NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
UNIVERSITY OF THE STATE OF NEW YORK
STATE EDUCATION DEPARTMENT
__________________________________________ In the Matter of C.T. and K.T. on behalf of S.T.,
Petitioners, SED Case No. 505670 -against-
ARLINGTON CENTRAL SCHOOL DISTRICT,
Respondent. ____________________________________________
This matter was commenced by the filing under date of July 19, 2017, of a demand by the parents of S.T. for a due process hearing seeking, in essence, the creation of a new IEP that more appropriately addresses the specific educational needs of S.T. (The Petition is marked in evidence as District Exhibit 1, D1.) By agreement, the Petition incorporates the school years referenced in an earlier similar petition that was withdrawn without prejudice. Accordingly, at issue here are the school years 2015-2016. 2016-2017, and 2017-2018.
Petitioners are represented by Gina DeCrescenzo PC, and the Arlington Central School District is represented by Michael K. Lambert of Shaw, Perelson, May & Lambert, LLP.
A prehearing conference was held September 12, 2017. Hearings were held on the following dates: November 6 and 26, 2017, January 10 and 22, February 22, May 21, 2018. Context
S.T. was born April, 2007, and was an 11-12 year old girl during the course of this hearing. She has completed fifth grade at Noxville Elementary School and will enter 6th grade this coming September, 2018. Although she has some academic strengths, she is performing well below grade level in reading and math. She has had indications of deficits in both areas in varying degrees since first grade.
Initial evaluations conducted by the District in March, 2014, at the request of her parents showed her scores to be in the average to low average range (D13). The District did not at first deem her eligible for special education services, but classified her shortly thereafter as Other Health Impaired upon a further review of her testing and upon receiving a diagnosis of ADHD from a physician chosen by the parents (D4).
On consideration of further reports and a neuro-psychological report obtained by the parents from the Yale Academic Skills Clinic, the Committee on Special Education (CSE) at its meeting of June 8, 2016, changed the classification to Learning Impaired (D8).
S.T. had been receiving Academic Intervention Services (ASI) since grade one and was in an Integrated Co-Teaching classroom (ITC) starting in the 2014-15 school year. AIS, (sometimes referred to in this matter as RTI, Response to Intervention) is a pull-out class focusing on special subject areas. An ITC is a class that has a general education teacher and a special education teacher working together in a general education classroom. During the three years here in question S.T. has progressed to more intensive attention and, in addition to ITC, has also been instructed in special, non-integrated classes for math and for ELA (English Language Arts).
The details of S.T.’s academic performance and needs and the District’s efforts to address her needs as are the parents’ assertions of the shortcomings of the District’s efforts are contained in the descriptions of the testimony of the witnesses and in the discussion section of this decision.
Basically, the parents are dissatisfied with the lack of progress of their daughter and with the programs that the district is providing. In particular, they believe that S.T.’s lack of reading skills (primarily decoding skills) require a more intensive, 1:1 attention via a peer-reviewed system, such as Orton-Gillingham and/or Wilson, as recommended in a report by a neuropsychologist that they submitted to the CSE. The District believes that the multi-sensory approach it is using with S.T. is adequate to her specific needs and that she, in fact, is making adequate progress in light of her learning disability.
For the reasons set forth below, I find that the District did provide a free appropriate public education for S.T. in each of the challenged years. Testimony of District Witness Kylie Urso
Kylie Urso is a school psychologist with an MA in school psychology from Marist College and thirteen years’ experience working as a school psychologist, the last seven of which have been in the Arlington School District.
Ms. Urso first came into contact with S.T. in 2014 at the end of S.T.’s first grade after S.T.’s parents, K.T. and C.T., had requested an initial evaluation. (See referral letter, D22.) She performed an initial assessment in March of 2014 by administering the Wechsler Intelligence Scale for Children, fourth edition, the WISC IV. The test results indicated that S.T.’s overall cognitive profile was within average range and that she had strength in processing speed (which shows her ability to take in novel information), scoring in the high average range, primarily in visually based information. The results also showed weaknesses in verbal comprehension and in working memory, both in the low average range. Her verbal skills were on the lower end of the average range.
From her observation of S.T. in math class, Ms. Urso noticed that she was having a hard time sitting still (Transcript at page 37, Tr. 37) and having difficulty understanding the math concepts being taught.
Ms. Urso concluded that S.T. was “certainly intelligent” (Tr. 38), had certain strengths, primarily in processing speed, but noted that “it was apparent that she was having a difficult time maintaining her attention for extended periods of time whether it be in the classroom or in the 1:1 assessment setting” (Tr. 39).
Ms. Urso was asked to refer to a series of evaluations and reports regarding S.T. dated as of February and March of 2014, including a social/health (D11), medical and physical (D10), speech and language (D12), and academic (D14).
The social/health report indicated that S.T. was a sweet child who got along with friends. The speech and language evaluation, initiated at the request of S.T.’s parents, was conducted by Deidre M. Convery-Bernard, a state licensed speech-Language pathologist, and concluded that S.T. “demonstrates average ability in listening, oral expression, and vocabulary knowledge at the one-word level.” This evaluation’s recommendation was that “Academic and/or Special Education support in the area of Language is not indicated.” (D12 at page 2, D12- 2).
The academic evaluation was conducted by Kelly Kondas, an education specialist, and utilized the Woodcock Johnson III Tests of Achievement. Although S.T. was not receiving services through special education, she was receiving remedial support in reading and also differentiated instruction in a co-taught classroom. The tests involved in this WJ-III series showed S.T. to be in the average range:
The subtests administered included a Reading Composite, Mathematics Composite, and a Written Language Composite. With an average standard score ranging from 90 to 110,
S’s academic skills and her ability to apply those skills are within the average range. Her fluency with these academic tasks are low average. S performed within the average range in reading, mathematics, written language, written expression and phoneme- grapheme relationships (D14-1).
Ms. Urso identified D15 as a speech and language assessment independently obtained by S.T.’s parents and supplied to the CSE. It was prepared by Alyssa McKeever, a speech language pathologist, and concluded that “Overall, S is an engaging young girl who exhibits a specific deficit in phonological awareness and working memory which is greatly impacting her ability to gain the necessary reading skills for academic success” (D15-5,6). Ms. McKeever recommended, inter alia, that S.T. be provided with explicit phonological awareness instruction and explicit decoding/encoding (phonics) instruction (D15-6).
Ms. Urso said that, except for D15, the independently obtained speech/language evaluation, the above-referenced reports were available to the CSE at its meeting in April of 2014. The CSE also had the results of the Woodcock Reading Mastery Test, which showed performances generally within average ranges, although it did reveal that S.T. had some difficulties in some components of the phonological awareness area and needed questions repeated.
The information in the following several paragraphs was provided by the testimony of Ms. Urso.
Based upon the information available as of the April 29, 2014, CSE meeting, the Committee determined that S.T. was not eligible for special education services, but agreed to meet again in six weeks to review further testing (D3). The parents agreed to follow up with S.T.’s pediatrician to obtain a medical report that might be pertinent. Subsequently, a Conners Rating Scale was performed (D79). It showed concerns in the areas of inattention and learning problems. There were no behavioral difficulties.
