COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
Weston Public School District
v. Student BSEA #01-0682
DECISION
This decision is issued pursuant to M.G.L. c. 71B and 30A, 20 U.S.C. § 1401 et seq ., 29 U.S.C. § 794, and the regulations promulgated under those statutes. A hearing was held on December 14, and December 19, 2000, at the Bureau of Special Education Appeals in Malden, MA. Those present for the hearing were:
Father
Mother
Andrea Weiss Psychologist
Carol Fernandez Advocate
Rowena Abadi Special Education Teacher, Weston Public Schools
Kristen E. Morrison Special Education Teacher, Weston Public Schools
Robert T. Ronzio Classroom Teacher, Weston Public Schools
Paul Naso Principal, Country School
Regis C. Miller Administrator of Special Education
Mary Ellen Sowryda Attorney for Weston Public Schools
Catherine M. Putney-Yaceshyn Hearing Officer
The official record of this hearing consists of documents submitted by the parties jointly, marked J-1 through J-18; documents submitted by the school marked S-19 through S-27; documents submitted by the parents marked P-19 through P-24 and approximately fourteen hours of recorded oral testimony. Both parties submitted written closing arguments1 and the record closed on January 8, 20012.
ISSUE
Whether the Weston School District was correct in its determination that the Student is not a student in need of special education.
PARENTS’ POSITION
Student is unable to progress in regular education because his disabilities significantly impact his ability to learn. He has made progress while receiving special education services, but not effective progress. The Student is gifted and his learning disability makes it impossible for him to access information which is interesting and appropriate for him.
SCHOOL’S POSITION
Student has both a learning disability and health-related disabilities. He is no longer eligible for special education services because he is making effective progress and is able to access the general curriculum.
SUMMARY OF THE EVIDENCE
1. The Student is eight years old and has been enrolled in the Weston Public Schools since he was in Kindergarten. (J-10, Naso) He is an engaging, motivated, intellectually curious, very bright child with a learning disability surrounding reading and visual motor issues which affect his handwriting. Additionally, he has asthma, and reactive hypoglycemia. (J-4, Ronzio, Abadi, Mother, Father) He began receiving special education services in Kindergarten and has continued to receive varying levels of services throughout the first and second grades3. (J-9, J-10, Mother)
2. Prior to second grade, the Student’s services addressed behavioral and motor issues. (J-8, J-9) In March of 1999, Dr. Ross Greene, a behavioral consultant working with the Parents, recommended that Student receive formal testing. The Team agreed to evaluate the Student and the Parents initially consented, but later withdrew their permission to evaluate in a letter to Paul Naso dated 3/11/99. (Naso) Parents sought an independent evaluation and on May 20 and 29, 1999, Arunas J. Kuncaitis, Ed.D., did a neuropsychological evaluation of the Student. (Naso, J-16, Mother) Dr. Kuncaitis found that Student’s cognitive abilities were in the very superior range. He noted a “primary language based learning disability at the phonemic level” and noted that the Student’s profile was “often seen in dyslexia,” although his reading comprehension also significantly lagged behind his cognitive potential. (J-16) Dr. Kuncaitis recommended that Student receive direct instruction of a rule-based phonetic approach such as Orton-Gillingham during the summer in a one to one or small group format. (J-16) Student’s Mother received Dr. Kuncaitis’ report “very close to the end of the school year” and she provided a copy to the school. She met with Dr. Naso and requested summer services for the Student, but Dr. Naso told her the Student was not eligible to receive summer services. (Mother)
3. The Team met on September 21, 1999. (J-6, Mother) They discussed Dr. Kuncaitis’ report. Rowena Abadi believed that the Student should receive Learning Center support for reading. The Team determined the reading support would take place four times per week and would initially be one-to-one with the possibility of other students joining the group later in the year. (J-6) The Team also discussed the independent O.T evaluation (J-14). The school’s O.T. reported that she did not view the Student as having a motor disability. She noted that the independent evaluator had reached her conclusions without performing any standardized testing and she indicated that strategies and accommodations could be provided to the Student in the classroom without the need for direct services. (J-6) The Parents expressed concern about terminating the Student’s direct O.T. and P.T. services, but the Team recommended consultative services in both areas instead of direct services. (J-6)
