Special Education Appeals BSEA #00-3591
COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Dedham Public Schools BSEA # 00-3591
DECISION
This decision is issued pursuant to 20 USC 1400 et seq. (Individuals with Disabilities Education Act), 29 USC 794 (Section 504 of the Rehabilitation Act), M.G.L. chs. 30A (state administrative procedure act) and 71B (state special education law), and the regulations promulgated under said statutes.
A hearing was held on December 19 and 20, 2000 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:
Student’s Mother
Student’s Father
Robert Augustine Advocate for Parents and Student
Mary Gallant Attorney for Dedham Schools
Gretchen Timmel Psychologist, Mass. General Hospital
Nancy Sullivan Director of Special Education, Dedham Public Schools
Lee Saltzberg School Psychologist, Dedham Public Schools
Patricia Cronin Special Education Coordinator, Dedham Public Schools
Carol Dixon Speech/Language Pathologist, Dedham Public Schools
Sharon Bernstein Speech/Language Pathologist, Dedham Public Schools
John Hickey Teacher, Dedham Public Schools
Cynthia Kelly Reading Specialist, Dedham Public Schools
Nancy Clement Teacher, Dedham Public Schools
Eileen Gillis Teacher, Dedham Public Schools
Maryellen Coughlin Court Reporter
The official record of the hearing consists of documents submitted by the Parents and marked as Exhibits 1 through 12 (hereafter, Exhibit P-1, etc.); documents submitted by the Dedham Public Schools (DPS) and marked as Exhibits 1 through 43 (hereafter, Exhibit S-1, etc.); and approximately eleven hours of recorded oral testimony and argument. The hearing was transcribed by Court Reporter Maryellen Coughlin, and her written transcript constitutes the official record of these proceedings. Written closing arguments were due initially on January 26, 2001 but by agreement of the parties, the date was extended until February 26, 2001, and the record closed on that date.
ISSUES PRESENTED
Issue 1: Is the IEP for 9/1/00 to 6/30/01 (Exhibits P-1, S-10 ) proposed for Student by DPS reasonably calculated to assure his maximum possible educational development in the least restrictive environment consistent with that goal? And, if not, what modifications should be made so that the IEP meets said standard?
Issue 2: Has DPS failed to meet its obligations to Student, with the result that Student is entitled to compensatory services? And, if so, what compensatory education services is Student entitled to receive?
PROFILE AND HISTORY
Student is an eleven-year-old resident of Dedham, MA where he attends 6th grade in the Dedham Public Schools Middle School. He is described as hard-working, a willing participant in class, and sensitive. His academic strengths include proficiency in math and problem-solving, while his weaknesses are in the areas of phonics skills, with difficulty blending sounds together and breaking words down into component parts. He has demonstrated speech delay (articulation), and has shown evidence of dyslexia and attention deficit. His intelligence is in the normal range. Testimony of Mother, Bernstein, Dixon; Exhibits S-10, S-19, P-1, P-7, P-8, P-10.
During the 2nd grade and continuing through the 4th grade, Student received speech services (for articulation) from the Dedham Public Schools. At the end of 4th grade, these services were discontinued, and in 5th grade, Student began receiving 90 minutes per week of reading assistance through a Project Read program. Student’s IEP was amended in May 2000 to increase services for 6th grade as follows: inclusion services of forty-five minutes each day, small group special education instruction in reading for forty-five minutes each day, Resource Room for forty-five minutes once (or more as needed) in a six-day cycle, and consultation for 15 minutes once in a six-day cycle. Testimony of Mother, Gillis; Exhibits S-10, S-18, S-21, S-23; P-1, P-2, P-4, P-5.
STATEMENT OF THE EVIDENCE
Student’s mother (hereafter, Mother) testified that she has been a substitute teacher for Dedham Public Schools, working in the library and in 1st, 2nd, 3rd, and 4th grade classes. She also noted that she has volunteered in her son’s classes and in the library at least once a week for the last 8 years. She further explained that she has been a nurse (LPN) for 8 years.
Mother testified that in 1st grade, her son was struggling with reading. She asked the school for testing in this area. She explained that Cindy Kelly, the Public Schools’ reading specialist, did a reading test during the 1st grade and explained to Mother that nothing was wrong and that her son simply needed to read more. Mother further noted that in 2nd grade, the problems continued and again Cindy Kelly, after testing her son, told her that she found no difficulties, although Mother found that her son continued to be frustrated regarding reading.
Mother testified that in 3rd grade the reading specialist, Cindy Kelly, again tested her son and found no problems. Mother noted that no one advised her of her rights regarding special education although she agreed that for each team meeting, she has received a parents rights brochure.
Mother testified that in 4th grade her son “hit a wall,” not being able to do his reading and spelling work, and as a result, she confronted her son’s teacher who said that her son’s difficulties were that he was not bright. Mother explained that in April of 4th grade, she asked the 4th grade teacher to test her son. Mother explained that although the teacher initially refused and referred her to the special education teacher, the principal at the elementary school agreed to testing.
Mother testified that the testing of her son began in April of 4th grade and was completed in October of 5th grade. She explained that by mutual agreement between her and staff at the Dedham Public Schools, the testing of her son was suspended in late May or June of 4th grade and it was agreed that the testing would start up again at the end of September or beginning of October of 5th grade.
Mother testified that as a result of the testing and a meeting of the Team in October of 5th grade, the Dedham Public Schools proposed 1 ½ hours per week of reading assistance through a Project Read program. Mother also noted that as of December 1999 (5th grade) the science teacher did not know that her son was on an IEP. Mother further explained that in 5th grade, her son struggled with reading, was unable to read the texts being used, especially in social studies, science, and a chapter book used in language arts. Mother further noted that in 5th grade, she had an independent evaluation done at Mass. General Hospital (Exhibits P-6, P-8) in December which recommended intense remediation. Mother also noted that in December 1999 she met with Dr. Lai of Mass. General Hospital who was involved in performing the independent evaluations, and Dr. Lai explained to her that her son needed a comprehensive summer program to make up ground, and that he also needed small group instruction. Mother noted that Dr. Lai diagnosed her son with attention deficit disorder and prescribed medication of Adderall. Mother testified that in the summer of 1999, she enrolled her son in a summer reading program which included the Wilson reading program and incurred costs of three hundred dollars for this program.