The CSE met again in June to review the additional information collected since the April meeting. It had both the Conners report and a letter from Dr. Sicatello provided by S.T.’s parents (D10). Dr. Cicatello, a developmental pediatrician, diagnosed S.T. as having ADHD and, noting her language and math weaknesses, recommended special accommodations and individualized remediation services in reading and math.
Based on these added reports the CSE classified S.T. as Other Health Impaired (D4). The IEP provided for integrated co-teaching (ITC) to address S.T.’s needs. The June, 2014, IEP contained goals relating to study skills, reading (including decoding skills), writing, and math. It also contained program modifications and accommodations, including “check for understanding,” “refocusing and redirection,” ”break down directions into smaller unit,” and “Special seating arrangements,” all of which Ms. Urso deemed appropriate.
In November, 2014, the CSE called for occupational therapy screening.
The CSE met February 25, 2015, for S.T.’s annual review (the meeting was held in February rather than at the end of the school year in order to have the participation of S.T.’s special education teacher who was about to go on maternity leave). At that meeting the OT report, D17, was reviewed. It revealed that S.T. had motor and sensory delays, and, as a result, the CSE provided for occupational therapy in a small group, 2:1, one time a week for 30 minutes. Ms. Urso’s recollection of the February 25th meeting was that S.T.’s teacher had stated that S.T. was making gains. Ms. Urso made reference to the Academic Intervention Services (AIS) that S.T. had been receiving and said that it was noted at the meeting that S.T. had been making gains there too. The AIS service was a pull out service which focused at least in part on decoding skills Tr-61. S.T.’s parents had wanted a decoding goal specified in the IEP. Ms. Urso repeated that decoding was being addressed primarily through AIS. The ICT integrated class was continued now including a teaching assistant.
This witness was next asked to testify about the June 8, 2016, CSE meeting, which produced S.T.’s IEP for her fourth school year (D8). It was at that meeting that the CSE considered a parent-produced report from Lesley Hart, Ph.D., of the Yale Academic Skills Clinic (D19). Ms. Urso stated that the report described S.T. as struggling with decoding and as having a learning disorder.
Ms. Urso said that the inattentive problems that had been primary for S.T. at the outset, had improved, but that there were continued areas of difficulty in reading, writing, and math. With this information and Dr. Hart’s report taken into consideration, the CSE changed S.T.’s classification from Other Health Impaired to Learning Disabled (D8).
It was felt that a more intensive level of support was needed (Tr. 80). Program changes in the IEP included a special education class, 12:1:1 for one and a half hours a day and a resource room for 30 minutes a day. The special education class would address reading and writing. The type of reading instruction given was identified by Ms. Urso as a “multi-sensory approach” (Tr. 81).
On November 10, 2016, there was a program review to determine how the program was working for S.T. (Tr. 82). Ms. Urso said that the program “seemed to be working for S” (Tr. 82). Ms. Urso’s recollection of discussions at this meeting was that S,T. had been making gains. The November program review write-up contained the following statement: “Student’s special class ELA teacher reviewed and discussed student’s progress and response to the instruction provided in this setting. Student is a positive participant in class, works hard and is making progress. Student’s confidence appears to be increasing” (D9-2).
Ms. Urso testified that the parents had expressed their view that S.T. was having a good year so far (Tr. 83, 15-16).
It was noted that the special education class was reduced from an hour and a half to 45 minutes because it was felt that the writing portion would be better served in the general education class and the reading portion would continue in the special class setting. Also the resource room was devoted to math at the request of the parents (D56).
The IEP for the fifth grade is D63. This was a meeting held June 7, 2017, and represented an Annual Review and a Reevaluation, which is conducted every three years. Ms. Urso conducted the psychological evaluation (D78). She stated her results as follows: “Her overall full scale IQ was similar to three years ago. She continued to have strength in processing speed. Her verbal comprehension score had increased significantly” (Tr. 92).
Ms. Urso identified reports that she stated were considered by the CSE at the June 7, 2017, meeting, including an occupational therapy re-evaluation, classroom observation that was completed by Angie Schneider, a special education teacher, an educational re-evaluation, an assistive technology evaluation, and a social history re-evaluation. When asked whether or not S.T. had been making gains through the program that had been developed by the SCE for her fourth grade, Ms. Urso responded that “She was making gains, her teachers were seeing positive results as far as the response to the interventions they were providing” (Tr. 95- 96).
Ms. Urso noted that the teachers felt that S.T. no longer needed to have the resource room included in the IEP, but it was kept because of the parents’ preference (Tr. 98-99).
A change in the size of the special education class was made in the IEP at that meeting.
The change was from a 12:1 ratio to a 5:1 ratio and was occasioned by the observation that S.T.
worked best in small groups and by the wishes of her parents to have a more intensive ratio (Tr. 99-100). The change was made notwithstanding the reported opinion of S.T.’s special class reading teacher that S.T. had made gains in the 12:1 setting.
There were further program modifications and accommodations in the June, 2017, IEP, including movement breaks, a graphic organizer, some visual supports, and access to a word processor. As a result of an assistive technology evaluation, S.T. was provided with a Read & Write Chrome, which is a computer program that aids writing and permits talking to the computer to obtain information. And she was provided access, through the computer, to electronic textbooks (Tr. 102-03).
S.T.’s scores on the occupational evaluation were such that it was no longer deemed necessary to have occupational therapy in the IEP, although there was provision for occupational consultation (Tr. 104-05).
It was Ms. Urso’s opinion that the program set forth in the June 7, 2017, IEP was appropriate and continued to address S.T.’s needs (Tr. 107)
On cross-examination counsel asked what research-based methodologies would be used in S.T.’s 12:1:1 class. Ms. Urso responded that it was “The multi-sensory approach…” (Tr. 144- 05). She described the multi-sensory approach as follows:
An approach that includes hands-on learning, auditory learning, she would be able to write things, multi-sensory approach meaning a variety of aspects of learning, which yes, there are programs that address that specifically, but she was using multi-sensory approach with different aspects from a variety of educational areas to supplement that instruction (Tr. 144).
On cross-examination Ms. Urso was also asked about the findings listed in D74, the educational evaluation done in March of 2017. That report indicated that S.T., then in fourth grade, had various reading and math scores equivalent to students on a nation-wide basis on a second grade level. Although Ms. Urso opined that age-related equivalents were a more reliable indicator of performance, she had no age-related information at her disposal. Also, she was unable to say how S.T.’s performance stacked up to students in her own school district.
Testimony of District Witness Lynette Battle
Lynette Battle was presented as a witness for the District. She is a certified special education teacher for first through sixth grades and has a Masters in Literacy Education. She was the special education teacher for S.T. during her second grade year from September through March when she went on maternity leave and again for S.T.’s entire third grade year.
Ms. Battle testified that, when she first came into contact with S.T., she had had a diagnosis of ADHD and “she had dome struggles with reading, writing and math” (Tr. 172).
Ms. Battle explained that guided reading levels established by a program referred to as Fountas & Pinnell were employed in the District and that, at the beginning of S.T.’s second grade, she started with a kindergarten reading level and that, by February of second grade she was reading at a level associated with the end of first grade. In other words, she had advanced a full year in reading level from September to February, but she was not yet at an appropriate second grade level.
