XYZ Public Schools – BSEA #10-2961
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: XYZ Public Schools
BSEA # 10-2961
This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL c. 71B), the state Administrative Procedure Act (MGL c. 30A), and the regulations promulgated under these statutes.
A hearing was held on December 3, 2009 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:
D. S. (via telephone) Parents’ Educational Advocate
K. M. (via telephone) Parents’ Educational Consultant
M. K. School Psychologist, XYZ Public Schools
J. T. Special Education Teacher, XYZ Public Schools
P. R. Special Education Tutor, XYZ Public Schools
J. M. Director of Special Education, XYZ Public Schools
Alisia St. Florian Attorney for XYZ Public Schools
Ann F. Scannell BSEA Observer
The official record of the hearing consists of documents submitted by XYZ Public Schools (XYZ) and marked as exhibits S-1 through S-6; documents submitted by Parents and marked as exhibits P-1 through P-16 except the last three pages of exhibit P-7; and approximately one day of recorded oral testimony and argument. XYZ’s supplemental written closing argument was received on December 15, 2009. Oral closing arguments were made by telephone on December 16, 2009 and the record closed on that date.
On February 25, March 4, March 6, and March 9, 2009, Student underwent an educational evaluation by XYZ as part of a three-year re-evaluation. By letter dated October 24, 2009 and received by XYZ on November 2, 2009, Parents requested a publicly funded, independent educational evaluation of their son. On November 5, 2009, XYZ filed a Hearing Request with the Bureau of Special Education Appeals, seeking a determination that its educational evaluation was appropriate and comprehensive and that Parents therefore were not entitled to a publicly funded, independent educational evaluation.
It is XYZ’s position that its educational evaluation was appropriate and comprehensive. XYZ argues that through this testing, it was able to identify all of Student’s areas of need and develop an IEP with appropriate goals, which were met and are continuing to be met through the special education services XYZ is providing. XYZ believes that additional testing will not shed any further light on these issues.
It is Parents’ position that XYZ’s evaluation was neither appropriate nor comprehensive. They argue that the testing conducted by XYZ did not provide an in-depth understanding of Student’s specific weaknesses in the areas of spelling and writing, that XYZ did not use a sufficient range of test instruments, that there was a variety of errors in the testing, and that there is an irreconcilable difference between Student’s functional performance in the classroom observation (that was part of XYZ’s educational evaluation) and XYZ’s educational testing. Further, Parents point out that subsequent testing has shown a significant drop in Student’s writing test scores, which Parents argue calls into question the objectivity of XYZ’s testing.
The issue to be decided in this case is whether the educational evaluation conducted by XYZ in February and March 2009 was appropriate and comprehensive; and if not, whether XYZ must fund an independent educational evaluation.
Student Profile and Current IEP . Student, who is nine years old, lives with his parents in XYZ, MA. Student attends the 4 th grade at XYZ’s W School. Student is bright, with overall cognitive ability in the upper end of the average range. He has very strong verbal skills, and has an extensive vocabulary with good retrieval skills. (Exhibits S-2, S-4; testimony of Mother)
Student has been diagnosed as having a specific learning disability in the area of written expression. He is often very good at doing things in isolation but is slower and less accurate when having to pull together skills into a more complex or integrative task. He also has weaknesses in visual processing, and he has a history of difficulty establishing basic reading and spelling skills, as well as some relative difficulty with fine motor function and some upper motor instability. (Exhibits S-2, S-4)
Pursuant to his current IEP (for the period 5-6-09 to 5-6-10), Student is placed within a mainstream, 4 th grade classroom, with pull-out services. Student is to receive pull-out services provided by the special education teacher, three times per week for forty-five minutes each; pull-out writing instruction provided by the special education teacher two times per week for forty-five minutes each; and pull-out occupational therapy one time per week for sixty minutes each. Student is also provided in class support by the special education teacher for written expression. Extended year services are provided to prevent regression of skills. The IEP contains a spelling goal, a goal for written expression and a goal in visual motor skills. The IEP also called for accommodations, including but not limited to, preferential seating, extended time on writing assignments, clarification of directions when necessary, use of structured graphic organizers, breakdown of tasks into smaller chunks for writing, access to computer software, visual models, pre-writing tasks, modification of worksheets and consistent communication with parents. (Testimony of T.; exhibits S-2, P-3)
On its face, the IEP indicates that it was accepted in full. Mother testified that she was not in agreement with the IEP and did not believe that Student’s level of IEP services were sufficient to meet his needs, but that she accepted the IEP because she believed that if she did not do so, services would not commence. (Testimony of Mother; exhibits S-2, P-3)
Evaluation History . Student initially underwent an occupational therapy evaluation by XYZ in the spring of 2005 when he was a preschooler. The evaluation results revealed that Student’s fine motor and visual perceptual skills were within normal limits for his age. No direct services were recommended.