Mother testified that in January 2000 at a Team meeting, she requested of Nancy Sullivan (the special education director for the Dedham Public Schools) that her son be provided a summer program. Mother explained that at the end of June 2000, the Dedham Public Schools offered a Wilson reading program for the summer but Mother decided not to accept this program because she was concerned that her son’s self-esteem was low and she felt that he should be in a program with other children who are dyslexic. She explained that she, therefore, privately placed her son in the Carol summer reading program for the summer of 2000.
Mother testified that in 5th grade her son met with the school adjustment counselor (Ms. Irons) perhaps twice on an as needed basis, but she concluded that her son felt more comfortable talking to her (Mother) and as a result, her son did not continue to see the school adjustment counselor.
Mother testified that in 6th grade, her son was very frustrated because he could not do some of the assignments and as a result she needed to provide him with substantial assistance regarding his homework. She noted that her son complained that Ms. Gillis (the special education teacher) gave her son help and pointed to his mistakes during tests or quizzes, and that this occurred on several occasions.
Mother testified that with certain modifications, the educational program at the Dedham Public Schools would be satisfactory. She noted that the following modification should be made to her son’s program:
1. The reading program should be a smaller size so that her son can move at his own speed (the reading teacher has advised her that the other students in the class are at a lower level then Student).
2. The special education teacher should not help her son by giving correct answers during a test or quiz.
3. The reading teacher is a language therapist and is combining this therapy with reading in the reading program; Mother believes that speech language therapy (by the speech language therapist) should be provided for one hour per week, separately from the reading group.
4. During four periods per week, her son should be able to get extra help during the school day rather then at the end of the day so that he does not have to stay after school.
5. If the reading group cannot be made smaller, then her son should be provided with an individual tutor.
Mother testified that her son made progress at the Carol School. She noted that during this current school year (6th grade), he is not moving as fast as he is able to. She further explained that although her son has been on the honor roll this year, she thinks that the teacher’s study guides for her son have helped and as a result she believes that her son’s grades are inflated, although she agrees that the study guides are a positive, useful assistance for her son.
Gretchen Timmel testified that she is certified as a psychologist, is a licensed school psychologist, has worked as a school psychologist for five years, and has a masters degree in school psychology. She also noted that she is a certified elementary school teacher and has eight years experience in this area (including kindergarten through 8th grade in public schools). She further testified that she is employed at the Massachusetts General Hospital working at two units (the learning disorder unit and the psychological assessment center) where she has been employed eight full-time years and fifteen part-time years.
Ms. Timmel testified that she met Student on the day of his initial evaluation with Pam Hopkins on November 2, 1999. Ms. Timmel explained that she has never tested Student but is representing Dr. Lai’s recommendations and Ms. Hopkins’ findings, and noted that she attended the January 2000 Team meeting for Student. On the bases of the recommendations and findings of Dr. Lai and Ms. Hopkins, Ms. Timmel testified that Student needs specialized services, particularly with word attack (decoding) skills. She explained that Project Read qualifies as such a service but that the Dedham special education teacher working with Student last year (Mr. Hickey) had explained to her that he had not been focusing on decoding skills in the special education services being provided to Student. Ms. Timmel testified that at the Team meeting, she emphasized to Mr. Hickey and to the Dedham Public Schools the need for them to work on decoding skills for Student and was told by Mr. Hickey he would do so.
Ms. Timmel testified that on June 1, 2000 she observed the presentation of the language-based instruction in the 6th grade of the Dedham Public Schools and observed that it was an appropriate ruled-based program. She further noted that she observed an inclusion class in Science for 6th grade and concluded that it would be a challenge for Student to participate but that he nevertheless would be able to receive instruction appropriately in this class. However, Ms. Timmel explained she believes that the special education teacher was divided between classes and that Student needs additional curriculum support beyond what the special education teacher has been providing. She noted, however, that this opinion was based solely on statements made by Ms. Gillis (the special education teacher) at the pre-hearing conference in this case and on the basis of the evaluations of the other clinicians at Mass. General Hospital as well as her own general experience. Ms. Timmel explained that she was not able to testify as to what Ms. Gillis is currently doing with respect to supporting Student within his inclusion classes in 6th grade.
Ms. Timmel testified further that prompting would not be sufficient for Student and that he would need services from a special education teacher trained to instruct and assist Student to learn coping strategies and assist him with homework. Ms. Timmel explained, however, that with these modifications, the educational services provided by the Dedham Public Schools would be sufficient to meet Student’s needs.
Ms. Timmel also testified that in September 2000, she spoke with Ms. Bernstein (Student’s reading program teacher this year, 6th grade) to determine if any changes had been made from the program that Ms. Timmel had observed last year. Ms. Timmel explained that she believes that, on the basis of the conversation with Ms. Bernstein, the instruction in Ms. Bernstein’s class this year would be appropriate for Student.
Ms. Timmel testified that the current number of eight students in the reading program is high for such a group. Based on her own experience and Dr. Lai’s recommendations, she believes that a group of four students with similar-needs would work effectively with one teacher for Student because the teacher would be better able to know the four students, as compared to the current group of eight students with two teachers. Ms. Timmel also explained that if one teacher is leading the group and another is assisting the teacher to lead the group, it may present difficulties. She also explained, in a response to a hypothetical question, that if the cognitive levels of the students in the group were extremely varied, it might be difficult for the focus of the group to adequately address the Student’s needs.