Ms. Battle said that, during her months with S.T. in second grade, she spent one hour a day with S.T. on reading in the context of small groups within integrated co-teaching (ICT) (Tr. 179- 80). She stated that she utilized several ways to enhance decoding and comprehension and reading fluency, including phonics for decoding and reading through a program called Whole Word (Tr. 181-83). She felt that inattentiveness was a factor in S.T.’s learning and presented hurdles to her progress in guided reading (Tr. 184). Although she said that she was working on decoding, she also said that she was mainly working on comprehension and left decoding mainly to the AIS support that S was receiving at the same time (Tr. 192).
The February, 2015, IEP noted that math fluency was an area of weakness for her (Tr. 199). Ms. Battle provided one hour a day of math instruction. This was also done in the general classroom in the co-teaching context where S.T. could be taken aside in small groups for re-teaching (Tr. 201- 02).
Asked what S.T. was better able to do by March than in September of her second grade year, Ms. Battle replied that S.T. was able to read more complex texts (Tr. 185)..
Although Ms. Battle characterized the discussion at the February, 2015, CSE meeting as acknowledging some challenges in S.T.’s writing and math (Tr. 189), she stated that she and the general education teacher were pleased with S.T.’s progress, both in “coming out of her shell a little bit” and in her “overall general academic progress” (T 190).
In speaking about S.T. in her third grade year, Ms. Battle said that it became more evident that S.T. was struggling with expanding the volume of her writing (Tr. 196). At the beginning of that year, she said, S.T. had slipped by one level in reading, a not unusual slippage for children after the summer school vacation. By the end of third grade S.T. had progressed into a guided reading level of K (just one percentage point short of L (Tr. 213). Level L represents a middle of second grade level, over a year behind in reading. But, Ms. Battle explained that, nevertheless, “That is progress” (Tr. 213). Children, generally, are expected to advance three guided levels a year, and S.T. had in fact advanced three levels (Tr. 191).
Ms. Battle characterized the June, 2016, CSE meeting as “a little feisty” (Tr. 216). This was the meeting at which S.T.’s IEP for her fourth grade year was set. She said that the parents wanted more direct reading attention. Accordingly, a goal was added to the IEP asking that S.T. should read on the fourth grade level fluently and accurately and at an appropriate rate. This was also the meeting at which the parent-obtained report of Dr. Hart of the Yale Academic Skills Clinic (D 19) was considered, and S.T.’s classification was changed to Learning Disability.
Ms. Battle said that the IEP for the fourth grade reflected all of S.T.’s areas of weakness and tried to address them and took the parents’ requests into account (Tr. 223-24).
On cross examination Ms. Battle defended the absence of decoding goals in S.T.’s third grade IEP by stating that, although decoding was a weakness, she believed that comprehension was to main focus area at that time and that it was in third grade that decoding became more noticeable because S.T. wasn’t making as consistent progress as she would have liked (Tr. 272). Also, since the curriculum is more demanding in third grade, a student’s weaknesses become more apparent. She added that decoding was being worked on through AIS and in her teaching efforts notwithstanding no specific mention in the third grade IEP. “So decoding was worked on throughout the year in third grade. Even so [though] there wasn’t a goal so you focus on the – you write the goals that you want to work on and that you focus on, but it doesn’t necessarily mean you write goals on every weakness that she has” (Tr. 271-72). Ms. Battle stated that she pulled S.T. aside and worked on more decoding skills 4 times a week with one other student with the same difficulty.
Ms. Battle was asked on cross-examination about researched reading programs for decoding deficits and specific learning disability with impairment in reading, and Ms. Battle responded that there were multiple programs that called for intensive instruction, specifically the rules of sounds, symbols, phonics and decoding (Tr. 288). Although she was familiar with the overall Orton-Gillingham program, Ms. Battle said that she had not been trained in it, but that there were teachers that were (Tr. 289-290).
Ms. Battle said that, at the time that she taught S.T., she was not trained in either the Wilson or the Stevenson reading programs, but that she had and used resources for Stevenson (Tr. 292).
Ms. Battle said that, because S.T. was not making consistent progress, her instruction was changed in January of third grade (Tr. 319-20). “She was receiving Stevenson’s four times a week and Wilson one time a week” (Tr. 320). The Stevenson instruction was given by Ms. Battle in the co-teaching setting and the Wilson within the AIS program. The AIS instructor was said to have some Wilson resources, but had not been specifically trained in Wilson at that time. Ms. Battle conceded that she did not do specific formal measurements of progress related to her teaching using the Stevenson resources (Tr. 327, 331). Her monitoring was through informal assessments and running records (Tr.331-32).
Ms. Battle did not agree with the assessment of Dr. Hart that S.T. had no decoding skills (Tr. 265-66). She testified that she was in position to know what S.T.’s weaknesses were by working with her on a daily basis and was able to adjust her teaching accordingly, using the various tools of her training. Testimony of District Witness Nicole Sheehan
Nicole Sheehan has a Masters in special education and literacy. She first came into contact with S.T. for her second grade, the 14-15 school year. Her job was to analyze data and administer tests and work with S.T. on reading. Ms. Sheehan utilized the Leveled Literacy Intervention program developed by Fountas and Pinnell, a research based program (Tr. 446). She worked with S.T. 4 days a week for 30 minutes during group support (See D82).
S.T. was one and a half levels below what was expected of an average second grader; the expected average would be reading independently at level K, while S.T. was reading instructionally at level J (Tr. 464). More specifically, S.T. in October read independently at level E and by June read independently at level J. This represented progress because she jumped up more levels than second graders who were expected to go from J to L. Her progress was greater, but she was still 1 ½ levels below her classmates (Tr. 467). Referring to Exhibit D82, Ms. Sheehan testified that S.T. made progress with her phonics skills (Tr. 468-69).
As to what she was working on with S, Ms. Sheehan stated, “So consistently for every single session, we were working on phonics and comprehension” (Tr. 473). The context for this reading support was AIS in small group pullout. In this case there were 3 in the group and, although the witness did not remember the level of the other students in the group, she said that “typically we try to keep students at least very similar in the levels, they are not too far off” (Tr. 475-76).
Also she said that the reading teacher for the next year, the third grade year, continued to use the same leveled literacy intervention program “because that had been a successful program for S, all through second grade year” (Tr. 474).
Ms. Sheehan noted that S.T.’s third grade teacher, Mrs. Davis, called her attention to the fact that S.T. was not making the progress that she had made in second grade (Tr. 477-78). As a result, the two of them met to discuss what changes should be made for S.T. They also met with S.T.’s co-teachers, Kurdi and Battle. They decided to have Mrs. Battle work on phonics instruction for four days a week and to have Ms. Sheehan work with S.T. one day a week. Mrs. Battle employed elements of a teaching program referred to as the Stevenson method, which had been recommended by S.T.’s parents. Ms. Sheehan, whose focus also shifted to phonics, changed to a “multi-sensory phonics teaching approach” rather than continue with the Leveled Literacy Intervention program. In doing so, Ms. Sheehan used materials of the Wilson reading program that she had obtained, although it was not the Wilson program as such (Tr. 487).
Ms. Sheehan described the charts in D83 reflecting the number of words that S.T. was able to read correctly at various points. S.T. was said to have enjoyed filling in the charts herself (Tr. 489). Ms. Sheehan concluded that these charts reflected S.T.’s progress in phonics and were “clearly motivating to her … she was able to see her own growth and progress over a period of time” (Tr. 490).