4. Parents did not initially accept any part of the IEP proposed by the School in September 1999. (Mother) They believed the Student should receive Orton-Gillingham instruction for reading as recommended by Dr. Kuncaitis. (Mother, Abadi) The School proposed the Reading Recovery Program. (Abadi). The disagreement surrounding the reading program resolved in November, when the parents agreed to the Reading Recovery program and accepted the portion of the IEP which provided for reading services in the Learning Center. (Mother, Abadi)
5. The Team reconvened on December 14, 1999 to review a second independent O.T. evaluation. (J-5, J-13) The report indicated that Student was making effective progress with his fine motor skills although they are not his greatest strength. The Team determined the Student was not eligible to receive direct O.T. or P.T. services given his success in the classroom. Mother expressed disappointment, but accepted the IEP in full.4 (J-6)
6. Rowena Abadi, a special education teacher with a Master’s degree in special education and over thirteen years of experience teaching students with difficulty learning to read, began providing services to the Student on November 12, 1999. (Abadi) In September 1999 the Student’s regular education teacher had administered a Reading Recovery test as part of his regular education curriculum. The Student had read between level 9 and 10, which is the level students are expected to achieve a month before the middle of first grade. In November, Student passed the level 16 test5, which is the level at which students are expected to read at the end of first grade. Student had yet to begin receiving special education, but had made a half a year’s progress in two months. (Abadi).
Ms. Abadi testified that every second grade student in the Country School is given the “benchmark book,” “Ruby the Copycat,” in January as part of the school’s regular education monitoring program. Students read specified pages aloud to their teacher while the teacher takes a running record6. Students are then required to retell the story to the teacher to assess comprehension. If Student is able to read the specified pages aloud with 90% accuracy and retell the story well, he or she “passes” the benchmark book and is found to require no special interventions for reading instruction. The Student passed his January benchmark book. By February 2000, the Student was reading at level 24 on the DRA which corresponds to the lower end of the average range for second graders in May or June. Ms. Abadi thought he was looking good at that time. During the time she provided services, Ms. Abadi consulted regularly with Nan Thompson, the Student’s regular education teacher, and they both saw the student making fast progress in reading. (Abadi)
In March 2000, Ms. Abadi re-administered the Woodcock Johnson subtests, which Dr. Kuncaitis had given to the Student in May 1999 to assess his progress. She then compared the results to the results obtained the prior year and noted the following progress.7 Student scored at least within the average range in all areas. (J-11, Abadi)
Subtest March 2000 May 1999
Letter-Word Identification 2.8 1.4
Passage Comprehension 3.0 1.5
Word Attack 2.6 1.3
By June 2000, Student read (with 98% accuracy) the level 30 book of the DRA, which represents the reading level of third graders in the upper end of the average range in October and November. Student was still in second grade at the time. Student had been reading within the average range since January, according to Ms. Abadi’s testing, but she continued to provide special education services to be sure he was a solid reader with everything in place to allow him to continue to progress. The Student built a strong processing system in reading, especially between January and June. (Abadi)
7. The Team convened for its annual review on June 7, 2000 and discussed the Student’s progress during the past year. The Parents reported that Student had a good year and had improved in his academic skills and behavior. (J-4) They agreed that he had made progress, but believed it was not effective progress. They reported that the Student showed “terrific frustration” when reading at home and avoided reading. (J-4) They further stated that the Student was frustrated in math because he was bored and not challenged. They requested that the Student continue to receive Learning Center support for reading and additionally receive it for math. (J-4)
