading and language arts. Additionally, content area classes were also small (no more than six students with one teacher). Language-based curriculum is carried over and presented in each of these classes on an intensive basis. (Pellegrini, Dautrich) Curtis Blake used many of the same strategies and methodologies with Student as ILBI did; i.e., LiPS, Visualizing and Verbalizing, Benchmark, Story Grammar Marker. (Id.) Curtis Blake courses follow the Massachusetts Curriculum Frameworks. (Pellegrini)
· Many students at Curtis Blake have problems with social interaction related to their learning disabilities; e.g., impulsivity, blurting. The school addresses these issues by teaching students alternative behaviors, visual aids (i.e., a drawing of a hand with pragmatics reminders written on the fingers) in each classroom, and pragmatics cueing by all teachers. Additionally, Student attended a weekly boys’ group facilitated by the school psychologist. (Pellegrini) Student does not receive OT; he is learning typing via the Mavis Bacon program. (Pellegrini) He does not have contact with non-disabled peers during the school day. CBDS has not offered Student a summer program for summer 2002.
· CBDS teaching staff meet weekly for staff meetings, monthly for half-day workshops and, additionally, any teacher can convene a meeting to discuss a student’s progress. (Pellegrini). During 2001-01, Ms. Pellegrini convened five or six meetings with all of Student’s teachers to discuss Student’s progress, as well as several meetings with individual teachers to address social or academic issues that arose during the year. (Id.)
· Over the course of one year at Curtis Blake, Student made approximately one year’s progress in reading (from approximately beginning fourth to beginning fifth grade level), and made gradual progress in comprehension, decoding, and independent application of various reading/language strategies.
· Student was apprehensive and reluctant to participate in class when he first began at Curtis Blake, was anxious, and automatically stated that he could not do a task asked of him, and could independently apply strategies that he had previously learned. (Pellegrini) During the school year, Student’s anxiety lessened, which made it easier for him to learn. Ms. Pellegrini attributed the lowered anxiety to small classes and a consistent routine throughout the school day with no pullouts. Student still had social difficulties but was beginning to have some friendships during the school day, although these did not carry over after school or to weekends. According to Ms. Pellegrini, Student feels “like a learner,” and is more hopeful about his ability to learn in school. (Pellegrini) Student now states that he likes school, has stated that he hopes to be able to remain at Curtis Blake. (Pellegrini, Father).
· In November 2001, Dr. Dautrich observed Student in his CBDS science class. She concluded that, consistent with the CBDS model, the class focused heavily on the language used in the science lesson at the expense of content. She further concluded that Student’s language-based language deficits were ongoing and justified continued specialized services in language arts and reading, as well as significant modifications in the inclusion classroom in both teaching and output demand. She also concluded that Student’s relative strengths in cognitive ability, reading comprehension, contextual reading, and fund of knowledge indicate that he can succeed in a less restrictive program than CBDS, provided he has both specialized instruction in reading and language arts and significant modifications in teaching and in output demand in inclusion classes. In her report, Dr. Dautrich stated that on balance, students with language-based learning disabilities should have opportunities to participate in grade level curriculum, and that “it is difficult to determine the ideal balance between an exclusively prescriptive curriculum and the wider opportunities of traditional grade-level learning. However, because weaknesses in phonology and word analysis are likely to persist…it would seem important to preserve the opportunity for grade-level subject matter learning and full…participation in a setting of peers. (Dautrich; S-7)
· Dr. Charland observed Student for two hours (four classes) at CBDS and found him attentive, appropriate, engaged in his the class and able to answer questions. In one class (phonemic processing), Student appeared bored. Dr. Charland also continued to see Student in weekly counseling during 2001-2002 and concluded that Student grew emotionally and socially since placement at CBDS. The instruction that Dr. Charland observed at CBDS appeared appropriate for Student in that it was consistent, positive, and because pragmatics in particular were reinforced in all classes. (Charland) According to Dr. Charland, Student does not feel isolated, he is happier (“night and day”), and better able to verbalize his feelings including anxiety. About three weeks before the hearing, Student told Dr. Charland that he prefers CBDS because nobody laughs at him or ridicules him there. (Charland)
· Mr. Snow also observed Student at Curtis Blake, for about half an hour. He observed “fidgety” behavior similar to what he had seen at the Fausey school the prior year. Student was prompted to attend to his work. Mr. Snow did not observe any verbal outbursts. (Snow)
· At home, Student has seemed happier and more positive about school since his placement at Curtis Blake. (Mother)
FINDINGS AND CONCLUSIONS
Student is a school-aged child with a disability who is eligible for special education and related services pursuant to the IDEA, 20 USC Section 1400, et seq ., and the Massachusetts special education statute, G.L. c. 71B. Therefore, at all relevant times, Student is and has been, entitled to a free appropriate public education (FAPE). For the IEP at issue, drafted before January 2002, the definition of FAPE for Massachusetts students was maximum feasible benefit in the least restrictive environment. David D. v. Dartmouth School Committee , 775 F.2d 411, 423 (1 st Cir. 1985), cert. denied., 475 U.S. 1140 (1986); Stock v. Mass. Hospital School , 395 Mass. 205, 211 (1984).