Finally, on direct examination, Ms. Sheehan was asked to look at D80, and she noted that it reflected progress in reading level from reading at an independent level F in the fall of her second grade year to a reading independently at level M by the end of her fourth year.
On cross-examination it was brought out that Ms. Sheehan had not had training in the Literacy Intervention Program when she was working with S.T. in the 2014-15 and the 2015-16 school years, S.T.’s second and third grades
Her work with S.T. during her second grade year was Sheehan’s first year as a reading teacher. She said that she did know about students with various reading disabilities through her training for her Masters in Literacy. She conceded that she had not had training in dyslexia as such or in the Orton-Gillingham programs (Tr. 495-96).
“I was not looking for learning disabilities. I was looking for learning deficits in reading” (Tr. 497). “In her second grade year, I recall that we were working primarily on phonics deficits and accuracy. Typically her accuracy did not impact her comprehension of text” (Tr. 498). In response of a question on cross-examination, Ms. Sheehan indicated that phonics was worked on in every lesson: “The phonics piece of the leveled literacy intervention lessons is completed every lesson. It’s the vocabulary and the fluency pieces that we have a little more flexibility with. So phonics – we completed every single lesson, we did a phonics activity” (Tr. 499).
The witness, asked about decoding, related her teaching of phonics to decoding, saying that S.T. needed those particular phonics skills in order to apply them to decode words and gave examples (Tr. 500-01). Asked whether her growth in phonics meant that S.T. made progress in decoding, Ms. Sheehan said, “Yes, those two are tied together” (Tr. 503). This witness stated that S.T. had made adequate progress in decoding (Tr. 503).
The change of teaching approach during S.T.’s third grade year was referred to on cross-examination. The witness explained that, instead of teaching phonics as part of the sessions with S.T., now phonics was taught exclusively (Tr. 526-27). Testimony of District Witness Maureen Frischknecht
Maureen Frischknecht was S.T.’s fourth grade teacher in an integrated co-teaching class. She is a certified classroom teacher and has a Masters in Literacy. Her added qualification to teach reading came through her undergraduate and methods courses and her experience teaching reading to sixth graders (Tr. 549-551).
On direct examination she explained what her Masters in Literacy consisted of: “It entailed courses in a balanced approach to literacy and thinking about reading and writing and speaking and listening, decoding, fluency, comprehension, vocabulary. It was mostly method courses, case studies, practicing assessments, article reviews” and went on to describe what is meant by a balanced approach to literacy (Tr. 551-52).
In her integrated co-teaching class, Ms. Frischknecht taught science, social studies, math, and writing. The special education teacher instructed S.T. in a resource room setting. S.T. was taught writing in the co-teaching class (Tr.553). Asked to talk about S.T. in terms of her educational profile, this witness said: “S seemed to fit the profile of a student who would be in an integrated co-teach classroom. She was able to keep up with the other students. She was able to understand content area information. She was able to progress through our lessons. Anything that she needed in terms of extra support could be provided in the classroom from either myself or the special education teacher. We didn’t have any social-emotional concerns…” (Tr. 553-54).
Ms. Frischknecht met with parents at the beginning of the school year to go over IEP and “what are the best ways that we can best serve S” (Tr. 558). They spoke about reading being the area of need to focus upon and changing to 45 minutes outside of the classroom with Mrs. Rao for reading and 45 minutes in the co-teaching classroom for writing with Mrs. Schneider (Tr. 559). The resource room was used for math instruction (Tr. 562).
Asked what was done in the special class for reading, Ms. Frischknecht responded that, “To my knowledge, the focus was on decoding words, phonics, sight words” (Tr. 563). Asked then about whether she was able to discern any progress in reading, the response was, “… throughout the year I noticed that S. was definitely able to read texts that were progressing in reading level. She was gaining more confidence with her reading…. I noticed with S. that she was better able to make meaning from her text even if the words weren’t 100 percent correct by the end of the year…” (Tr. 566).
Ms. Frischknecht indicated that there was frequent communications back and forth with S.T.’s parents throughout the school year (Tr. 568). She was next asked about S.T.’s writing program and whether there were progress or lack of progress in writing, and Ms. Frischknecht responded that S.T. “did great,” although she mentioned areas with which S.T. had some difficulties (Tr. 571-73) and needed support (Tr. 573-75).
Asked how S.T. navigated her social studies curricular requirements, Ms. Frischknecht stated: “She did wonderful. It was not difficult for her to keep pace with her classmates. She participated in whole group discussions, she was always a group member who had things to offer, understood the directions and what the requirements were, did her very best in each day.” Likewise, she stated that S.T. had no difficulties in meeting the curricular requirements for fourth grade science (Tr. 577-78).
Ms. Frischknecht responded to questions about S’s relations to her peers: “…she had a lot of friends, she was very social, happy, sometimes silly” (Tr. 578).
Apart from a time when there were scary clowns rumored to be roaming the town, Ms. Frischknecht did not see anxiety, except perhaps in S.T.’s concern to keep pace with other students, especially in larger groups (Tr. 579). Ms. Frischknecht confirmed that S.T. was able to keep up with the other students in her class (Tr. 579).
Again, Ms. Frischknecht stated that S.T. “presented as a child who fit perfectly into the integrated co-teach model” (Tr. 595). Asked generally what sort of fourth grade year S.T. had, Ms. Frischknecht replied:
I think she had a successful fourth grade year…. Based upon not only the progress that she made but she seemed to enjoy herself at school and have fun. She had friends, she participated in all the activities, whether they were daily day-to-day activities or they were something special, and I had in recommending what we thought was necessary for fifth grade, we thought the program for the most part was perfect for her (Tr. 597).
As to the IEP for the fifth grade year, Ms. Frischknecht, noting that she and special education teacher Schneider both thought that S.T. had made nice gains in her fourth grade year, recommended integrated co-teaching again for fifth grade (Tr. 598). They both thought that the resource room for math was not necessary because math needs could be met in the flex time portion of the co-teaching class, but resource room for math was continued on the IEP because the parents preferred to keep it (Tr. 599).
At the IEP for the fifth grade year, Ms. Frischknecht shared her view that S.T. had gained in confidence in academics, as reported in D63-2.
Finally, on direct examination Ms. Frischknecht was asked whether she had an opinion as to whether there were any of S.T.’s areas of need that were not being appropriately addressed going into her fifth grade year, and Ms. Frischknecht said, no (Tr. 606).
On cross-examination, MS. Frischknecht said that, while S.T. could effectively master the content of what was being taught and comprehend lessons that were read aloud just like everyone else in her class, she would not be able to read the texts for social studies and math independently (Tr. 613-14).
From conversations MS. Frischknecht had with S.T.’s special education teacher, she formed the impression that the focus of the special education reading effort was on decoding words, fluency in reading words, and phonics (Tr.615). Ms. Frischknecht knew from speaking with the teacher that she was using a multi-sensory approach to phonics as her methodology (Tr. 616).
Asked about S.T.’s weaknesses other than spelling, Ms. Frischknecht replied: “Decoding is a gap for sure, but I noticed that throughout the year she was making progress with that and also that her weakness in the area of decoding wasn’t always affecting her ability to make meaning from the text and to understand what she is reading” (Tr. 617-18).