Ms. Timmel further testified that, in her opinion, there is a need for separate services for reading and speech language services and that therefore there should be a separate additional hour of speech language services that could be provided either individually or in a small group to Student. She explained that she came to these conclusions based on Dr. Lai’s diagnosis of a language disorder, in combination with the fact that Student appears to be struggling at school in the 6th grade. However, on reviewing Exhibit P-6 and the recommendations therein from the speech language evaluation at Mass. General Hospital, Ms. Timmel testified that her opinion regarding a separate hour of speech language services was based on the assumption that the MGH recommendation called for an additional hour of services (that is, an hour of services over and above what was already being provided by Dedham Public Schools).
Ms. Timmel prepared a written observation report, dated June 1, 2000, in which she concluded that the reading class (at that time lead by Ms. Kanellos) appeared to meet the criteria for a “rule based” reading program and Ms. Kanellos appeared to have a good command of the material and strategies to help each child. She also noted that the structure of a “rule based” program was in tact and the number of students presented for the lesson was appropriate. She further noted that the setting appears to meet Student’s needs. Exhibit P-11.
This report further describes Ms. Timmel’s impression from the observations of the 6th grade science class in an inclusion setting, with Ms. Timmel concluding that the science class was “very on target” although the text book reading level my pose a “problem.” Finally, Ms. Timmel noted in her report that the “exact nature of how to utilize Ms. Gillis’ services needs to be established as well.” Exhibit P-11.
Carol Dixon testified that she has been a speech language pathologist at Dedham Public Schools since 1984. She explained that she has responsibilities for identifying, evaluating and treating students regarding speech language issues. She testified that she has a masters degree in communication disorders and is certified and licensed as a speech language pathologist.
Ms. Dixon testified that she is familiar with Student and has worked with him from kindergarten through 4th grade. Ms. Dixon noted that in kindergarten, she provided Student with thirty minutes, two times a week of speech language services, primarily for propose of improving Student’s articulation. She noted that although at first Student was very difficult to understand, throughout the year his progress was excellent regarding articulation and language development. Ms. Dixon testified that the special education teacher worked informally with Student in kindergarten, and neither she nor the regular education teacher believed that Student should be referred for an evaluation regarding special needs.
Ms. Dixon testified that she consulted with Student’s 1st grade regular education teacher who believed that Student was making progress in 1st grade and should not be referred to special education for further evaluation. Ms. Dixon also noted that Student was making excellent progress regarding language issues during 1st grade.
Ms. Dixon testified that she continued to provide speech language services to Student in the 2nd grade. She noted that Student’s regular education teacher for 2nd grade believed that Student was working at grade level and was making effective progress, and therefore the teacher did not suggest referral to special education for further evaluation.
Ms. Dixon testified that during Student’s 3rd grade, she consulted weekly with Student’s regular education teacher who believed it was not necessary to refer Student to special education and that Student was making effective progress in 3rd grade. Ms. Dixon noted that in 3rd grade, speech language services were reduced to thirty minutes once a week and that she continued to provide these services to him.
Ms. Dixon testified that in 4th grade, Student’s regular education teacher expressed concerns during the year and made a decision to refer Student for testing in the spring of his 4th grade year. Ms. Dixon testified that the special education teacher for 4th grade started the testing at that time but discontinued the testing because she, as well as Ms. Dixon and Mother, together made a decision that is was not an appropriate time to continue testing Student. She explained that the testing was therefore suspended until early in the 5th grade year. Ms. Dixon testified that during the 4th grade she continued to provide Student with speech language services, and Student continued to make progress in this area.
Ms. Dixon testified that in March 1999, a recommendation was made by the Dedham Public Schools to end speech language services at the end of the 4th grade year because Student was no longer in need of speech language services for articulation. She further explained that the team met in October 1999 to review the Dedham Public Schools’ evaluation by Mr. Hickey regarding Student’s needs for additional special education services. She explained that Mr. Hickey’s evaluation showed some weaknesses in auditory memory but with good compensatory skills, difficulties understanding complex language, and weaknesses (although not significant) with respect to reading, and as a result, at the October 1999 Team meeting, additional special education services were recommended for Student.
Nancy Clement testified that she has been employed by the Dedham Public Schools as the regular education 5th grade teacher for the past twenty-eight years. She noted that she has a masters of education degree, received in 1981, and is certified as an elementary school teacher.
Ms. Clement testified that Student was one of her 5th grade students for the 1999-2000 school year with respect to math, social studies and language arts. She explained that she was aware that Student was on an IEP for speech language services.
Ms. Clement testified that in the fall of 1999 Student was motivated to be a full participant in her class. Ms. Clement noted that Student had some difficulty with math but was given Title I support; he benefited from that assistance and was able to understand the concepts, participate, and make progress. She further noted that in social studies, with support and accommodations, Student was a full participant. She explained that some of the accommodations included chunking material and using visuals and graphic organizers. She explained that Student, as a result, made progress and enjoyed the subject although Ms. Clement noted that the text may have been somewhat overwhelming for Student. Ms. Clement further noted that in language arts, she also used modifications by bringing in multi-sensory teaching materials and, as a result, Student made noticeable progress.
Ms. Clement testified that at the October 1999 Team meeting which she attended, Mr. Hickey’s testing of Student was reviewed, indicating concerns regarding Student’s written out-put and reading comprehension, and as a result the Team decided to recommend thirty minutes, three times per week of special education services in the learning center. Ms. Clement noted that these IEP services were accepted by the Parent, pending reassessment after a requested independent evaluation.
Ms. Clement testified that Student continued to make progress through the winter trimester of 1999-2000 school year but in the spring of 5th grade (although he was making steady progress) it was not at the rate Student had been progressing during the first part of the year. Ms. Clement noted that this is not unusual for students in her class. She concluded that, overall, Student made progress in 5th grade although she noted that reading fluency was an area where Student could use additional help.