Nan Thompson, the Student’s regular education teacher, informed the Team that the Student was reading (with excellent comprehension) and spelling on grade level and was very capable in math with excellent computation skills. (J-4) The Parents expressed concern that given the Student’s cognitive potential he should be performing significantly above grade level. Ms. Abadi understood their concern and stated that his cognitive abilities were well above average and his reading skills were in the average range. She stated that he had progressed enormously in the past six months and the Team’s goal was to ensure that he would continue to progress. She said that the Student had all the pieces in place to continue to make solid academic gains. She stated that he had developed excellent strategies for reading, but that reading was still hard work for him and he would require practice. (J-4) She recommended that he be discharged from Learning Center support because he was reading solidly on grade level, was fully able to participate in and access regular classroom instruction, and he did not require specialized instruction to learn. (J-4, Abadi)
The Team considered the Parents’ concerns and determined that the Student was no longer eligible to receive special education services, but that he continued to demonstrate areas of difficulty that needed to be addressed. They proposed writing a 504 accommodation plan that would include an O.T. consult and address health accommodations relating to the Student’s asthma and reactive hypoglycemia. (J-4) The Parents noted their disagreement, but requested further time to review the 504 plan. (Mother, Father) They rejected the Team’s finding of no special needs on July 25, 2000. (J-4)
8. The Team reconvened in the fall of 2000. Mother reported that the Student had continued to struggle with reading during the summer of 2000. He still could not read to himself. He continued to select very easy books, but would read three or four of them per day. The Team again recommended a 504 accommodation plan. The parents rejected the 504 plan because they believed the Student still struggled with reading and writing and required a comprehensive plan that would address all of his needs. (Mother) The School requested a hearing to determine whether or not the Student was eligible to receive special education. (J-1, ) The Student is currently receiving the services outlined on his October 31, 1999-October 31 2000 IEP under the “stay put” provision of the IDEA. (S-19, Morrison, Miller)
9. Ms. Abadi testified that the Student functions at a third grade level. Third grade instruction is designed for students at his level. The Student needs to have daily experiences reading at a level that is appropriate for him. She is confident that the Student is able to decode words, access information and comprehend passages that he reads. (Abadi)
10. Robert Ronzio has taught third grade within the Weston Public Schools for 30 years and is the Student’s current regular education teacher. He viewed the Student as motivated, intellectually curious and willing to share knowledge in discussion and explore topics further. (Ronzio) He finds that the Student is functioning at the third grade level easily and independently and is capable of accessing information that a normal third grader accesses. (Ronzio)
He testified that Student is capable of reading text, but will not self-select text, at the fourth grade level. He is not sure why and stated that the Student tends to take an easy way out instead of challenging himself because he is afraid of failure. He sees him rise to a challenge if he feels comfortable with what is presented to him. He informally assessed Student’s reading at the beginning of the year and found him reading between the end of the third grade and beginning of the fourth grade level. Mr. Ronzio also tested Student’s spelling ability at the beginning of the year and found that he was spelling at the third grade level. Since that time, the Student approached him and asked to be moved up to a fourth grade spelling list and has been progressing well with the fourth grade spelling list. (Ronzio)
Student is as proficient in writing as are most third graders, and is capable of writing a rather sophisticated story. (S-24, Ronzio) His writing has improved significantly since September. He demonstrates a relative weakness in writing mechanics and editing his own work, but those are skills that are taught as part of the regular third grade curriculum. The Student can write and communicate with peers and adults using basic vocabulary used by third graders. (Ronzio)
Student’s mathematics program emphasizes problem solving and logical thinking. Student is able to read problems and figure out the appropriate strategies he needs to solve the problems. He does this readily and without prompting from Mr. Ronzio. He does not struggle with written word problems at all and does not seem to struggle with the weekly “challenge problems” Mr. Ronzio assigns. (Ronzio)
In comparison to the other students in his class, the Student performs in the middle range. Mr. Ronzio believes that if the Student stopped receiving special education services, he would continue to be able to function at the third grade level and beyond.