Ms. Frischknecht acknowledged S.T.’s weakness in writing (Tr. 617), and that “it was difficult for her to organize sentences that would make sense for her reader” (Tr. 623). Testimony of District Witness Jennifer Rao
Jennifer Rao is a teacher in rlingtonA with a Bachelor’s degree in psychology and a Master’s degree in education. She is certified in both general education and special education. Ms. Rao was S.T.’s fourth grade reading teacher in a special 12:1:1 class setting. She worked with S.T. individually in the 12:1:1 class since she did not have any students who could be appropriately grouped with her (Tr. 775). Ms. Rao described her work with S as follows:
…I was at the time being trained in Wilson instruction. So I had all of these materials, it’s a multi-sensory approach and she would come with me and she had a notebook that she would work in every day, we had sound/symbol cards which she was working with.
I had reading passages specific to that to work on her decoding and comprehension throughout that program. So each day we did those drills, reviewed when necessary if there was ever anything that she needed a little bit of extra help with before moving on (Tr. 778-79).
Ms. Rao administered “running records,” which she described as assessments to determine a student’s reading level. They were done three times a year at spaced intervals. Ms. Rao reported that S.T. moved from a level J at the beginning of the year to a level M at the end of the year and said that that reflected progress (Tr. 780-81). She also said that S.T. was moving up in the steps of the Wilson program and opined that S.T. was making gains in the area of reading (Tr. 782-85).
Ms. Rao said that she had reported to the CSE at its June 7, 2017, meeting that in her special reading class that S.T. “… was making gains, she was growing in confidence, becoming a stronger reader, her comprehension was always good….” Further, it was Ms. Rao opinion that S.T. could probably have made gains in reading in the co-teaching class as well (Tr. 787). Asked why, then, was there a change in the June 7, 2017, IEP, from a 12:1 special reading class to a 5:1 reading class, she responded that it was to accommodate the parents who wanted the more restrictive setting (Tr. 794-96).
On cross-examination, Ms. Rao was asked why, if she thought S.T. had made progress using Wilson in the fourth grade, she did not recommend the continuance of its use for S.T.’s fifth grade. Ms. Rao answered: “Because I didn’t feel that was the only way that it could benefit S.T. It doesn’t have to be specific to Wilson for her to progress” (Tr. 821).
It was made clear on cross-examination that Ms. Rao did not perform any pre or post testing as is apparently called for in the Wilson instruction manual (Tr. 822). Testimony of District Witness Angelique Schneider
Angelique Schneider was S.T.’s special education teacher starting in January of S.T.’s fourth grade year and participated in S.T.’s IEP for the fifth grade year. She has a dual certification in K through 6 for general education and one through 6 for special education. She has taught for 18 years, 16 of which has been in special education. She has been in the Arlington School District since 2008, teaching continuously in a self-contained classroom until moving to co-teaching for the past two years (TR. 349).
Ms. Schneider’s perception of S.T. upon first contact was that she was a well-adjusted fourth grade student with nice peer and adult relationships and that she was handling the modifications and accommodations that had been put in place for her well (Tr. 351).
During Ms. Schneider’s time with S.T. in fourth grade, she worked on math, social studies and science in the co-teaching general class and on math and writing daily in the resource room for 30 minutes (Tr. 352, 355).
With regard to Ms. Schneider’s work with S.T. on writing, she said that she “responded really well to the writing piece. She was motivated, she produced a lot of writing for us. It was just more of organizational supports, getting her started, allowing her to verbalize her thinking prior to starting the writing. And just doing the redirection, refocusing and keeping her on task if needed” (Tr. 359).
Asked how S.T. did in the fourth grade, Ms. Schneider said: “She had in my personal opinion she had a very successful year. She definitely had struggles as far as retaining information or needed things repeated or presented in a different way at times. However, she was very well adapted, very happy in the fourth grade program (TR. 359). She added: “So all her [many] accommodations or things that needed to do to keep pace with everybody else was able to do in the classroom for the most part” (Tr. 360).
Ms. Schneider next spoke about S.T.’s fifth grade IEP meeting. She had conducted an educational evaluation employing the WIAT-III tests. The results showed deficits and some skills. S.T. performed below average most in the ELA area, but her math and some of her writing skills were within the average range (TR. 363). Her reading comprehension was at the bottom of the average range; her word reading score was below average, and her pseudo- words score was within the average range. Ms. Schneider noted that the pseudo word test focused on phonetic skill and was said to represent an assessment of decoding skills (Tr. 365).
Ms. Schneider testified that S.T. had some assistive technology, at least toward the end of the school year. She had access to a computer (referred to as a “chromebook”) and had a voice-to-text feature usable on the computer. And S.T. had access to a graphic organizer, a visual organizational tool used to help students organize their thinking. This was used during the writing portion of the ICT class (Tr. 372-373).
Although MS. Schneider reported at the CSE meeting that S.T. had a lot of success, she noted that parents’ concern with the amount of progress that was being made in the areas of reading and math (TR. 374). The witness noted that, although scores were below grade level for reading and math, S.T. was progressing in reading at the same pace as her peers. This conclusion was based upon levels of achievement on the Fountas & Pinnell metric (Tr. 375-76).
Ms. Schneider noted that the teachers felt that the resource room was no longer needed and that S.T. would be better off not being pulled out of the general classroom where she had ICT support. But the IEP did not omit the resource room, according to Ms. Schneider, because the parents expressed their wish to have it continue. They felt that, because of S.T.’s low scores in math, more intensive attention in math available through the resource room was preferable (Tr. 383-84).
The IEP also provided for continuation of a special class for reading, but the 12:1 class size was reduced to 5:1 (Tr. 387). It was said that S.T. received essentially one-on-one instruction because she was the only student in that setting that required it (Tr. 385–86). It was noted that the CSE discussion questioned the need for a pull-out for 1:1 reading. It was, however, maintained (Tr. 383-84).
Ms. Schneider expressed her opinion about the IEP for S.T.’s firth grade year: “I thought it was a strong program for her going forward to fifth grade... Because we took all the testing information into consideration as well as … what was expressed as concerns of the parent at the time and tried our best to really incorporate that into a document, that was one that supported her going forward in her program” (Tr. 391-92).
On cross-examination, Ms. Schneider said that she did not include in the forefront of her March, 2017, educational evaluation of S.T. a finding that she was two years behind her classmates in oral language and three years behind in reading fluency (Tr. 396-98). She also acknowledged that progress in decoding skills could not be measured by reference to the levels of advancement shown on the Fountas and Pinnell standards; that was because S.T. could have scored well if she was able to comprehend the materials even if her decoding skills had not improved (Tr. 402-04).
Counsel for petitioners asked about the guided reading level progress in the 2015-16 school year where the reports indicated that S had advanced one reading level from the fall of that year to the fall of the following year. Ms. Schneider said that the one level advancement justified a label of progressing because S.T. was “making progress” (Tr. 410-12). Ms. Schneider pointed out that, during S’s fourth grade year she advanced three levels in reading (Tr, 411).
Testimony of District Witness Cara Wilser
Cara Wilser, who has been teaching in Arlington since 1996, was the special education teacher in the co-teaching class for S.T. in her fifth grade year. She’ attended numberous conferences related to reading instruction including workshops for multisensory based reading. She has had training in the Orton-Gillingham method to the associate level, but has not gone to the level where she would be certified by the Orton-Gillingham Academy (Tr. 665-67).