John Hickey testified that he is a special education teacher in the elementary school for the Dedham Public Schools and has been for the past six year. He noted that he holds a masters degree in education. He further explained that he has a total of 23 years working in the area of special education and is certified to teach special education.
Mr. Hickey testified that during Student’s 5th grade year from October to June he was Student’s special education teacher and until February of 2000 was providing academic support to Student in the learning center for thirty minutes three times each week. He explained, however, that in February 2000, the group shifted from four students to three students and began focusing exclusively on Project Read. He noted that this was in response to the recommendations from the independent evaluations done at Mass. General Hospital. Mr. Hickey testified that, in his opinion, Student benefited from and made progress as a result of the assistance he had provided Student although Mr. Hickey further explained that Student’s progress was “slow but steady.”
Mr. Hickey explained that he recalls missing three or four sessions with Student although he recalls making up approximately fifty percent of these missed sessions.
Cynthia Kelly testified that since 1991, she has been employed by the Dedham Public Schools as a consulting teacher for reading, that she has a masters of education degree, that she is certified in elementary education and that she has a reading certificate.
Ms. Kelly testified that she first met Student in 1st grade. At the beginning of the 1st grade year, she did a running records review of all children, including Student, as well as at the end of the year in June. She explained that based on the 1st grade running records review, Student demonstrated that he was making progress and was on grade level.
Ms. Kelly testified that in 2nd grade, Parents asked her to test Student, she did so in March 1997, and the test indicated that Student was just at grade level. Ms. Kelly indicated that she also tested Student at the end of the academic year in June 1997, and the test indicated that Student was at grade level and making progress.
Ms. Kelly testified that during 3rd grade, she used a Spaulding reading program in Student’s classroom for forty-five minutes, three mornings per week from November through June; and during 4th, she used the Spaulding reading program in Student’s classroom for forty-five minutes twice a week for an eight-week period.
Ms. Kelly reviewed Exhibit S-15 and testified that the word attack scores for Student in the 5th grade were in the average range.
Sharon Bernstein testified that she is a licensed, certified speech language pathologist and has worked in that capacity for the past eleven years at the Dedham Public Schools. She also noted that she has a masters degree in speech language and has been a speech language pathologist since 1983. She explained that she is licensed as a teacher and as a speech language pathologist, and is certified as a speech language pathologist. She explained that she has been responsible for evaluations and direct services to children, including co-teaching responsibilities with respect to reading, for the past five years.
Ms. Bernstein testified that Student is in a small group reading class which she co-teaches with a certified special education teacher (Ms. Nutter). Ms. Bernstein explained that she has Student in this small reading group for forty-five minutes every day. She noted that the reading group utilizes the Wisnia Kapp reading program and also materials from the Wilson reading program in order to provide phonic, rule-based instruction for the children in this reading group. Ms. Bernstein explained that the class includes both reading and writing instruction with at least twenty-five percent of the time devoted to de-coding skills, fifty percent on reading comprehension and fifteen percent on writing skills.
Ms. Bernstein testified that there are eight students in the reading class, all of whom have similar reading and written language abilities, with the result that, in her opinion, there is a homogenous grouping of students. She noted that, in particular, all children have the same de-coding abilities and can read 5th grade text with relative fluency although their comprehension skills vary. She noted that Student is near the top of the class in all areas of reading and writing.
Ms. Bernstein testified that she believes it is beneficial to have two teachers in an eight person group rather than divide the group into two groups of four students and one teacher each. She noted, for example, that when she is leading a discussion or making a presentation to the group, the other teacher can assist by presenting visually and by checking on the attention of the students. Ms. Bernstein also explained that with two teachers they are able to work with children individually as well as in small groups. She also noted that the second teacher is not used as an assistant to her but rather as an equal teacher. She further explained that with a class size of eight students, there are opportunities for the students to learn from each other.
Ms. Bernstein testified that Student received a grade of A- in the first quarter of the reading group; the grade reflects journal writing, class performance and quizzes. She added that she believes that Student is making effective progress in the areas addressed in the reading class; and although Student continues to need instruction in reading and written language, in her opinion, Student is now (or will soon be) ready to end special education reading group and would benefit from participating in the regular 6th grade reading group. She explained that the regular education group would provide less emphasis on decoding and would cover more material. She noted that Student is reading books with appropriate comprehension at the 6th grade level.
Ms. Bernstein testified that she reviewed the speech language evaluation done at Mass. General Hospital, dated February 22, 2000. She is of the opinion that Student is currently receiving the services recommended in his speech language evaluation. She further explained that, in her opinion, Student does not need speech language services because he is performing at age level and because the Mass. General Hospital testing scores indicate that there is no need for specialized services in this area.
Ms. Bernstein testified that she has recently spoken with all of Student’s teachers except for the Math teacher, and all of the teachers with whom she spoke believe that Student is making effective progress and are very satisfied with his performance.
Eileen Gillis testified that she has been a special education teacher for the past two years at the Dedham Middle School and has a masters degree in special education and elementary education.
Ms. Gillis testified that she works with Student in the inclusion setting with respect to math, science, English and social studies, and she also is Student’s Resource Room teacher. She explained that, in a typical day, she is available for approximately 25 minutes at the beginning of the day for any student who would like individual, additional assistance and then throughout the morning and early afternoon she circulates to the inclusion classes where her students are located, getting to all four subject areas for fifteen to forty-five minutes each day, depending on the needs of the students. She noted that in the afternoon she meets with all the regular education teachers to see how her special needs students are doing. In block 8 of the day in the afternoon, she is responsible for the Resource Room in which she reviews information, helps students with homework and helps students to develop study strategies. She explained that Student’s IEP calls for one period in the Resource Room and more as needed, and typically Student is in the Resource Room twice a week. She further noted that he can come as often as every day if needed. Ms. Gillis also testified that she is available after school for approximately 2 hours each day if children need any additional, individual assistance from her.