11. Kristin Morrison testified that she is currently providing reading services to Student by including him in a small reading group of regular and special education third grade students 4×30 minutes/week. (Morrison) She found that the Student is very bright and reads at a solid third grade level. She prepared a progress report for him in November 2000 which stated “Student is currently decoding and comprehending text within a third grade range. At this level, he independently monitors his reading for accuracy and self corrects frequently throughout text.” (P-23) His reading comprehension is good and the written output questions that he does are outstanding. He is an effective participant in the group and is extremely engaging and involved in what the class does. (Morrison)
In addition to working in a small group with the Student, she observes his regular education classroom functioning two other times during the week. She and another third grade teacher, Ms. Kling, provide extra support to all students in Mr. Ronzio’s class. (Morrison, Ronzio) She sees Student “accessing the third grade curriculum with good ability.” He is reading solidly between the third and fourth grade level. The fifth grade level is a reach, but he is able to read a book at that level and discuss what he has read. (Morrison)
Ms. Morrison does not provide specialized instruction to the Student because he does not need it. She includes him in her small group to comply with his IEP, but he no longer needs her to practice phonetic skills and does not require special instruction. She does not think Student will require specialized instruction in the future as long as he receives good teaching. (Morrison)
12. Andrea Weiss has a bachelors and a masters degree in special education and a doctorate in clinical child psychology. (Weiss) She conducted a learning assessment upon the Student at the Mother’s request and made a written report of her findings. (P-19, Weiss) She sent her report to the Mother and it was never provided to the Team.8( Abadi, Ronzio ) She completed her assessment of the Student in one and one half hours.9 (Weiss) She did not speak to any of the Student’s direct service providers nor did she review any samples of his written work other than what he produced during the one and one half hour assessment.
She administered the reading and spelling portions of the Wide Range Achievement Test (WRAT)10 and a standardized reading assessment. The Student attained grade level scores in all areas, including reading comprehension. She testified that the Student had a “very reasonable” sight vocabulary and that when he sees a word he has seen before “he owns it.” (P-19, Weiss).
Dr. Weiss assessed the Student’s written language abilities by administering the writing sample portion of the TOWL3. The Student was asked to write a story with a beginning, middle and end about a futuristic picture and was given fifteen minutes to perform the task.11 Based upon the Student’s sample, Dr. Weiss concluded that every level of his written language ability was below grade level. She found his ability to organize information on an open-ended task was limited. She concluded that when he is called upon to do an integrated task that requires output and production, encoding and organization, his ability deteriorates dramatically. She found that he has trouble taking in and holding on to non-meaningful auditory information, but did not explain how she assessed that ability. She did not review any samples of the Student’s written school work and did not think it would be relevant to compare his classroom work to the writing sample he provided in her office. (P-24, Weiss)
Dr. Weiss testified that the Student is bright and the special education services that he received had worked. However, she did not think he had the skills to decode multi-syllabic words and she thought that his skills would stagnate if he did not continue to receive special education services. She recommended that Student continue to receive regular education third grade reading instruction because he is currently reading on grade level. However, she recommended that his regular education reading instruction be supplemented by specialized instruction in decoding multisyllabic words. She stated that “He’s not a boy you would take out of the regular curriculum.” However, she thought his services should be supplemented with specialized instruction in decoding.
13. The Student’s Parents testified that they had had concerns about the Student’s academic performance since the first grade. The Student’s Mother believed there was a severe discrepancy between how the Student manifested intelligence at home and how he was performing at school. She noted that despite his brightness in other areas, she could not convince him to read the book, Go Dog, Go . The Student told his parents he was the “stupidest reader in the class.” (Mother, Father)
The Mother testified that the Student had enjoyed receiving Ms. Abadi’s reading services during second grade. Reading started to make sense to him and she saw changes in his behavior at home. He had an enormous amount of self-confidence. Ms. Abadi kept Mother informed about his progress and showed her what words the Student could read and how she was able to tell he was reading at certain levels. Ms. Abadi and the classroom teacher were always assessing the Student’s reading skills. (Mother)
In the third grade the Student continued to receive special education services for reading, but the services were provided in a different manner. Instead of receiving one to one services focusing on phonetic awareness, he was a member of a small reading group taught by Ms. Morrison, the third grade special education teacher. The Student continued to tell his parents he was one of “the stupidest readers” in his class. The Parents received one progress report from Ms. Morrison, which indicated that the Student did not have any problems with decoding and had met all of the IEP goals. (P-23, Mother, Morrison) The Student’s Parents do not agree that he has met his IEP goals. (Mother)
The Parents testified that the student struggles with his homework and they both spend a great deal of time helping him to complete it. They agreed that he does computational math very easily and enjoys doing it. They stated that he finds word problems difficult and can only do them if someone reads the problems to him. When he gets new spelling words he refuses to write them at home and will not write them until the test. Mother admitted that his writing has improved and is legible. The Parents agreed that the writing that the Student did about his trip to Plimoth Plantation was a very good sample and one of the best writing samples that the Mother has seen. (Mother)
The Parents testified that the Student is gifted and learning disabled and consequently can not access the information that he wishes to access. (P-22, Mother) They expressed concern that when he writes he is unable to express all that he knows about a given topic. They claim that he can not access the general curriculum and point to his inability to use a dictionary to look up an unfamiliar word and his inability to use an encyclopedia to find information that interests him. Student’s Mother stated that the Student was not able to access the general curriculum and then find additional information about what he has learned on his own. The only way for the Student to obtain information that he considers interesting is for somebody to read it to him. She thinks he will manifest behavior problems because he is not able to access information that is appropriate for him. (Mother, Father)
FINDINGS AND CONCLUSIONS
After careful consideration of the entire evidentiary record, and of the arguments of both parties, it is my determination that Weston was correct in its determination that the Student is not eligible to receive special education services.12 My reasoning follows.