Ms. Wilser is the special education teacher in S.T.’s co-teaching class and her reading teacher in S.T.’s pull-out reading class. Asked the extent to which S.T. fits or does not fit into the typical profile of a student in an integrated co-teaching class, Ms. Wilser responded:
…perfectly, she is able to follow the directions, she participates in the reading, the writing, the math lessons within the co-taught classroom. She adds to the book discussions, she asks questions. If she needs clarification she asks for that. Also she is aware of if she needs to use the standing desk or use different seating arrangements, she does that. She adds great insight into discussions that we have related whether to social studies or science, non-fiction units, book club talks (Tr. 671-72).
Ms. Wilser stated that S.T. progressed well in the group of five or six students in the reading portion of the integrated co-teaching class (Tr. 678-79). In response to questions, Ms. Wilser also said that S.T. had increased her level in the leveled reading program from the beginning of fifth grade to the date of the hearing, January 22, 2018. “She started the year at a Level M and she is between an N and an O currently” (Tr. 681).
Ms. Wilser next testified about her work with S.T. in her special reading class for 45 minutes a day. She says she does “elements of a multi-sensory approach starting with the review of the basic sounds, the consonants, the vowels” (Tr. 681). Ms. Wilser noted that she utilized principles of reading instruction that she was trained in by two persons associated with the Kildonan school and said that she is currently taking the Wilson Reading Program and uses elements of that reading system in teaching S.T. (Tr. 682). She stated that S.T. is responding well to that teaching and that “…she has improved in her ability to decode words, specifically to open, closed, silent E, soft C and G, and the mulit-syllable words” (Tr. 683).
Asked about the appropriateness of the June 7, 2017 IEP, Ms. Wilser responded that it was appropriate for her with the exception that it did not sufficiently address a breakdown on certain specific syllable types that she had observed in working with S.T. during the beginning of the fifth grade year. There was another CSE meeting on October 2, 2017, in which that concern was discussed and another goal was added to S.T.’s IEP that addressed that perceived deficit (Tr. 683-86). Ms. Wilser concluded that the modified IEP was appropriate because “…she has assistive technology, she has the special class reading which addresses her deficits and it just helps her in the areas where she is the weakest” (Tr. 688-89).
Next Ms. Wilser was asked what kind of year S.T. was having from September until the January date of the hearing, and Ms. Wilser replied: “She is having a very successful year. Her reading volume has increased, the amount she is writing and she is participating within a small group is wonderful” (Tr. 689). She said that she shared her assessment of S.T.’s year with S’s parents at a parent-teacher conference that she believed as in December, 2017 (Tr. 689).
On cross-examination, Ms. Wilser testified that she taught S.T. using what she had learned of two systematic approaches to teaching reading: Preventing Academic Failure (PAF) and Orton-Gillinham. She taught S.T. in a special pull-out class where S was the only one being taught because at the time there were no other students with similar needs (Tr. 698). Ms. Wilser said that, although S.T. was receiving 1:1 instruction, she did not require 1:1, since the systematic reading approach could have been taught in groups (Tr. 699-701). When pressed as to whether she was following a PAF, Orton-Gillingham or something else, Ms. Wilser answered that she was “…following a multi-sensory approach to teaching reading and I am using elements of the Wilson Reading System” and elements of other systems that she had picked up from other multi-sensory approaches (Tr. 702).
Ms. Wilser conceded on cross-examination that the trainers in the Wilson Reading System say to only use Wilson and not other programs. She was asked why she went against that advice and used elements of other reading programs. Her answer was, “Because I want to do what’s best for S. and I am in contact with her and I see how she is doing, and that’s what I am basing it on” (Tr. 703-04). She also said, “Different instructors have said varying things, that I have taken parts of it that have been successful for my students because my main goal is to help my students. So if I need to use something from a different multi-sensory approach that works with my student, that is what I use” (Tr. 702).
As to the status of Ms. Wilser’s training in PAF or in Orton-Gillingham, she conceded that she was not certified in either program, although she has an associate level for Orton- Gillingham (Tr. 705). Ms. Wilser stated that she is in a cohort that is being trained in the Wilson Reading System and is currently in a practicum in that systeim. She noted that the Arlington School District is paying for that training (Tr. 704-05).
Ms. Wilser stated that in fifth grade S. reads at a mid-third grade level. Asked, in light of that fact, how S.T. could access her homework assignments on a fifth grade level, Ms. Wilser replied,
She has books that are assigned to her that are at her reading level and if they are above her reading level, she has Bookshare where she can listen to them. Social studies and science work is done in class together… She is accessing the curriculum with support from the co-teacher and special education teacher (Tr. 733-34).
Ms. Wilser was also S.T.’s math teacher in resource room where S is the only student. Asked whether she has data regarding progress in math, Ms. Wilser replied, “I know she has made progress this year based on her unit one test from fifth grade number sense…she met grade level standards…” (Tr. 745). To the question, “If she achieves a score that’s within fifth grade range, do we know from that score whether or not she has made progress in her specific area of deficit?” Ms. Wilser said, “Yes, because she was able to show progress at solving word problems at a fifth grade level with adding and subtracting, with regrouping, also multiplication and division she did have some errors but she showed grade level ability” (Tr. 745-46). Although S.T. was able to complete that test on grade level, she still, as of the date of this testimony, had math difficulties and her math performance is inconsistent (Tr. 749-50).
On re-direct examination, Ms. Wilser referred to informal testing that provided some information about decoding, the Gallistel-Ellis test, and concluded that S.T. was making progress in all areas of decoding (Tr. 757-58). She also said that she was able to see progress in her daily observations of S.T. in the area of mathematics (Tr. 760-61).
In response to questions by the hearing officer, Ms. Wilser said that she is continuing with her training in the Wilson reading system and expects to be certified in it by May of this year (Tr. 768-70). Testimony of Petitioners’ Witness Dawn Nieman
Dawn Nieman is a private consultant engaged by the parents of S.T. She has a Bachler of Arts degree in elementary education and a Masters degree in reading She is a Fellow in the Orton-Gillingham Academy, which she described as a private entity consisting of practitioners and educators devoted to a specific methodology of teaching reading to dyslexic students and students with serious reading disabilities. The methods, developed many years ago and reviewed favorably in a noted longitudinal study done in the 1970s or 80s, is described by this witness as a “multi-sensory approach which means that children are seeing things, hearing things, feeling things all at the same time” (Tr. 864-868). “… it is multi-sensory, because it is direct and explicit, because it is emotionally sound, because you are building a scaffolding for those children and you learn how to break down the language” (Tr. 875). The witness described O-G as the “gold standard” for teaching dyslexic students (Tr. 874).
Ms. Nieman has gone through extensive training in the Orton-Gillingham (O-G) methods and is now among the very few in the country who are authorized by the Academy to train other teachers in the O-G methods and to issue the Academy’s accreditation to those who have gone through the Academy’s requirements for its various levels of achievement (Tr. 867).
At the request of S.T.’s parents, Ms. Nieman did an initial evaluation of S.T. in May of 2015, (toward the end of S.T.’s third grade year) and considered some of the results of testing done by the District. At a later date, she also saw the report of Dr. Hart of the Yale Academic Skills Clinic. Ms. Nieman found that S.T. had a profile that was similar to those of other students of hers who were considered dyslexic. She cited, for example, low phonemic awareness skills, not being able to manipulate sounds, or “crack the code,” by which she meant “being able to look at a word and determine how to break it apart either into sounds or into syllables, and then subsequently how to be able to put it back together to be able to spell it” (Tr. 886). She found that S.T.’s reading accuracy was in the ninth percentile, which she described as scoring at less than a first grade level (Tr. 894). Ms. Nieman felt that O-G method was appropriate for S.T. (Tr. 886-87).