Student was again assessed by XYZ in January 2006 when he was in kindergarten. His teacher had expressed concern that he was making little progress with letter identification and letter/sound correspondence. Student underwent a psychological evaluation by M.K., M.Ed. She administered the Wechsler Preschool and Primary Scale of Intelligence II test (WPPSI-II) and the Wide Range Assessment of Memory and Learning 2 screening subtest (WRAML-2). (Exhibit P- 4)
Student underwent an independent neuropsychological evaluation by Susan Downing, Psy.D. in January and February 2008. As part of this evaluation, Parents reported to Dr. Downing that Student was struggling in school with the learning and application of symbolic material in reading and spelling and also with some open-ended tasks. At the time of the evaluation, Student was receiving occupational therapy and physical therapy services weekly from XYZ. He was also attending XYZ’s Learning Center multiple times weekly for direct intervention with his reading and writing skills. (Exhibit S-4)
In January 2009, XYZ proposed to conduct a three-year reevaluation for Student. XYZ sent Parents a consent form noting their intent to conduct an educational assessment, occupational therapy assessment, a physical therapy assessment, and a classroom observation of Student. The educational evaluation was to address Student’s areas of weakness in spelling and written language. Parents consented to a physical therapy assessment, an observation (so long as Parents were notified of the date and time and given an opportunity to be present), and an educational assessment, including reading, spelling, comprehension, writing and math subtest of the WIAT-II, reading and comprehension subtests of the GORT-4, reading and spelling subtests of the WIST and the writing subtest of the TOWL-3. Parents also postponed a decision on the recommended occupational therapy assessment because they had pursued an outside occupational therapy evaluation at Children’s Hospital and were awaiting the results. Parents signed the consent form on January 10, 2009. (Exhibit S-6)
Parents agreed to waive cognitive testing as part of the three-year re-evaluation because of the recent (January/February 2008) neurological evaluation conducted by Dr. Downing. Parents signed the waiver on January 25, 2009. (Exhibit S-6)
On February 25, March 4, March 6, and March 9, 2009, J.T. conducted XYZ’s educational assessment that included standardized testing and a classroom observation of Student. (Exhibits S-3, P-1) It is this evaluation that is the subject of the instant dispute—that is, whether this evaluation is comprehensive and appropriate—and the evaluation will be discussed at length within the Discussion section, below.