At issue here is whether the program and services that WSPS offered to Student for the 2001-2002 school year were reasonably calculated to provide maximum benefit in the least restrictive environment. If so, the inquiry stops. If not, then the issue is whether the Parents’ unilateral educational placement at the Curtis Blake Day School was “appropriate,” i.e., whether it was reasonably tailored to meet Student’s special educational needs. Matthew J. v. Mass. Dept. of Education , 989 F. Supp. at 387, 27 IDELR 339 at 343-344 (1998), citing Florence County School District Four v. Carter , 510 US 7, 13 (1993); Doe v. West Boylston School Committee , 28 IDELR 1182 (D. Mass., 1998); In Re Gill-Montague RSD , BSEA #01-1222 (Crane, August 2001)
Under both the federal FAPE and “old” Massachusetts maximum benefit standards, an educational program must be provided under an IEP that is tailored to the unique needs of the disabled child, and must meet all of the child’s identified special education and related service requirements, including academic, physical, emotional and social needs. 34 C.F.R. 300.300(3)(ii); Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993), citing Roland M. v. Concord School Committee , 910 F.2d 983 (1 st Cir. 1990), cert. denied, 499 U.S. 912 (1991) and Burlington v. Mass. Dept. of Education , 736 F.2d 773, 788 (1 st Cir. 1984).
Further, under both standards, special education and related services must be provided in the least restrictive environment, i.e., to the extent appropriate, with children who do not have disabilities, so that programs and services are implemented in separate settings only when, because of the nature or severity of the child’s disability, they cannot otherwise be provided effectively. 20 U.S.C. 1412(5)(A).
Finally, FAPE also entails complying with the procedural requirements of the IDEA; a school district which violates a student’s procedural rights under federal or state law may be liable where “procedural inadequacies [have] compromised the pupil’s right to an appropriate education … or caused a deprivation of educational benefits.” Roland M., 910 F.2d at 994 (1 st . Cir. 1990) (citations omitted). Thus, for example, “a procedural default which permits a disabled child’s entitlement to a free and appropriate education to go unmet for two years constitutes sufficient ground for liability under the IDEA.” Murphy v. Timberlane Regional Sch. Dist. , 22 F.3d 1186, 1196 (1 st Cir. 1994).
If parents of an eligible disabled child can prove that the program and services offered by their school district do not provide FAPE (defined as maximum feasible benefit for IEPs issued prior to January 2002) they may be reimbursed for the costs of unilaterally placing their child in a private program, if they also can prove that the privately obtained services are appropriate. School Committee of Town of Burlington v. Dept. of Education of Mass ., 471 U.S. 359, 369-70 (1985). Prior to Massachusetts’ change to the FAPE standard in January 2002, the parents’ chosen program was not required to meet the maximum benefit standard to qualify parents for reimbursement, but, rather, the federal FAPE standard. 34 CFR 300.403(c); Matthew J. , supra (citations omitted); In Re Gill-Montague RSD , supra. Thus, a parent may be reimbursed for the costs of a unilateral placement if that placement is “appropriately responsive to [a student’s] special needs;” so that the student can benefit educationally. Matthew J. , 27 IDELR at 344.