Ms. Nieman started tutoring S.T. in May of 2015. She employed the O-G method of teaching. Directly after a few sessions, S attended a summer camp run by Ms. Nieman in which intensive reading sessions were conducted. The camp consisted of instruction for four hours a day, five days a week for five weeks, the last week of which was for post-testing (Tr. 883-84, 897). During camp S.T. received 1:1 O-G 45 minutes a day as well as 1:1 math 45 minutes a day.
Following that one time camp session (Ms. Nieman did not continue with the summer camp thereafter), Ms. Nieman tutored S.T. on an approximate schedule of once a week for a one hour session, all using the O-G method. That pattern of teaching continued through the date of Ms. Nieman’s testimony in this matter (Tr. 883).
At the end of the 2015 summer camp, Ms. Nieman continued private tutoring of S.T. once a week, although she noted that in order to do O-G with fidelity children should receive O- G instruction twice a week (Tr. 898). But, due to scheduling and availability issues, S.T. was tutored once a week on an ongoing basis (TR. 900-01).
Ms. Nieman’s attention was drawn to testing done in August of 2016 as reflected in Petitioner’s exhibit D (PD) and asked what that testing revealed. Ms. Nieman noted regression in word identification; S.T. had gone from 13th percentile in relation to her peers to 10th. She noted that, with the O-G method, students usually advanced two to three grade levels in a year, but that S.T. did not: “all of her percentiles are declining after that school year [2015-16] and that summer” (Tr. 902).
On direct testimony, Ms. Nieman was asked about the Fountas & Pinnell teaching method. She was critical of its emphasis on pictures over decoding skills. She said that she did not use Fountas & Pinnell because it “is not a norm-referenced testing kind of thing, but rather levels of literacy that are used to move children --- well, I guess to have them practice books at different levels, their levels” (Tr. 908-11).
Ms. Nieman was asked if she thought S.T. had experienced growth at the end of the summer of 2017, after she had worked with S.T. continuously for over two years, and she responded that, “I did see growth in the fact that we really started working quite heavily on Word Attack skills and having her decode nonsense words so she could apply them, apply the rules she had previously learned…” She continued, “So being able to teach S. the pieces of the words has been incredibly powerful for her in that she is able to read it, spell it and define it. Then apply that in hopefully the goal is to apply that in her subject matter classes” (Tr. 911-12).
Next Ms. Nieman was referred to exhibit PF and asked whether she had continued to work with S.T. during her fifth grade year. She had continued with S.T. once a week. The exhibit contained testing scores from camp in 2015 and the most recent testing done January of 2017. Ms. Nieman was asked to look at the most recent testing, done in the middle of S.T.’s fifth grade year (Tr. 914), and say what tests she used and what if any information she gleaned from that testing. Her response was:
… the tests were the Woodcock Rading Mastery Test, the Gray Oral Reading Test, the Test of Written Spelling, and then I also did Gallistel-Ellis which is not a norm-referenced test, but more of a phonics based test so I could specifically see which skills she was and wasn’t applying.
I would say looking at these scores were disheartening in that her scores are not what I would expect them to be.
I mean I can see very specific things like her comprehension is improving and her ability to spell more sophisticated words is definitely improving, but all her other scores are a little disheartening and not what I would expect to see based on the fact that she is of average intelligence and that so much effort has been put into the act of reading (Tr. 914-15).
Ms. Nieman was next asked, given her testimony that the scores were disheartening, what, if anything, that says about S.T’s profile and the use of O-G. The response was that she needs it much more frequently than she is receiving it, and that she is beginning to apply some of the skills but it’s not enough, it’s not in the --- it’s not the intensity she should be receiving it, and preferably when you --- it’s not at the end of a school day when she is already tired but rather as part of her school day (Tr. 915-16).
On cross-examination Ms. Nieman was asked about other reading programs, such as the Wilson program, that were multi-sensory and she acknowledged that she was not trained in them and did not know whether they included elements that she had indicated were part of the O-G method of teaching reading. These elements were identified as direct and explicit instruction and scaffolding (Tr. 919-20).
Asked if Ms. would characterize her instruction of from the spring of 2015 to the present as success building upon success and she answered, “Yes, I wish it would be more success but she is successful and when I see her and she has forgotten things because it may have been a week or two between the times I see her we have to backup, review and then move forward again” (Tr. 922-23).
Asked about progress in word identification and word attack issues as a result of the daily work during S.T.’s summer camp in 2015, Ms. Nieman responded that there was not any significant progress in these areas (Tr. 944-46).
On the subject of test results being reported as standard scores, percentiles or grade equivalents, the witness was asked whether there was one type of reporting that was generally recognized in her field as less reliable than the other two. She answered, grade equivalents; she said that percentiles were “definitely more reliable” than grade equivalents (Tr.936-37).
Asked what her review of the evaluation that was D14, Arlington’s Initial Academic Evaluation dated March 11, 2014, meant to her in terms of S.T.’s functioning levels were, Ms. Nieman responded that “it definitely was striking in that it kind of jumped off the page she is a classic dyslexic student,” because of the spread between S.T.’s scores, some high, some low. On further questioning, she conceded that she had not reviewed any evaluation from anyone in which S.T. was given a classification of dyslexia (Tr. 941-43).
On cross-examination, Mr. Nieman could not recall whether she had ever shared any of her testing results with the District (Tr. 950-52).
Counsel for the District asked about the decreasing word identification scores and the same word attack scores between May of 2015 and August of 2016 and was told that these scores resulted in an increased focus on word attack skills. Then counsel asked about the result of such focus between August, 2016, and January/February, 2018, and was told that S.T. was significantly more accurate and more confident in the weekly sessions with S.T. (Tr. 953-54). The test to assess progress in word attack skills between August, 2016, and January, 2018, was the word attack subtest of the Woodcock Reading Mastery Test. Asked about whether gains had been made in work attack skills according to that test, Ms. Nieman replied that, “… she had in fact made gains but that she was decreasing in her percentile when relating it to her peers” (Tr. 955-56). Ms. Nieman conceded that S.T.’s score was one point lower in terms of percentile than she was when Mr. Nieman first came into contact with S.T. (Tr. 956).
Ms. Nieman was next asked about the word identification subtest of the Woodcock Reading Mastery Test and confirmed that S.T.’s score went from 13th percentile in May of 2015, to 1st percentile in January of 2018. Questioned as to whether this score reflected benefit from Mr. Nieman’s instruction, she replied, “As reflected by the scores on the test it’s quite devastating because it shows that the gap is widening between her peers and where she is currently functioning, but as far as looking at the percentiles, you are correct, the gap is getting bigger” (Tr. 957-58). Testimony of Petitioners’ Witness K.T., S.T.’s Mother
S.T.’s mother, Mrs. T. described S.T. as a “very complex child” with lots of interests and a large group of friends. She first noticed some trouble with S.T.’s memorizing words in the spring of S.T.’s kindergarten year and also noticed that S.T. was having some anxiety. She spoke with the teacher who recommended RTI for reading in the first grade (Tr. 990 -92).