On October 23, 2009, Parents sent Student for a private evaluation at Lindamood Bell. The evaluator conducted certain subtests of various test batteries, including the Wide Range Achievement Test-4 (Form Green), the Gray Oral Reading Test (Form A), the Test of Written Language-3 and the Informal Test of Writing. (Exhibits S-5, P-14)
The Lindamood Bell evaluation included no interpretation of Student’s test scores, nor did the evaluator provide any specific recommendations. There was a general recommendation that Student would benefit from intervention to develop his language and literacy skills by intensive instruction for two hours a day/five days per week for an initial period of 12-16 weeks. Neither the evaluator nor anyone else from Lindamood Bell testified at the hearing. (Exhibits S-5, P-14)
In a letter dated October 24, 2009 and received by XYZ on November 2, 2009, Parents requested approval for public funding of an independent educational evaluation on the grounds that XYZ’s evaluation was not comprehensive and appropriate. Parents believed that a more comprehensive and complete evaluation of Student’s writing and spelling skills was needed to determine appropriate educational supports and services. (Exhibit S-1)
XYZ responded to Parents’ request by filing a Hearing Request with the Bureau of Special Education Appeals on November 5, 2009. XYZ requested that the BSEA find that it’s testing was comprehensive and appropriate and therefore, that Parents are not entitled to a publicly funded, independent educational evaluation. (Exhibit S-3)
Student is an individual with a disability falling within the purview of the Individuals with Disabilities Education Act (IDEA), 20 USC 1400 et seq. and the state special education statute, M.G.L. c. 71B. Accordingly, Student is entitled to a free, appropriate public education (FAPE). Student’s eligibility, entitlement to a FAPE, status and current IEP services and accommodations, are not in dispute.
The narrow issue to be decided in this matter is whether Parents are entitled to a publicly funded, independent educational evaluation. It is not disputed that Parents are entitled to a publicly funded, independent evaluation only if XYZ’s evaluation of Student was not both “comprehensive” and “appropriate”.1
The purposes of XYZ’s evaluation were to sufficiently assess Student’s educational deficits to permit the development of an appropriate IEP and to ensure the provision of FAPE to Student.2 I consider whether XYZ’s educational evaluation was appropriate and comprehensive for these purposes and within this context. It is not relevant that the educational assessment might have included additional testing (even testing that may have been requested by Parents or that might have enhanced the evaluation) or could have been written more thoroughly or more accurately, so long as XYZ’s evaluation met the applicable standards of comprehensive and appropriate.
Since XYZ is the party seeking relief, it has the burden of persuasion.3
As noted above, on February 25, March 4, March 6, and March 9, 2009, J.T. conducted the educational assessment (including standardized testing and a classroom observation of Student) that is the subject of the instant dispute. (Exhibits S-3, P-1; testimony of T.)
Ms. T.is a special education teacher at XYZ’s W School. She has worked at the W School since September 2004. She holds a master’s degree in education. She has conducted approximately twenty educational evaluations per year for the past five years. Those educational evaluations were similar to the one she conducted of Student. Currently, Ms T. is Student’s special education teacher and case manager. She was also Student’s special education teacher during the previous school year when he was in 3 rd grade. As Student’s special education teacher this year and last year, Ms. T. has worked with Student on his spelling and writing skills. (Testimony of T.)
The principal purpose of this educational evaluation was to assess Student’s writing and spelling. XYZ did not have concerns in the areas of reading or math. However, Parents requested information in the areas of reading and math, and XYZ complied with this request by having Ms. T. test Student in these areas as well. (Exhibit S-6; testimony of T.)
As part of her educational evaluation of Student, Ms. T. administered the Wechsler Individual Achievement Test, 2 nd edition (WIAT-II), the Gray Oral Reading Test, 4 th edition, Form A (GORT-IV), the Test of Written Language, 3 rd edition, Form B (TOWL-3), the Comprehensive Mathematical Abilities Test (CMAT) and the Word Identification and Spelling Test (WIST). Ms. T. chose to administer the WIAT because it is a battery of tests that looks at reading, writing, and math so the evaluator is able to get a very good overall sense of where Student is in his learning. It is also broken down into subtests. She chose the GORT to further look at Student’s reading, the TOWL to further look at Student’s writing, and the CMAT to further look at his math. In addition, the WIST allowed Ms. T. to look at both reading and spelling. By administering these tests, Ms. T. had multiple sources of information for each subject area. Ms. T. chose these particular tests because she believed that they would appropriately focus on Student’s areas of need in writing and spelling. (Testimony of T.)