A two pronged analysis is used to determine whether a student is eligible to receive special education. (M.G.L. c. 71B, 1, 603 C.M.R. 28.02(9). The first prong of the analysis involves determining whether the student has a disability that is recognized by the law. Here, there is no dispute that the Student has a learning disability. There is, however, a difference of opinion regarding the specific nature of the Student’s learning disability and the extent to which it affects the Student’s ability to access the general curriculum.
The evidence shows that the Student has a non-specific learning disability which has affected his development of reading skills. The record does not support the Parents’ position that the Student has dyslexia, as there was no expert testimony or documentary evidence to support such a diagnosis. It does, however, support the finding that Student’s learning disability affected the Student’s early acquisition of phonetic skills. There is also evidence that the Student has some visual motor difficulty which affects his handwriting. I did not find sufficient evidence to support Dr. Weiss’ testimony that the visual motor difficulty is severe and far reaching. There is no dispute that the Student has been diagnosed with asthma and reactive hypoglycemia.
The second prong of the analysis requires a showing that because of the identified disability, the student is unable to progress effectively in regular education and requires special education to successfully develop his or her individual educational potential (M.G.L. c.71B, 1; 603 C.M.R. 28.02(9)). To progress effectively in regular education means to “make documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to chronological age and developmental expectations, the individual educational potential of the child, and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district.” (603 CMR 28.02(18) Indicators of a student’s inability to make effective progress include not performing up to expected levels on standardized, criterion-referenced, or curriculum based assessments, or failing to earn promotion to the next grade level at the end of the school year. (Massachusetts Department of Education Eligibility Guidelines for Special Education, 1994.)
The preponderance of the credible evidence establishes that the Student has made effective progress in the second grade and during the first half of the third grade. The Student is performing above grade level expectations in math and spelling, between the third and fourth grade levels in reading and at the third grade level in writing without any modifications to the curriculum or any specialized instruction. Although he is receiving support from the third grade special education teacher, he does not require specialized instruction or modifications to the general curriculum and would not have difficulty accessing the curriculum without her support.
I relied heavily upon the testimony of the Student’s teachers in assessing the Student’s ability to make progress in the regular education classroom as I found them very credible. Ms. Abadi worked very closely with the Student during the second grade and monitored his progress diligently. She testified that the Student made a half a year’s progress in reading while receiving only regular education services and progressed to a level beyond third grade with special education interventions. Given her years of relevant experience and first hand knowledge of the Student, her opinion, that the Student is reading solidly on grade level and has all of the necessary tools to be a successful reader, must be given considerable weight.
Mr. Ronzio’s testimony was equally helpful in assessing the Student’s educational progress. As the Student’s current regular education teacher, he spends the majority of each school day with the Student. His extensive experience teaching typically developing third graders coupled with his knowledge of the individual Student’s performance make his assessment of the Student as a learner particularly credible. He is clearly competent at evaluating the progress of a third grade student and comparing that performance to his own expectations of progress. He has seen the Student make a great deal of progress already this year. His opinion that the Student is functioning at the third grade level easily and independently and is capable of accessing the same information as other third graders is reliable.