Here, the record establishes that Student’s constellation of disabilities has seriously impaired Student’s educational skills and performance throughout his school career, such that by the end of fifth grade, most of Student’s reading and language skills fell between the second and fourth grade levels. Student’s stronger skills–comprehension and some oral communication–also break down as the complexity of the material increases. (Adams, P-G) In addition, Student has longstanding social/emotional problems, including anxiety, lack of confidence, and lowered self-esteem, that have been present throughout his school career but which were especially problematic in school and at home during fifth grade. (Mother, Charland, Snow, S-11) There is no dispute that Student needs intensive, language-based instruction to address his language deficits, that these services should include some amount of one-to-one or small group instruction in phonological processing, decoding, reading comprehension, and related language skills and pragmatics instruction; that methodologies such as Benchmarks, Story-Grammar Marker, LiPS and Visualizing and Verbalizing are helpful to Student, and that Student requires accommodations and modifications to access grade level curriculum. (Dautrich, Pellegrini, Devenitch, Adams)
Moreover, although the parties dispute the amount and significance of the academic progress that Student made during his two years in the ILBI program,22 the record amply establishes that Student did in fact progress in some skills related to reading and writing during his fourth and fifth grade years, i.e ., in basic reading, reading comprehension, and written expression as measured by the WIAT, as well as in word attack and reading rate, (Adams; Dautrich; S-12; Pellegrini; Father), while remaining behind his age and grade placement in most skills so that he continued to need specialized services. (Id.) The record also establishes that Student appeared to do well in the inclusion setting with supplemental aids and services, accommodations, and curricular modifications, including carryover between the two settings. Student understood much or most of the content, and by the end of fifth grade he was beginning to independently apply strategies learned in the ILBI program to the general curriculum. (O’Connor, Dautrich, Snow)
Finally, the parties do not dispute that the pullout portion of the ILBI program was appropriate for Student. (Dautrich, Father) The only real area of dispute is the model of service delivery. Parents argue that that for sixth grade, Student needed intensive, small group language intervention across all subjects, throughout the school day to meet his academic and emotional needs. (Parents, Adams, P-F) WSPS contends that the proposed 2001-2002 program that combined pull-out ILBI services with a modified and coordinated mainstream programming was calculated to provide Student with maximum benefit in the least restrictive environment. (Dautrich, Scheer, Bryant)
When analyzed in light of Student’s profile and the standard discussed above, the proposed program of WSPS for 2001-2002, while impressive, was not appropriate for Student at the time at issue because it did not adequately address the social, emotional and behavioral needs that WSPS itself had acknowledged from the beginning of fifth grade. See Lenn, supra . By the middle of Student’s final year at the Fausey School, (fifth grade, SY 2000-2001) Student’s behavior at home and in school had deteriorated and was concerning enough to his parents and, apparently, to some Fausey School staff, so that the latter developed an informal behavior intervention plan at some time before January 2001 and, in January, agreed to conduct a functional behavioral assessment (FBA).23 (Mother, Snow, S-11; Findings of Fact Nos. 30-32; 43-46)
By March of 2001, Parents had retained Dr. Charland, who found Student anxious and unhappy, and feeling insecure, harassed, and unprotected in school. (Charland) When the FBA requested in January eventually was done (most likely in April or early May 2001)24 , the evaluator documented off-task, avoidant, and disrespectful behavior in the ILBI setting—which behavior had been going on for some time–and noted that Student was now in private therapy. Inexplicably, however, the FBA recommended little more than continuation of the services already in place. (Snow, S-11)
Despite Student’s acknowledged emotional and behavioral problems that affected his classroom functioning and learning, WSPS issued an IEP for sixth grade that was essentially the same as the fifth grade IEP. The IEP mentioned Student’s social/emotional needs and stated that the School would be allowed to contact the private therapist, but provided no social/emotional goals, objectives or specific services, and no schedule for consulting with the therapist. There was simply very little in the sixth grade IEP that was reasonably calculated to correct the problems that had arisen in fifth grade.25 This failure to address all of Student’s needs made the proposed IEP for Student inappropriate. See Lenn , Roland M ., Burlington , supra .26
Additionally, WSPS committed a procedural violation that deprived Student of FAPE in fifth grade by failing to assess his acknowledged social and emotional problems in a timely manner. School districts are required to evaluate students in all areas of suspected disability, including social and emotional status. 20 USC Sec. 1414(b)(3)(C); 34 CFR 300.532(g); 603 CMR 28.04(1). Districts must also re-evaluate students if conditions warrant or upon request of a parent or teacher. 20 USC 1414(a)(2); 34 CFR 300.536(b). Upon completing an evaluation, a district must convene the TEAM promptly27 to consider evaluation results and amend the IEP, if appropriate. 603 CMR 28.04, 28.05(1). Here, the school was on notice of Student’s behavioral problems at home and in school in the first months of fifth grade. In January 2001, Mother requested an FBA and WSPS agreed to provide it. However, the FBA was not conducted until late April or early May and the report was not made available to the TEAM until the May 11 TEAM meeting, too late for the TEAM consider amending the fifth grade IEP and/or consider additional assessments. This failure to timely evaluate and address an acknowledged area of need deprived Student of FAPE during fifth grade. Id., Roland M., 910 F.2d at 994 ; Murphy v. Timberlane , 22 F.3d at 1196.