According to Ms. T.’s report, the WIAT-II measures reading, math and written language skills. The reading subtests include Word Reading, Pseudo Word Decoding and Reading Comprehension. The math subtests include Numerical Operations and Mathematical Reasoning and the Written Language subtests include Spelling and Written Expression. The GORT-4 measures oral reading and includes scores in Rate, Accuracy, Fluency and Comprehension. The TOWL-3 is comprised of contrived writing and spontaneous writing. The contrived writing portion focuses on the isolated evaluation of skills through five different subtests: Vocabulary, Spelling, Style, Logical Sentences and Sentence Combining. The spontaneous writing portion focuses on evaluating skills in relationship to a narrative passage generated by Student and is scored in three areas: contextual conventions, contextual language and story construction. The WIST consists of two main subtests: word identification and spelling. Both subtests contain items in regular and irregular words. There are also two supplemental subtests: Pseudo Word Decoding and Letter Sounds. The CMAT is a test of mathematical skills contained in six core subtests and six supplemental subtests. The six core subtests are Addition, Subtraction, Multiplication, Division, Problem Solving and Charts, Tables and Graphs. The supplemental subtests are Algebra, Geometry, Rational Numbers, Time, Money and Measurement.4 (Exhibits S-3, P-1)
The spelling subtest of the WIAT-II, the spelling subtest of the TOWL-III and the spelling subtest of the WIST were used to assess Student in the area of spelling. These subtests measure spelling skills in slightly different ways. The WIAT-II asked Student to spell dictated words he heard in sentences, the TOWL-III asked Student to write an entire sentence from a dictation and the WIST asked Student to spell both regular and irregular dictated words that are given in sentences. The WIST also allows the evaluator to examine Student’s errors based on syllable type. (Testimony of T.)
The written expression subtest of the WIAT-II and several subtests of the TOWL-III were used to assess Student in writing. The WIAT-II gave Student one minute to make a list of as many things he could think of that were round. It also required him to write one complete, grammatically correct sentence when given two or three short sentences. The various subtests of the TOWL-III asked Student to write a sentence incorporating a stimulus word, write sentences from dictation, edit an illogical sentence so that it made better sense, integrate several short sentences into one grammatically correct sentence, and write a well-written story when given a picture and a fifteen minute time limit. (Exhibits S-3, P-1; testimony of T.)
Ms. T.’s evaluation results revealed that Student consistently performed in at least the average range on the various subtests for reading skills. He scored in the 50 th percentile on word reading, 45 th percentile in pseudo word decoding, 55 th percentile in word identification, 75 th percentile in rate, 75 th percentile in accuracy and 84 th percentile in fluency. On the reading comprehension subtests, Student scored in the high average range (82 nd percentile) and the above average range with a percentile rank of 91. Student scored in the below average range on only one subtest. He was in the 21 st percentile for sound-symbol knowledge. (Exhibits S-3, P-1)
In written language, specifically spelling, Student scored in the average range (25 th percentile on the WIAT-II subtest, 50 th percentile on the TOWL-3 subtest and 25 th percentile on the WIST subtest). In his written language isolated skills, Student scored in the average range in written expression (27 th percentile), vocabulary, (63 rd percentile) and style (37 th percentile). He also scored in the average range on the logical sentences subtest (75 th percentile). He was in the above average range on the sentence-combining subtest (84 th percentile). (Exhibit S-3; testimony of T.)
Student’s overall scoring in the spontaneous writing portion of the TOWL-3 fell in the average range (35 th percentile). There are three portions to the assessment: contextual conventions, contextual language and story construction. Student was given a picture and asked to write a well-written story about the picture given a 15-minute time constraint. He was further reminded that well written stories have a beginning, middle and end. They also contain character names and action. The contextual conventions portion of the assessment evaluates Student’s spelling ability and adherence to punctuation and capitalization rules. Here, Student performed in the average range (25 th percentile). The contextual language portion evaluates the story for the quality of Student’s vocabulary, grammar and syntax. Student scored in average range (63 rd percentile). The story construction portion evaluates the quality of the composition in terms of prose, plot and organization. Again, Student scored in the average range (25 th percentile). (Exhibits S-3, P-1; testimony of T.)