Ms. Gillis testified that in the Resource Room, she teaches Students strategies for homework assignments, makes sure they understand what resources are available to them with respect to homework assignments, and goes through strategies for taking tests and addresses substantive materials so that her Resource Room becomes an extension of what happens in class.
Ms. Gillis testified that in the inclusion classes, she may rely on an aide, for example, in math or may co-teach, for example, in science or social studies to provide multiple sensory activities or cues, and to help instruct the children in different modes that may be more accessible to them than what is being provided by the regular education teacher. Ms. Gillis also explained that she gave Student a written interview to determine how well he is doing in 6th grade and how well he had made the transition from elementary school, and the results of the written interview indicate that Student appears to be understanding the course work, is generally able to do homework, except that sometimes he has difficulty with science homework. She further noted that she gives Student assistance with respect to science homework; she also noted that most students also struggle with Science homework.
Ms. Gillis testified that Student’s grades are not inflated and he made the honor roll for the first semester, which means he received all A’s and B’s in his classes. She further explained that she provides assistance occasionally to Student and other special needs students while they are taking a test or quiz but she does not provide correct answers for a student. She further explained, for example, that in one quiz, the question was to find a definition for the word “fanatic” and choice C was the word enthusiastic. Student did not know what the work enthusiastic meant and Ms. Gillis explained the meaning of the word not only to Student but also to the other members of the class. Similarly, she noted that she sometimes gives assistance during a quiz to make sure that students are reading the questions correctly and she may make suggestions necessary in order to allow a student to self-correct. She further testified that this kind of clarification or assistance during the quiz is consistence with Student’s IEP (Exhibit S-10), objective 2.14 at page 4.
Ms. Gillis testified that she has talked to five of Student’s subject matter teachers who reported to her that in English Student is performing above average, in math Student is at the top of his class, in social studies he is performing above average and in science he is doing an excellent job. She further noted that she believes Student is making effective progress in each of the four subject areas where she provides inclusion assistance and that he is making effective progress in the Resource Room. She explained that she does not believe Student needs speech language services to make effective progress nor does he need additional tutoring to make effective progress. Ms. Gillis testified that books on tape were available by October 1, 2000 for the classes for which she provides inclusion support although the books on tape could not be taken home. She also noted that beginning in October 2000, she has used volunteers to put materials on tape so that they can be used by Student. Exhibit S-2.
Lee Saltzberg testified that he has been the school psychologist at the Dedham Public Schools since 1989 and that he has a masters degree in psychology and a doctorate in clinical psychology.
He explained in some detail the written materials regarding Student and his discussions with staff regarding Student, as well as his informal observation of Student in school. He testified that there is no indication from any of this information that Student has adjustment problems in the 6th grade.
Patricia Cronin testified that she has been employed as the special education coordinator for grades six through twelve at the Dedham Public Schools (this is her third year in this position), and beginning in 1985, she was a special education teacher at the Dedham Middle School for twelve years. She noted that she has a masters degree in special education.
Ms. Cronin testified that she attended Student’s IEP meeting in May 2000 and tested him in June of 2000.
Ms. Cronin reviewed the results of her evaluation (Exhibit S-11) as well as the results of the Mass. General Hospital evaluation using similar instruments (Exhibit P-6). Ms. Cronin testified that these testing results, in particular the result from the Woodcock Johnson testing, show that Student has the ability to comprehend by compensating to make up for deficits in his word attack skills. She further noted that particularly Student’s broad reading scores indicate that he is making effective progress. She noted that his math scores, in particular, the broad math scores of 6.2 indicate that he is above grade level. She also noted that the test indicated that Student has the ability to express himself in written language and is making progress in that area as well.
Ms. Cronin testified that the Resource Room is available to Student each day of the week if needed. She also explained that if Student continues to make progress in the reading group, in her opinion, he should go on to the regular education reading group which would cover more material with less emphasis on decoding, and this would be the most helpful and most appropriate group for Student.
Ms. Cronin testified that foreign language during 6th grade is an enrichment program focused on exposing children to culture and does not take the place of or limit Student’s participation in any other courses during 6th grade. She noted, however, that in 7th grade, there would be a choice of Student taking foreign language or continuing to take reading, and a determination would be made at the end of this academic year as to which choice would be most appropriate for Student.
Ms. Cronin testified that by the end of September 2000, the two chapter books which were being used in Student’s English class were made available to Parents as books on tape. She further explained that the text books were not available immediately for use at home because the text books that the school has on tape cannot be taken out of the school and individual books on tape require that a parent fill out an individual application so that they can be ordered separately. She explained that when Mother requested these books on tape for home use, she was provided an application which was filled out and submitted and led to obtaining the books on tape to be used by Student in his home.
Nancy Sullivan testified that she has been the Director of Special Education at the Dedham Public Schools for the past seven years and has a masters degree in administration.
Ms. Sullivan testified that she is familiar with Student through IEP meetings and review of records. She noted that, in her opinion, based on Student’s progress reports from elementary school, there is no indication that in any area Student needs improvement. Exhibit S-5.
Ms. Sullivan noted that at the IEP meeting for Student in May 2000, there was discussion of whether or not Student was entitled to a special education summer program; she concluded that Student did not meet the substantial regression standard necessary for Student to be entitled to a summer program. Nevertheless, she explained, Dedham Public Schools offered Student an opportunity to participate in its own summer program which is a Wilson training program, and this is analogous to the program that Student attended during the summer of 1999. Ms. Sullivan explained that this summer program was offered to Student shortly after a mediation session, which occurred in late May 2000. Ms. Sullivan noted that this summer program would have given Student more practice in decoding and strict rules for reading, which is what Parents were looking for but, in her opinion, this intense program addressed some skill areas in which Student already had proficiency.