As for sixth grade IEP, although it had shortcomings, it might have been “fixable” with a more comprehensive assessment of Student’s social/emotional needs—and additional goals, objectives and services in this domain if warranted by that assessment. (In this regard, I note that the teachers, consultants, and therapists from WSPS who testified at hearing were impressive in their knowledge, enthusiasm and commitment relative to addressing students’ special needs while also making the general curriculum accessible.) (Scheer, Bryant, Clay, Devenitch, Dautrich, O’Connor, Snow) However, since this is a retroactive reimbursement case, I must look back at whether the IEP proposed by the WSPS was appropriate as written, and find that it was not, for the reasons stated above.
On the other hand, the Parents’ placement at the Curtis Blake Day School was appropriate. Curtis Blake is a Chapter 766-approved private school that is designed to meet the needs of children with Student’s profile. In addition to addressing Student’s learning needs such that his academic progress there was comparable to that made in the ILBI program, it also managed to address his social-emotional needs through a combination of small classes, reinforcement of language-based strategies across all settings, consistent pragmatics instruction, and recognition of the prevalence of social/behavioral problems among students with Student’s profile. (Pellegrini)
As a fifth grader in the Fausey School, Student was miserable, frustrated, and beginning to have behavior problems that affected his and others’ learning. (Mother, Snow, Charland, S-11) At the CBDS, he still had some minor social/behavioral issues, but was happier, less anxious, and eager to attend school and learn. (Mother, Pellegrini, Charland)
In light of Student’s relative success in the mainstream, with supports, the restrictiveness of the CBDS program is a drawback. Parents, however, were not required to choose a perfect placement but only one that was “appropriately responsive to [Student’s] special needs” so that he could derive educational benefit. Matthew J ., supra. Student needed a placement for sixth grade that could deal with his emotional difficulties. WSPS failed to timely assess and deal with these issues in fifth grade and then proposed an IEP and placement for sixth grade that acknowledged the problems but did not address them sufficiently. Moreover, the evidence of Student’s social, emotional and academic progress at the CBDS shows that it was appropriately responsive to Student’s needs during the relevant time.28
For the foregoing reasons, I conclude that Parents are entitled to reimbursement for Student’s placement at the Curtis Blake Day School for the 2001-2002 school year.
ORDER
The West Springfield Public Schools shall reimburse Parents for the costs of Student’s placement at the Curtis Blake Day School for the 2001-2002 academic year.
____________________ _____________________________
Dated: August 15, 2002
Sara Berman, Hearing Officer
1
Between the date the hearing was requested and the hearing itself, a pre-hearing conference and one or more telephone conferences were held, and both parties requested one or more postponements for purposes of discovery and settlement discussions.
2
In January 2002, the Massachusetts standard for measuring the appropriateness of an IEP changed from “maximum feasible benefit” to “free, appropriate public education.” See G.L. c. 71B, Sec. 3, as amended by 2000 Stats. Ch. 159, Secs. 162, 489, 493. Here, however, the IEP at issue was rejected, and the due process hearing was requested, prior to January 2002. Therefore, the “maximum feasible benefit” standard applies. Id.
3
Neither party contends that Student has ever presented severe behavioral or disciplinary problems in school.
4
This neuropsychological evaluation was conducted by Mark R. Elin, Ph.D. of Baystate Medical Center in Springfield. (S-50, 51) Testing showed that Student functioned cognitively at the low average to average level, but had low processing speed that “seriously slows down his otherwise higher levels of productivity and execution of his innate resources.” (S-49). Further findings included weak expressive language, visual spatial perceptual deficits, finger agnosia, and problems with attention and concentration, all of which interfered with encoding information, copying written work, writing spontaneously and producing schoolwork at a rate and level commensurate with his cognitive ability. (Id.)