Ms. T. testified that the results of the TOWL-3 were consistent with the classroom written work that Student produces. Ms. T. noted that Student had a difficult time constructing stories that follow a logical sequence on the TOWL-3. He experiences the same difficulty in the classroom. Student has difficulty pulling his ideas together and organizing them. Difficulty with spelling and punctuation also interfere with Student’s ability to write. Ms. T. noted these difficulties both in the testing and in Student’s classroom performance.
In math, Student’s scores ranged from average to superior. He was very confident during this portion of the testing. (Exhibits S-3, P-1; testimony of T.)
With respect to her educational evaluation in general, Ms. T. testified that she used a variety of test measures to test each area because, in her opinion, it is difficult to gain a good sense of Student if you just look at one test on one day. Although different assessments are similar, they may look at the same skills in a different way. Ms. T. testified that she usually conducts at least two different tests for each identified area but with this student, she used three different spelling tests and two different writing tests. Ms. T. tested Student over 4 days in 45-minute sessions. The sessions did not exceed 45 minutes because Student would fatigue and become bored. Testing over several days also gave Ms. T. the opportunity to do further testing, if necessary. Ms. T. did not feel, however, that additional testing was needed for Student. According to Ms. T., conducting more assessments in these areas would only have produced similar results. (Testimony of T.)
Ms. T. testified that the tests she administered to Student for purposes of the educational evaluation were valid and reliable because Student worked hard, paid attention, followed directions, asked for clarification, and didn’t refuse to complete any task. She also found that Student’s test scores were consistent with his classroom work. (Testimony of T.)
As part of her educational evaluation, Ms. T. also conducted classroom observations of Student. On February 25, 2009, Ms. T. observed Student in math class and on March 20, 2009, Ms. T. observed Student both in reading class and in writing class. She testified that generally she conducts a classroom observation of a student to see how he functions in the classroom. Since Ms. T. doesn’t service Student in math or reading, she was able to observe those classes but since she services him in writing and spelling, she chose to observe Student working with Ms. Rodday in his regular education writing class. Ms. Rodday was Student’s special education tutor at the time of the observation. (Exhibits S-3, P-1; testimony of T., Rodday)
Ms. T. testified that the observations she made of Student in the classroom were consistent with her test findings. (Testimony of T.) In math class, Student participated with the class, volunteered responses and appeared to enjoy the classroom activities. (Exhibits S-3, P-1) In reading class, Student volunteered answers, participated with the group, did well answering the group questions, and had written as much as the other three peers in his group when answering an open ended question by the teacher. (Exhibits S-3, P-1)
In writing class, Ms. T. reported that the teacher, Ms. Shear, advised students that they would begin working on realistic fiction. Ms. Shear gave them an example of realistic fiction by reading a personal narrative she had written and asking students how they could change the different parts (the character, the ending, and the feelings). Student began working with his tutor, Ms. Rodday, to change a story he had written. Ms. Rodday made a list of things Student could change, and Student changed the place, the season, and the weather. Ms. Rodday set up a page for Student to plan out the story. At some point, Ms. Shear told students that they could move on to another story if they were finished with their first one. Student continued writing his plan for the first story. (Exhibit S-3, P-1)
Ms. T. testified that the observations she made of Student during the classroom observations were consistent with her test findings. In her report, Ms. T. did not discuss the writing that Student produced during the observation. She testified that during an observation she is looking at what Student is doing in the classroom, not looking at his actual work product. She did note that Student has accommodations in his IEP that provide for engaging in planning strategies before he begins to write. It was Ms. T.’s opinion that the work that Student produced during her observation of him was not a story. Rather, it was a plan. Ms. Rodday, who was working with Student during the observation, testified that she had the same recollection. Student was planning and continued working on his plan with Ms. Rodday even though the teacher told students that they could move on to another story if they were finished with their first. (Exhibits P-5, P-8; testimony of T., Rodday)
In sum, Ms. T. presented as an experienced and capable evaluator who evaluated Student using a range of standardized tests within each subject area of concern, and who provided a detailed written report of her findings. Ms. T. had the additional advantage of being Student’s special education teacher, allowing her to compare her test results with Student’s output within the classroom. Ms. T. provided credible and persuasive testimony regarding the appropriateness and comprehensiveness of her evaluation methodology and results, including her evaluation written report.