Ms. Sullivan testified that she had recently spoken with Student’s math teacher, social studies teacher and English teacher. She noted that Student’s math teacher believes that Student is at the top of his class, the social studies teacher believes that Student is doing excellent work, and the English teacher concluded that Student has very good skills and is in the top part of the class.
Ms. Sullivan testified that any written request for further evaluation regarding special education needs would be directed to her and she has never received a written request for further evaluation for Student. Ms. Sullivan concluded that Student has been appropriately identified and evaluated for purposes of special education throughout his time with the Dedham Public Schools.
A speech language evaluation by Elizabeth Delnickas, MA, CCC-SLP, on February 22, 2000, concluded that Student needed continued intensive written language remediation in order to strengthen his decoding, encoding, automaticy, reading comprehension and written formulations skills. She recommended individual remediation with a speech language therapist or written language specialist for at least forty-five minutes, once per week. Exhibit P-6.
A letter from Florence Lai, MD, to Nancy Sullivan, SPED Director of DPS, dated December 10, 1999, recommended a variety of interventions, including a remedial reading program of thirty to forty-five minutes, 4 to 5 times a week, in individualized or very small group (3 students and 1 reading specialist) instruction. Exhibit P-7.
FINDINGS AND CONCLUSIONS
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, MGL c. 71B. As such, he is entitled to a free, appropriate public education which is reasonably calculated to assure his maximum possible educational development in the least restrictive environment consistent with that goal. David D. v. Dartmouth School Committee, 775 F.2d 411, 423 (1st Cir. 1985). Neither his status nor his entitlement is in dispute.
A. Student’s Most Recently Proposed IEP.
The first issue presented is whether the programming and specialized services embodied in Student’s most recently proposed IEP (Exhibits P-1, S-10 ) are consistent with the above-referenced legal standard. Student’s IEP provides for inclusion services of forty-five minutes each day, small group special education instruction in reading for forty-five minutes each day, Resource Room for forty-five minutes once (or more as needed) in a six-day cycle, and consultation for 15 minutes once in a six-day cycle.
Student has been receiving services that are consistent with this IEP since the beginning of his current, 6th grade academic year. These services consist principally of two parts – the reading group for special education students and the inclusion support (including the Resource Room) to assist Student to participate in the mainstream classes.
The reading group is taught by two teachers -- Ms. Bernstein who is licensed to teach in public schools, is certified in the Wisnia-Kapp Reading program is also the speech/language therapist for the middle school, and Ms. Nutter who is a licensed, certified special education teacher. The reading group includes eight special needs children (including Student). For the following reasons, the evidence is persuasive that this reading group is meeting Student’s needs in a way that maximizes his educational development regarding his reading skills.
Student is in the most advanced of the special education reading groups, he is at or near the top of this group in terms of his reading abilities, and he received a grade of A minus for the first semester. One quarter of the class time is devoted to decoding, an area where Student may be somewhat weak. Student’s progress in this group is such that it is likely that he should soon move from this special education reading group to the regular education reading group that is offered to all regular education 6th graders at Dedham Public Schools (DPS). Student would benefit from this transition to the regular education reading group as a result of the increased amount of reading materials and the exposure to regular education students. Testimony of Bernstein, Cronin.
The testimony and observation report of Parents’ expert (Ms. Timmel) concluded that Student’s reading group would provide instruction appropriate for him. Ms. Timmel expressed concern about the size of the group and this issue is discussed separately below. Testimony of Timmel; Exhibit P-11.
Parents’ position is that the reading group is flawed for several reasons. First, they argue that the size of the group (8 students) is too large for Student to learn effectively. In support of this position, Parents rely on a December 10, 1999 letter from Dr. Florence Lai (of the Learning Disorders Unit at Mass. General Hospital) to Nancy Sullivan (DPS Director of Special Education) in which Dr. Lai states that Student needs to receive individualized remedial reading or be in a “very small group (three students and one reading specialist).” Exhibit P-7.
I give this letter minimal weight for three reasons: (1) Dr. Lai’s views were not subject to cross-examination by DPS counsel, (2) Dr. Lai’s letter did not provide an explanation or reasons for her recommendation regarding the size of the group, and (3) Dr. Lai’s letter does not address what she would consider the shortcomings, if any, regarding DPS’s reading program which is structured with a group of 8 students and 2 teachers. I further note that the DPS model would appear to be roughly comparable to Dr. Lai’s recommended configuration of 3 students and 1 teacher, the co-teaching used by DPS (using two teachers) may offer certain advantages compared to the one-teacher model that Dr. Lai recommended, and there are opportunities for cooperative learning with a class size of eight students that may not be available with a group of three students. Testimony of Bernstein. I also note that Dr. Lai’s letter is one year old, raising the question of its relevance to Student’s current situation.
Parents also rely on the testimony of their expert Ms. Timmel with respect to the size of the group. Ms. Timmel admitted that she was not familiar with the make-up of Student’s actual reading group (either in terms of the students or in terms of how it was taught) but nevertheless expressed concern that if there were a large disparity among the eight students in the class or if one of the two teachers acted in the capacity of assistant to the other teacher, Ms. Timmel would have concerns. The uncontradicted evidence indicated that there was not a wide gap in the abilities of the students, particularly in the area of decoding skills (which is the area where Student is most of need of assistance) and that the two teachers did not function as one being the assistant to the other but rather complement and support each other in the classroom. Testimony of Bernstein. Moreover, Ms. Timmel recommended a model of one teacher and four students, which (for reasons discussed above regarding Dr. Lai’s letter) may be comparable to or arguably not as effective as the model currently utilized by DPS. For these reasons, Ms. Timmel’s testimony provides, at most, only minimal support for Parents’ position.