5
The target student population typically is two to three years behind in reading, and has problems with phonological processing. (Id.)
6
Barbara Dautrich, Ed.D. helped design the ILBI program and also provides student evaluations and ongoing consultation to the program for the WSPS (Dautrich, S-76) Dr. Dautrich is an associate professor of education at American International College (AIC) in Springfield, and an independent educational consultant and evaluator. She has, in the past, been professionally affiliated with the Curtis Blake School and/or Curtis Blake Child Development Center; the latter is part of AIC. (Dautrich) Dr. Dautrich’s view—uncontested by the parties–is that language-based learning disabilities stem from neurologically based deficits in perceiving and manipulating phonemes; i.e., small units of sound within spoken language. (Dautrich) According to this model, these deficits impair students’ ability to map printed symbols onto sounds and vice versa, and hence to read and write. To acquire reading and writing skills, these students need remediation at the phonemic level via highly structured, rule-based, sequential interventions that may include methodologies such as LiPS and Benchmark. (Id.) Dr. Dautrich further testified, again without dispute by either party, that research data demonstrates the effectiveness of this type of intervention—which is used by the Curtis Blake Child Development Center and Curtis Blake Day School. (Id.)
Several measures of Student’s reading ability showed skills below grade level. On the Burns and Roe Informal Reading Inventory, after third grade, Student recognized 95% of isolated words at the first grade level, 65% of those at the second grade level, and 45% of those at the third grade level. In orally read passages, Student recognized 99% of the first grade level words, 90% of the second grade words, and 88% of the third grade words. Student’s reading rate was 33 to 39 words per minute. Comprehension of passages was 100% at the first and second grade levels, and 90% at the third grade level. The record does not indicate whether Student read or listened to the test passages. (S-1) On the Rapid Automatic Naming Task (RAN), which measures processing speed, Student performed more slowly than expected age levels. Dr. Dautrich found that Student’s score was consistent with delays in acquisition of grade level reading skills. (S-32) On the Rosner Auditory Analysis Test, Student scored at the kindergarten to early 1 st grade level at isolating and manipulating phonemes within common words, a task which Dr. Dautrich, stated correlates strongly and directly to reading acquisition. (S-32) Student also showed six positive indicators out of a possible ten on the Bangor Dyslexia Test, which Dr. Dautrich stated was signifcantly consistent with the performance of same age dyslexic children. (S-32)
Dr. Dautrich concluded that Student had considerable weakness in various aspects of phonemic awareness and processing and in associating sounds with symbols, along with a slow, labored reading rate. Student’s strengths included using context to identify words, excellent passage comprehension showing that he compensated for reading problems by applying good background knowledge, and a high interest level.
9
The initial IEP for fourth grade issued in June 1999, did not place Student in ILBI, but instead continued the service model of third grade. (S-43) Mother rejected the June proposed IEP on July 7, 1999, reiterating her request for ILBI placement. (S-43)
10
Student had been diagnosed with ADHD at some point during the prior year or two and had been placed on medication. (The record contains no dates of diagnosis or beginning medication.) In December 1999 Student’s ADHD medication was changed, and, subsequently, Student improved his ability to focus and stay on task. (S-25)
11
Dr. Dautrich testified that this was good progress, as she would expect a student with Student’s profile to make about six months’ progress in one year.
12
This comparison is called the Wechsler Ability Achievement Analysis. (Id.)
13
Some of these supports were used by the entire class, such as index cards with vocabulary words, help with note-taking, etc.
14
Parents wanted the IEP to state a specific amount of time for OT services instead of “up to” a given amount, as stated in the original IEP. (Mother)
15
The only other evidence of discipline imposed by the School is found in Mr. Snow’s FBA (S-11), which refers to Student being verbally redirected, not earning time outside, and being sent to the principal on occasion for his behavior.
16
Upon noting that prior testing revealed difficulties with reading-related skills, including slow processing speed, Ms. Adams chose test instruments to measure Student’s reading rate, fluency, and comprehension to see where his skills were automatic and where they broke down. Ms. Adams also sought to assess whether Student’s language difficulties affected his functioning in areas in addition to reading, i.e., organization, and attention. (Adams)
17
Ms. Adams testified that the progress reported by Dr. Dautrich was statistically insignificant. I make no finding on this issue as it was not fully developed at hearing.