To rebut the testimony of Ms. T., Parents relied principally on the testimony of their own expert, K. M., who reviewed Ms. T.’s evaluation at Parents’ request. Ms. M. testified that she has a master’s degree in special education; she has been conducting evaluations for the past nine years and also provides analysis of testing for parents; and she is the Director of the Commonwealth Learning Center. Ms. M. testified that prior to opening the Commonwealth Learning Center, she was employed in public schools as an inclusion special educator. Ms. M. testified that she has written IEPs, served as the chairperson in IEP meetings and attended IEP meetings on behalf of students. Ms. M. is familiar with and has administered the WIAT-II, TOWL-3 and GORT-IV utilized by Ms. T.. Regarding Student’s testing, Ms. M. verified that she had the opportunity to review Student’s testing booklet, forms and score sheets. Ms. M. did not evaluate Student and has never met Student. (Testimony of M.) I found Ms. M. to be a credible expert witness.5
Parents sought to attack the appropriateness and comprehensiveness of Ms. T.’s evaluation in several ways. First, Parents sought to show the lack of appropriateness of Ms. T.’s evaluation by demonstrating that Ms. T.’s written report contains a number of scoring errors and errors in transposition from Student’s scoring sheets to the report. Parents relied upon Ms. T.’s own testimony, the testimony of Parents’ expert (Ms. M.), and documentary evidence (i.e., documents relative to Ms. T.’s evaluation).
On the TOWL-3, the data and scoring sheet indicated that Student had a standard score of 11 and a percentile rank of 63 on the contextual language subtest. Nonetheless, Ms. T. wrote in her report that Student’s standard score was 9 and his percentile rank was 37. Again on the contextual language subtest, Student’s score sheet reflected one sentence fragment. Ms. T.’s report stated that Student had no sentence fragments. Also on the TOWL-3, the score sheet indicated that Student had no run-on sentences but Ms. T.’s report stated that Student had one run-on sentence. On the logical sentences subtest of the TOWL-3, Student’s score sheet totaled 11 raw points. Ms. T. incorrectly counted 12 raw points. On the sound symbol subtest of the WIST, the scoring sheet indicated a standard score of 21 and a percentile rank of 88 when the sheet should have indicated a standard score of 88 and a percentile rank of 21. The descriptor in her report, however, is correct because it indicates that Student’s score was below average (i.e., not in the 88 th percentile). (Exhibits P-1, P-11, P-12, S-3; testimony of M., T.)
Although these inconsistencies affected Student’s raw scores, they only impacted Student’s percentile rank in one instance—that is, on the contextual conventions subtest of the TOWL-3, Student’s percentage decreased from the 25 th percentile to the 16 th percentile, thereby moving him from the average range to the below average range. (Exhibit P-11; testimony of M., T.)
While these facts establish that Ms. T. was careless in reporting some of Student’s scores, the evidence (including the testimony of both Ms. T. and Ms. M.) demonstrated that these errors did not affect the overall interpretation of Student’s test scores. Therefore, I find these identified errors to be de minimus, having no impact on the validity or reliability of Ms. T.’s evaluation.