Kristin Morrison’s testimony was also credible and useful. She has worked with the Student in both the special education and regular education environments, which gives her a unique perspective of the Student’s abilities. Her testimony demonstrated that she has been assessing and monitoring the Student’s performance regularly since the beginning of the year. Her opinion that the Student is making progress, is reading at or above grade level, and is able to access the curriculum without specialized instruction is entitled to significant weight.
I gave little weight to the testimony of Andrea Weiss due to her lack of direct knowledge of the Student’s classroom performance and academic abilities and the very limited time that she spent with the Student. She admittedly only considered the results of her own limited testing in making broad recommendations regarding the Student’s educational needs. She testified that the Student’s test scores indicated he was performing at grade level in each of the areas she tested, yet claimed that the Student was not making progress. By choosing to examine only very limited data, she overlooked relevant data which would have indicated that the Student was making progress and performing at grade level. Had she reviewed the Student’s recent work samples, spoken to his direct service providers, or conducted a comprehensive evaluation, her conclusions may have been different.
The Parents’ testimony demonstrated that they are genuinely concerned about the Student’s academic performance and they believe that he is eligible to receive special education. However, they have not provided reliable evidence to rebut the School’s testimony that the Student is making effective progress in the general curriculum, nor have they provided evidence regarding the Student’s true cognitive potential.
In their closing argument, Parents admit that the Student has made progress, but assert that the progress he has made is not effective progress. They claim that because the Student’s cognitive potential is high, he should be performing at levels beyond the third grade level. There is no reliable evidence that the Student is not performing in keeping with his cognitive potential. Nobody disputes that the Student is bright. However, it does not necessarily follow that because the Student is bright, he should be one of the highest performing students in the third grade. Further, the Parents’ belief that the Student should be performing significantly above grade level seems to be based upon one piece of evaluative data, the I.Q. scores obtained by Dr. Kuncaitis in May 1999. Aside from the fact that the record shows the Student’s skills have improved significantly enough that testing results obtained in May 1999 are no longer relevant in considering the Student’s eligibility, the law requires that the Team “draw upon information from a variety of sources”13in making its eligibility determination. The evidence shows that the Team considered reports from the Student’s regular and special education teachers, input from the parents, standardized test scores, and the Student’s performance on “benchmark books” in making its eligibility determination.
The Parents assert that the Student is “gifted” and as such should be accessing information beyond the third grade level. Dr. Naso informed the Parents at the June 7, 2000 Team meeting that it would be extremely rare to make such a determination at the primary level. (J-4) Further, neither federal nor Massachusetts law recognizes giftedness as a disability entitling a Student to special education services. 34 CFR 300.7, 603 CMR 28.02(7). Mr. Ronzio and Ms. Abadi both testified that it is typical for third grade students to be curious about subjects that are not covered in the third grade curriculum and also typical for third graders to require assistance in accessing information about such subjects. Although not required to do so by law, the School has offered to provide the Student with assistance in accessing information (beyond the curriculum) that he would find interesting in the library.14
Although the Parents’ perception of the Student’s academic abilities differs from that of his direct service providers, I can not ignore the credible testimony of the professionals who assess his progress within the classroom on a daily basis. The Parents’ own witness found the Student’s skills to be on grade level. They have not provided any evidence that would lead me to conclude that the Student should be performing at a level other than that at which he is currently performing.
I did not find any irregularities in the Team process with respect to its finding that the Student is not eligible for special education.15 The Parents asserted that the Team acted inappropriately when it substituted Ms. Morrison’s services for Ms. Abadi’s during the third grade. The evidence shows that the Student received the services specified by the last accepted IEP during both second and third grade. The IEP required that the Student receive reading services from a Learning Center teacher 4×30 minutes per week. Although Ms. Abadi provided these services in a one to one format during the second grade, the IEP did not require that the services be provided in that format. In fact, the Appendix to the IEP reflects the fact that the services would initially be one to one, and that other students may join the group at a later date. The IEP also did not require that the reading services consist of any particular reading program. Since Ms. Morrison concluded that the Student did not require further practice with phonetic awareness, she provided reading services that were appropriate to the Student’s needs. (J-6)
The Parents alleged the Team erred by not writing new IEP goals for the Student after his teachers reported he had fulfilled his IEP goals. However, at the time that the Student’s teachers determined that he had met his IEP goals, the Team also determined he was no longer eligible for special education services. Instead of writing new IEP goals, the Team presented its findings to the Parents and proposed a 504 accommodation plan. The School requested a due process hearing and continued to follow the last accepted IEP in accordance with the law and was not required to write new IEP goals. (603 CMR 28.07, 34 CFR 300.514)
The Parents further claimed that the Team erred by not considering the Parents’ views in reaching its determination that the Student is not eligible for special education. The evidence shows that the Team considered the Parents’ views, but disagreed with them. It is entirely appropriate for a Team to propose a plan with which the Parents disagree. The Parents’ recourse when it disagrees with the Team’s finding is to reject said finding and request a due process hearing. (603 CMR 28.05(2)(a)(2))
ORDER
The determination of the Weston Public Schools that the Student is not eligible for special education services is confirmed.