18
The full CCSN report was not completed and made available to WSPS until the summer of 2001, after the May TEAM meetings. Ms. Adams’ test scores (S-13) were provided to the TEAM, as was Ms. Grabowski’s report. (Adams, Father)
19
Dr. Charland testified that he did not believe that the proposed IEP sufficiently addressed social/emotional concerns. The record does not indicate whether he shared this concern with the TEAM, although he attended one of the May 2001 TEAM meetings.
20
Ms. Devenitch worked with ILBI students on their phonemic programs, and Ms. Clay worked with small groups of students on science and social studies assignments. (Id.)
21
Student’s sixth grade IEP specified alternative assessments for the MCAS (P-I; S-10)
22
Phoebe Adams testified that the progress found by Dr. Dautrich was not significant. I make no finding on this issue as it was not further developed during the hearing.
24
The only record evidence of when the FBA was conducted is the report date of May 8, 2001. I conclude that the assessment took place shortly before that date, in late April or early March.
25
To some extent, Student’s emotional problems were related to Ms. Chamber’s absence and the ensuing inconsistency in staff coverage. (Charland, Mother, Dautrich, S-11) The School hoped that this issue would not arise in sixth grade. (Dautrich) Even though the teacher’s absence was unexpected, the School was obligated to correct any consequences to Student, and was not relieved of that obligation by any progress that Student made. Manalansan v. Bd. Of Educ. Of Baltimore City , 35 IDELR 434 (D.MD 2001)
Additionally, an incident or incidents had occurred that led Student to feel harassed and/or stigmatized by peers. The record is inconclusive on exactly what occurred. Fausey School staff members (Devenitch, O’Connor) testified credibly that they did not observe Student being taunted or ridiculed. On the other hand, two other witnesses–Student’s mother and therapist—testified consistently and credibly that Student reported name-calling at the Fausey. (Mother, Charland) Moreover, Fausey employees not observing harassment does not mean that it did not occur. As a whole, the record supports the finding that Student did experience name-calling or other harassment, or that an incident or incidents occurred that felt like harassment to him, and that staff had no knowledge of the incident(s). The record also supports a conclusion that this situation contributed to Student’s social and emotional problems during fifth grade. (Charland) Although the school did not know about the incident(s) in question, and so could not necessarily be expected to address the issue in an IEP, it had knowledge of Student’s emotional and behavioral problems.
It also is not clear that the IEP would have been appropriate but for the absence of social/emotional/behavioral goals and services. Student made progress in some of his language skills and also appeared to function well in his mainstream classes. (Snow, O’Connor, Devenitch) However, in fall 2001, Student was to enter middle school with reading, spelling, and writing skills at the late second-grade to mid fourth grade level, some one and one half to three and one half years below the sixth grade level. (S-12) Moreover, Student needed significant modifications in the mainstream (Dautrich), but in sixth grade, many of his ILBI classmates no longer used supports and accommodations such as vocabulary cards in the inclusion classroom. Also, routine group pragmatics instruction was to be discontinued, although if Student had needed it, a group would have been pulled together. (Clay, Devenitch) In her report on her observation of Student at Curtis Blake, Dr. Dautrich herself seemed equivocal as to whether ILBI would provide enough prescriptive language instruction, stating: “Student’s strengths…permit interest and ready grasp of grade-level concepts. As such, it remains difficult to determine the ideal balance between an exclusively prescriptive curriculum and the wider opportunities of traditional grade-level learning. (S-12) She concluded that since Student will likely always have language deficits, access to the general curriculum should not be sacrificed. (Id.)
27
The federal and state regulations are silent on when the TEAM must meet to consider an assessment that is done during the term of an existing IEP. However, under state regulations, the TEAM must review an independent evaluation no later than ten school days after receiving it (603 CMR 28.04(3)). For a full re-evaluation, the school must convene the TEAM and generate a new or amended IEP within 45 school working days after receipt of parental consent. 603 CMR 28.05(1).
28
The Curtis Blake program also conforms to the recommendations of the CCSN and North Shore Children’s Hospital evaluations, supporting the conclusion that it meets the Matthew J. standard.