However, there was one scoring error that did, in fact, impact Student’s percentile rank score. On the contextual conventions subtest of the TOWL-3, Student’s score would have decreased from the 28 th percentile which is average, to the 16% percentile, which is below average. Despite this notably lower contextual conventions performance, Ms. T. testified that she still would not be concerned enough with one subtest in the below average range to consider conducting additional tests or subtests because all of Student’s other subtest scores were at least average. She also opined that Student’s test results were consistent with Student’s classroom performance. Ms. T. was Student’s special education teacher during the current and previous school years. I found Ms. T.’s testimony to be persuasive. Further, Ms. M. did not testify that this particular scoring error would have caused Ms. M. to conduct additional testing. I therefore find that this particular scoring error did not render Ms. T.’s evaluation invalid or unreliable.
At the conclusion of her testimony, Ms. M. was asked whether, in her opinion, all of these errors resulted in the evaluation not being appropriate. Ms. M. testified that in light of the errors in Ms. T.’s testing, she was “in the middle” regarding the question of whether the quality of Ms. T.’s testing was appropriate. Thus, Parents’ own expert declined to conclude that the errors were such as to render the evaluation inappropriate. (Testimony of M.)
For these reasons, I find that the errors contained within the education evaluation did not render the evaluation inappropriate.
Second, Parents sought to attack the comprehensiveness of the education evaluation. Parents’ principal evidence seeking to demonstrate lack of comprehensiveness of the evaluation was the testimony of their expert, Ms. M..
When asked whether she believed that the testing was comprehensive, Ms. M. testified that, in her opinion, the testing was comprehensive in all respects except for the written language area. Ms. M. believed that an additional test should have been administered in this area to ensure that the correct writing program is being used by XYZ for Student. She indicated that she would like to assess Student’s writing ability when there is a picture prompt versus a learned prompt. Ms. M. referenced the Writing Process Test through Riverside, which uses word prompts and therefore is different than the TOWL-3 Test which uses a picture prompt.(Testimony of M.)6
There was no testimony indicating that the tests Ms. T. chose were inappropriate. There was no testimony that these tests did not provide a range of testing. The only aspect in dispute is whether Ms. T. should have administered a third test in the area of writing.
Ms. T. testified that, in her opinion, her testing of Student’s writing was sufficiently comprehensive. She explained that it is her usual practice (and appropriate evaluation practice in general) to conduct two or more tests in each of Student’s areas of need. In this case, Ms. T. conducted two tests in the area of writing. Ms. T. also had the advantage of being able to consider Student’s written output from the classroom which she found to be consistent with her test results. Ms. T. testified persuasively that because of the consistency between the results of the two standardized writing tests, as well as the consistency between the test results and Student’s classroom output, additional testing would likely have provided information that would only have been repetitive of information already gleaned from her testing, and therefore would have served no useful purpose. (Testimony of T.)
I am persuaded that Ms. T.’s decision to administer two, rather than three, writing tests reflected a credible, expert, and informed opinion as to what was necessary for her evaluation to be comprehensive. In order to be determined comprehensive, Ms. T.’s evaluation need not be perfect and certainly need not include every possible test. I find that in this regard, the evaluation met the legal standard of being comprehensive.7
Third, Parents take the position that there is an irreconcilable difference between Student’s functional performance in the classroom observation (that was part of Ms. T.’s educational evaluation) and Ms. T.’s educational testing, thus calling into question Ms. T.’s evaluation. However, the purpose of the classroom observation was not to determine Student’s writing or spelling abilities. Rather, as was made clear during Ms. T.’s testimony, during an observation she is looking at what Student is doing in the classroom, rather than considering his actual work product. Moreover, during the observation, Student was engaged in a planning exercise in anticipation of writing a story, and this resulted in brainstorming notes rather than a more traditional written output such as a story. I am persuaded that any differences between the formal testing and Student’s performance during the classroom observation are not relevant to the ultimate question of the appropriateness and comprehensiveness of Ms. T.’s evaluation.