Parents further express concern that one of the two reading teachers is actually a speech/language pathologist and that speech/language services should not be provided during the reading group but rather through a separate hour of speech/language services. However, this position is undercut by Parents’ own independent speech/language evaluation which concluded that Student needed remedial reading assistance but made no recommendation for speech/language therapy. Exhibit P-6. In addition, the testimony of the DPS speech/language pathologist (Ms. Bernstein) was persuasive that the testing done by Parents’ independent evaluation showed no significant weaknesses that would warrant speech/language services for Student and that Student was currently receiving the services recommended in that evaluation. Ms. Timmel testified in support of speech/language services, but her position was based in part on her reading of the recommendations contained in the independent speech/language evaluation; and, in the opinion of this Hearing Officer, her reliance on this evaluation is misplaced since the evaluation recommends no such services.
For these reasons, I am not persuaded by Parents’ concerns regarding the reading group and conclude that Student’s reading deficits are being appropriately addressed through this educational service.
The second area of concern for Parents is the adequacy of the inclusion support (including the Resource Room) to assist Student to participate in the mainstream classes.
The testimony of Ms. Gillis, who provides the support to Student for his inclusion classes, was persuasive that DPS offers an extensive amount of appropriate assistance to Student to help him understand and perform well within his inclusion classes, and that additional assistance has been and continues to be readily available to Student should he or his Parents request it. Through co-teaching and other assistance within the classroom (Ms. Gillis typically co-teaches social studies, visits the regular education classrooms and consults with the regular education teachers), as well as through the services she provides in the Resource Room, Ms. Gillis gives Student the kinds of assistance he needs. For example, she provides review of homework assignments, pre-teaching of materials, review of materials presented in class, practice study strategies, review to help prepare of tests and quizzes, assistance with completing homework and additional, individual as well as group assistance. Ms. Gillis uses multi-sensory presentations and other strategies such as use of graphic organizers and study guides to help Student learn the material. Testimony of Gillis. Mother agreed that the study guides have provided positive, useful assistance for her son. Testimony of Mother.
Student, by all reports from his teachers, is doing quite well in all of his classes in 6th grade, receiving only grades of A’s and B’s, placing him on the honor role for the first semester. Testimony of Sullivan, Gillis.
Parents’ expert (Ms. Timmel) expressed concern as to whether there was sufficient support from the special education teacher (Ms. Gillis), but Ms. Timmel admitted that the only information she had regarding Ms. Gillis was through Ms. Gillis’ statements at the Prehearing in this matter. Ms. Timmel further stated on cross-examination that she could not speak to what Ms. Gillis was actually providing by way of support and assistance to Student. Testimony of Timmel. This testimony, particularly in light of the credible and persuasive testimony of DPS staff, provides no basis for a determination that the inclusion support provided to Student is inadequate for purposes of maximizing his educational development.
Parents’ only additional evidence on this point focussed on what Mother believed to be inappropriate assistance by Ms. Gillis during two tests or quizzes – essentially, Mother expressed concern that Ms. Gillis was giving Student the correct answer during the test or quiz. Testimony of Mother.
Ms. Gillis, in her testimony, explained what she believed had occurred during each of the two incidents in question and how what she had done is consistent with Student’s currently proposed IEP and the last accepted IEP with respect to assistance regarding tests and quizzes. Testimony of Gillis; Exhibits S-10, S-13, S-14; P-1, P-2, P-4. I find Ms. Gillis’ testimony to be credible and to have provided sufficient explanation to persuade me that she did not actually provide Student with the correct answer although she clearly provided sufficient assistance to Student so that he was able to self-correct in one instance and was able to understand the meaning of a word necessary to answer in another instance. I do not find her assistance to Student to be inappropriate.
Finally, Mother requests that at a minimum, Student should be provided with an individual tutor to provide additional assistance to Student. Mother testified that Student has struggled with his homework this year, and that he has required significant amounts of assistance from her at home to complete his homework. Testimony of Mother.
Mother’s testimony regarding these issues was credible; I do not doubt the truth of her statements. However, there is nothing in her testimony or in other parts of the record that persuades me that Student needs additional or different services or assistance, as a result of his special education needs, in order to maximize his educational development.
Student’s grades this year (A’s and B’s) appear to reflect his academic achievements and progress. The testimony from the School staff indicates that Student has been successful this year in all aspects of his curriculum. The classwork, homework assignments, quizzes and tests provided Student in the inclusion classes are identical to those provided to his regular education peers. Testimony of Wilson, Gillis. Moreover, Ms. Gillis is generally available for twenty-five minutes before classes begin and for two hours after classes end each day for additional assistance. Also, although Student is generally attending two sessions of Resource Room each week, he may attend the Resource Room as often as every day if needed. Testimony of Gillis, Cronin. I further note that Student’s reading teacher (Ms. Bernstein) and Student’s other academic teachers are available after school each day for a half hour of additional assistance. Testimony of Bernstein, Sullivan.
For these reasons, I conclude that the programming and specialized services embodied in Student’s most recently proposed IEP (Exhibits P-1, S-10 ) are reasonably calculated to assure his maximum possible educational development in the least restrictive environment consistent with that goal.
B. Claim for Compensatory Education Services.
Parents seek to show that since 1st grade, Student has not received the special education evaluation and related services to which he is entitled. Parents’ claims are based principally on the alleged failure of DPS to adequately evaluate Student until the end of the 4th grade/beginning of the 5th grade.
For the reasons set forth in In Re: Fall River Public Schools, BSEA # 00-0771, 5 MSER 183 (December 23, 1999), I find that the most appropriate statute of limitations for Parents’ claims is the Massachusetts three-year statute of limitations applicable to civil rights actions (M.G.L. c. 260, s. 5B). Parents have argued no basis for adjusting the time of accrual of their claims for purposes of the statute of limitations.[1] I therefore look back three years from the date of filing of the Request for Hearing, which was April 28, 2000. Accordingly, I will consider Parents’ claims for compensatory education from the period April 28, 1997 forward to the present.