By the Hearing Officer,
_____________________________
Catherine M. Putney-Yaceshyn
Dated: February 2, 2001
1
The parents attached documents which were marked “Appendix A” to their closing argument. Page 6 of parents’ argument included a statement that it would have posed an unreasonable burden for parents to have sought out experts in the field of educating the gifted and learning disabled. In accordance with the BSEA hearing rules, the Hearing Officer did not consider “Appendix A” in rendering this decision as said documents were not admitted into evidence at any time during the proceedings. The school district did not have the opportunity to object to the admission of said documents and the hearing officer was not able to ask questions regarding the relevance of the documents in relation to the Student.
2
The record was scheduled to close on January 5, 2001, upon the Hearing Officer’s receipt of closing arguments. However, Parents contacted the BSEA on Friday, January 5, 2001, and indicated that they were having difficulty faxing their closing argument and would send it by Federal Express. The Hearing Officer allowed the record to remain open until January 8, 2001, at which time the Parents’ closing argument was received via fax and Federal Express and the record closed.
3
The Kindergarten IEP (2/98-2/99) provided for consultation (1×15 minutes/week) with a behavior counselor, consultation 1×7 minutes/week with the occupational therapist, and consultation 1×7 minutes/week with the physical therapist. Direct services were provided in OT (2×30 minutes/week) and PT (1×30 minutes/week). The first grade IEP provided for virtually the same services as the previous IEP, except that the behavior consultation was not included.
4
This IEP was the last accepted IEP (10/31/99-10/31/00) and provided for consultation with Learning Center teacher regarding reading (1x10minutes/week); O.T. consult (2 hours per year); P.T. consult (2 hours per year); and direct services from the Learning Center teacher in reading (4×30 minutes/week). (J-5)
5
The level 16 test was from the Developmental Reading Assessment (DRA) which is used on students after the first grade level. The Reading Recovery program is useful for students through the first grade and then Weston uses the DRA. The levels on the tests are comparable through level 18. (Abadi, S-21)
6
The witness testified that a running record is a coded system that is used to record everything that the child does while reading, such as pausing, moving, self-correcting. The data can be used to make conclusions about the nature of the student’s reading and to calculate the accuracy of the student’s reading.
7
Results are reported in terms of grade level equivalents.
8
The School received a copy of the report shortly before the hearing. (Ronzio, Abadi)
9
She testified that in addition to the testing she completed, she reviewed documents provided by the Mother and Dr. Kuncaitis’ report.
10
Dr. Weiss testified that she did not assess the Student’s math skills because math was not an issue for the Student.
11
Dr. Weiss testified that the Student required more than fifteen minutes to complete the task, but she did not know how much more that fifteen minutes he required. Her report does not mention the fact that the Student was given extra time to complete his writing sample. (Weiss, P-19).
12
The parties agree that the Student has health issues which necessitate a 504 accommodation plan. The parties did not request that I made a finding as to the appropriateness of the proposed 504 plan and did not provide sufficient evidence for me to make such a determination.
13
34 CFR 300.535
14
The Student has not made use of this offered service.
15
The Parents’ closing arguments raises issues with respect to procedures followed in the development of prior IEPs. However the Parents accepted said IEPs and can not now obtain relief for alleged procedural errors. The hearing held on December 12 and December 19 addressed only issues pertinent to the most recent rejected IEP.