Fourth, Parents point out that subsequent testing (by Lindamood Bell) has shown a significant drop in Student’s writing test scores, which Parents argue calls into question the objectivity of XYZ’s testing. Parents produced scores from subsequent testing which showed that some of Student’s subtest scores decreased from the scores reported in Ms. T.’s testing. Student underwent this additional testing at the Lindamood Bell Center in October 2009. It is not possible to determine whether these reported scores were valid and reliable, or why the test scores were lower for Student, or what may be the implications of the lower test scores. In short, it is not possible to draw any inferences from the Lindamood Bell testing regarding the comprehensiveness or appropriateness of Ms. T.’s evaluation.
Finally, Parents argued that Ms. T.’s evaluation report did not include sufficient analysis and recommendations. Ms. T. provided persuasive testimony that her analysis was sufficient and that recommendations for services may be appropriately deferred to (and considered as part of) the IEP Team process. The testimony of Parents’ expert (Ms. M.) supported Ms. T. in this regard.
In sum, XYZ, through a preponderance of the evidence, met its burden to show that its educational evaluation was comprehensive and appropriate.
The educational evaluation conducted by the XYZ Public Schools was comprehensive and appropriate. Accordingly, Parents are not entitled to a publicly funded, independent educational evaluation.
By the Hearing Officer
Dated: January 8, 20108
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
THE BUREAU’S DECISION, INCLUDING RIGHTS OF APPEAL
Effect of the Decision
20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must obtain such stay from the court having jurisdiction over the party’s appeal.
Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).
A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).
Rights of Appeal
Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).
An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).
In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
Record of the Hearing
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.
603 CMR 28.04(5)(d). See also 34 CFR 300.502(b)(1).
Cf. Judith S. v. Board of Educ. of Community Unit School Dist. No. 200 , 1998 WL 409416 (N.D.Ill.,1998) (pursuant to standards within state law, court found that the school district’s evaluation was “sufficient to permit the development of an appropriate program of individualized education” for the student).
Schaffer v. Weast , 546 U.S. 49, 62 (2005).
However, because the Algebra and Geometry subtests are only administered to grades 5 and above, they were not given to Student.
Parents provided the testimony of an additional expert witness (Ms. Dorothy S.) in support of their position that Ms. T.’s evaluation was neither comprehensive nor appropriate. Ms. S., who is Parents and Student’s advocate, was also present during Ms. T.’s observation of Student in his regular education writing class on March 20, 2009. Ms. S. testified that she has been Student’s advocate since his first grade and has known Student and his family since Student was an infant. Ms. S. also has significant educational experience and expertise. She has conducted testing for the Winchester Public Schools for several years. She holds a master’s degree in special education. However, she appeared to be testifying less as an objective expert and more as an advocate with substantial educational expertise. This diminished the reliability and usefulness of her expert testimony. Accordingly, I consider Ms. S.’s testimony to have limited probative value and I do not rely upon it. (Exhibit P-8; testimony of S.)
Ms. M. further explained that Student’s writing product in the classroom was not the result of a picture prompt but his writing product produced in the TOWL-3 was the result of a picture prompt. Accordingly, Ms. M. testified that she would want to conduct a test that is “in between” a picture prompt and verbal prompt—perhaps a test such as the MCAS that utilizes an explicit writing prompt. She stated that she might pick another test that would show her in an ideal situation (not in the classroom environment) whether Student is able to use the structure of brainstorming, preparing a rough draft, and editing. (Testimony of M.)
However, I note that although XYZ is under no obligation to do so, it is recommended that XYZ consider following Ms. M.’s recommendations and conduct additional testing in this area for the following reasons. Parents have substantial concerns regarding Student’s writing abilities, Ms. M.’s recommended testing might possibly assist XYZ to gain more information regarding what special education or related services should be provided in this area, and the additional testing may help assure Parents that XYZ has sufficient information to understand Student’s writing deficits and determine his appropriate writing program. For these purposes, it may be useful for Ms. T. to consult with Ms. M. so that, together, they may identify one or more additional writing tests agreeable to both experts.
I acknowledge, with appreciation, the considerable assistance of BSEA Hearing Officer Ann Scannell in the preparation of this Decision.