In April 1997, Student was in the 2nd grade at the DPS. At that time and continuing through the 4th grade, Student was receiving speech/language services for an articulation deficit. It is not disputed that Student made significant progress regarding articulation, and the Parents and DPS agreed to end the speech/language services at the end of the 4th grade since they were no longer necessary. Testimony of Mother, Dixon.
Mother testified that in the 2nd grade and then again in 3rd grade, she expressed concern to Student’s DPS teachers regarding Student’s reading abilities, but a “running reading” review by the DPS reading specialist during these grades revealed no deficiencies. Mother apparently never made a formal written request for any further evaluation nor otherwise pursued these issues with DPS staff. Testimony of Mother, Wilson. I find that via the review by the reading specialist, DPS staff responded appropriately to Mother’s concerns.
In the spring of Student’s 4th grade when more serious academic issues arose for Student, Mother made clear to DPS staff that she was requesting an evaluation (beyond the reading evaluations provided by Ms. Kelly) to determine whether her son should be receiving additional special education services. In response to this request, DPS did an evaluation of Student (completed in November 1999) and, as a result, 90 minutes per week of special education services in the Learning Center were provided for Student pursuant to an IEP covering the period 10/21/99-6/30/99. Exhibits P-4, S-18; testimony of Mother, Hickey.
Mother then requested an independent evaluation from the Mass. General Hospital which resulted in recommendations for additional services. In response to the recommendations in these evaluations, Student’s IEP was amended to provide an additional sixty minutes of inclusion support. Also, the 90 minutes in the learning center were re-oriented from academic support to work on reading skills. Testimony of Hickey, Mother; Exhibits P-2, S-14.
The testimony of DPS staff and the record of Student’s performance during these years, as described above (with two exceptions addressed below) were persuasive that Student was receiving the special education services described in his IEPs, that he was benefiting from these special education services, that the standardized test results were satisfactory, and that comments and grades of Student for these years were at least satisfactory and reflected progress. Testimony of Wilson, Saltzberg, Cronin, Kelly, Clement, Bernstein, Dixon, Gillis; Exhibits S-1, S-11, S-15, S-19, S-26. I conclude that Student was making satisfactory and effective progress each year, at grade level, commensurate with his regular education peers, and that his special education services were satisfactorily addressing his individual needs.
Parents, on the other hand, submitted no persuasive evidence that Student was entitled to additional services or evaluations and thereby should be entitled to compensatory education.
The only testimony offered in support of Parents’ position regarding compensatory education was that provided by Mother and her expert, Ms. Timmel. Clearly, Mother’s testimony reflects frustration both on her part as well as by her son during these years. Mother was also concerned about her son’s low self-esteem. I do not discount the seriousness or difficulty of these matters for both Student and his Mother. However, DPS staff responded appropriately to Parents’ requests for evaluations and services. Similarly, I find that Student did not evidence such difficulties that DPS staff should have requested, on their own initiative, additional evaluations or services. Finally, I note that the testimony of Ms. Timmel and her observation report (Exhibit P-11) were unpersuasive regarding these matters, for the reasons already discussed in part A of this Decision.
In other words, I find nothing in Mother’s testimony (or in other parts of the record) that is persuasive that DPS fell short of its legal responsibilities by either failing to provide appropriate evaluations of Student or failing to provide special education services necessary for Student to develop to his maximum potential, with two relatively minor exceptions discussed below.
Two deficiencies remain to be addressed. First, there was an admission by the 4th grade special education teacher (Mr. Hickey) that he recalls missing 3 or 4 sessions with Student and believes he made up approximately 50% of those missed sessions, therefore leaving 1 or 2 sessions missed and not made up. Through cross examination, Parents raised the implication that Mr. Hickey missed many more than 3 or 4 sessions, but Parents did not present any evidence on this issue. I conclude that missing 1 or 2 special education sessions within the context of the special education services provided Student since April 1997 is de minimus and does not merit an award of compensatory education services.
Second, in April 1999 (4th grade), Mother felt that Student had significant problems with his academic work and pressed DPS for an evaluation. Apparently, DPS staff at first declined to do the evaluation but then agreed to proceed with an evaluation. Nevertheless, the evaluation began later the same month that it was requested (April 1999). The evaluation was then discontinued temporarily by agreement of the parties, and was completed in November 1999 by Mr. Hickey, a DPS special education teacher. DPS may be faulted for its initial refusal and consequent delay in initiating the requested evaluation. However, the initial delay was minimal and the fact that the parties agreed to discontinue the evaluation until the beginning of the next school year mitigates a claim for compensatory services based on the date of completion of the evaluation.
For these reasons, I conclude that Student is not entitled to compensatory education services.
ORDER
Dedham Public Schools shall continue to provide Student with the educational and related services set forth in his most recent IEP (Exhibits P-1, S-10).
By the Hearing Officer,
William Crane
Dated: March 19, 2001
COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
Footnotes
[1] The applicable statute of limitations provides that the civil rights action “shall be commenced only within three years next after the cause of action accrues.” M.G.L. c. 260, s. 5B. See also McGuinness v. Cotter, 412 Mass. 617, 591 N.E.2d 659, 662 (1992) (statute of limitation “normally governs the time within which legal proceedings must be commenced after the cause of action accrues”). For a discussion of the First Circuit’s understanding of the accrual issue, see Murphy v. Timberlane Regional School District, 22 F.3d 1186, 1194 (1st Cir. 1994) (issue of when an action accrues in an IDEA claim is governed by federal law; IDEA claims accrue when the parents know or have reason to know of the injury or event that is the basis for their claim).