In first grade Mrs. T. received a call from S.T.’s first grade teacher indicating that S.T. was having trouble with reading and that the teacher was putting her on an RTI list. Mrs. T. then wrote a letter to the school asking for an educational evaluation of S.T. (Tr. 994-95).
Mrs. T recalled that, at the CSE meeting of April 29, 2014, S.T.’s teacher, Mrs. Lacolla, noted that S.T. was having trouble with reading and math. But the CSE determined that it did not have enough information to classify S.T. as needing special education services. (Tr. 1000- 10). Mrs. T. then took S.T. to a developmental pediatrician who recommended that she receive remedial instruction in both reading and math. (Tr. 1002). This report was submitted to the CSE at its June, 2014, meeting. Mrs. T. also had a speech and language evaluation done and learned that S.T. had some sound/symbol issues. (Tr. 1002-04). But this report was not presented to the CSE at its June meeting although Mrs. T. had it in hand. Apparently on the basis of this report and the pediatrician’s report, the CSE decided to classify S.T. as Other Health Impaired and developed an IEP for her. S.T.’s program for the second grade year was to continue with the RTI reading help that she had started receiving before her classification during the second half of her first grade year (Tr. 1011).
Mrs. T testified that, at the end of S.T.’s second grade year, S.T. started work with Dawn Nieman and went to her camp during the summer after completing second grade. S.T. continued with Ms. Nieman after camp and S.T. was also tutored by a math teacher (Tr. 1014- 15). As to sessions with Dawn Nieman, Mrs. T testified that Ms. Nieman “… would have liked her [S] to go twice a week, maybe even three times but we couldn’t do that, we couldn’t afford to do that” (Tr. 1015).
Mrs. T said that S.T.’s third grade year was “… a very, very difficult year. She did not like school, she did not want to be part of the classroom, she spent many a night in tears, homework took hours and hours and hours. She was very much aware that she was the second stupidest from the bottom in class …” (Tr. 1016).
It was at that point that S.T.’s parents sought an evaluation from Dr. Hart of the Yale Academic Skills Clinic. She said that Dr. Hart responded “yes” to her question as to whether S.T. was dyslexic (Tr. 1018-19). The report was as of November of 2015. Mrs. T. reviewed the report with Dr. Hart in January of 2017, but did not submit it to the CSE until later. It was available to the CSE before its June 8, 2016, meeting (Tr. 1019-20).
During the June, 2016, CSE meeting Mrs. T. sought a 1:1 reading program for S.T. as recommended by Dr. Hart, but that was not added to the IEP for the fourth grade year. Instead, S.T. was placed in a special class ELA 12:1:1. She was also placed in resource room for math (Tr. 1025-280).
According to Mrs. T., S.T’s fourth grade year appeared better for S.T. She had a good personality fit with the general education teacher, and she was active in non-school activities. Mrs. T. believed that the RTI (or ASI) services that S.T. had been receiving was discontinued. (Tr. 1032).
At the June 7, 2017, CSE meeting, S.T.’s 12:1:1 ELA class was changed to a 5:1. Again, the District did not provide a specific 1:1 reading program. The reason given to Mrs. T. by the District was “That she doesn’t need 1:1, she is making gains, she doesn’t need 1:1.” Mrs. T noted that S.T. was having continued difficulties in math (Tr. 1038).
Mrs. T. supplemented S.T.’s learning at home. She used a program called Earobics during S.T.’s second and fourth grade years. This was a program that worked on sound/symbol relationships and on working memory and rhyming. She also employed Brainware Safari which addressed a higher level of cognitive skills including problem solving, working memory, and more executive functioning abilities. In addition, Mrs. T. was able to obtain portions of the Stevenson reading program and shared that with Mrs. Battle, S.T.’s second and third grade reading teacher, who used it in school with S.T. Stevenson was one of the programs that Mrs. T. said was mentioned in the Yale report (D19) (Tr. 1040-45).
For fourth grade, it was Mrs. T.’s understanding that S.T. would receive reading instruction from Mrs. Rao, who would use the Wilson reading program. She said she was told that S.T. would receive 1:1 instruction from Mrs. Rao, but in the context of a 12:1 special class. Despite her repeated requests, the IEP was never modified to provide specifically for 1:1 reading (Tr. 1046-49). Mrs. T. said that she is doing the Wilson certification herself in order to help her daughter (Tr. 1051).
Mrs. expressed her objectives for her daughter:
What we are looking for for her is a program that’s research-based, that’s sequential, that’s not taking work sheets and putting them together for her because she continues to have gaps in areas that are missed, and she is just not progressing the way that I think that she should be, the way I feel she could.
So what I want is to teach the kid how to read, you know. Looking for average everyday reading. I would like some assistance in math because she is still --- that basic number sense is still not there. …
I want her to feel good about herself, I don’t want this to be something that hinders her from continuing in high school and college and not being able to pursue. I think we are very reasonable meaning like I don’t expect she is going to be a straight A reader, and that she is not going to go for a job being an editorial newspaper person reading anything, but I just would like her to be able to read appropriately … I Just want her to learn how to read instead of this kind of hodgepodge (Tr. 1050-53).
On cross examination Mrs. T. was asked whether the speech and language evaluation done by the District in February/March, 2014, warranted support in the area of language, and she responded that, going solely on scores, there was nothing there (Tr. 1064-66). Following this, Mrs. T. obtained her own speech and language report, D-15, which, she said, was shared with the CSE at its June, 2014, meeting. At that meeting the CSE also had the results of the Woodcock-Johnson Reading Mastery test and it determined to classify S.T. as Other Health Impaired as to which Mrs. T had expressed no disagreement (Tr. 1069-72).
At the CSE meeting that produced the IEP for S.T.’s third grade year, Mrs. T. acknowledged that she heard it said that her daughter was doing well and continuing to make progress, although no specific examples of progress were given (Tr. 1074).
Mrs. T had no problem with the co-teaching of writing in the fourth grade (Tr. 1089). She acknowledged that S.T.’s fourth grade year started out well for her and that “socially she was happy.” She said that S.T. was having a good beginning of fourth grade in part because homework was a little bit less (Tr. 1091). Mrs. T.’s primary focus for her daughter was on “reading, reading, reading,” and she acknowledged that S.T. was receiving 1:1 instruction in her 12:1:1 ELA class (Tr. 1093-95). She also indicated that she knew that S was receiving instruction in the Wilson reading program in that 1:1 setting (Tr. 1095).
Finally, on cross-examination, Mrs. T. acknowledged that it was reported at a meeting of the CSE held in October, during S.T.’s then-current fifth grade year, that S.T. was doing well in her fifth grade program (Tr. 1099). Testimony of Petitioners’ Witness Dr. Lesley Hart
Dr. Lesley Hart was presented as a witness for petitioners. She has a doctorate degree in cognitive psychology with a specialty in cognitive neuroscience. She did post-doctoral work at Yale University School of Medicine and opened a clinic there to work with children who have trouble with academics, eventually becoming director of that clinic. For the past two years she has been the director of clinic in psychology at the University of Houston where she oversees students training in children neuropsychology. She is an investigator in an project that focuses on reading intervention for children in a juvenile detention center in Houston. She also spends a good deal of her time here and overseas --- including in Russia, Africa, and Saudi Arabia --- doing epidemiology research and genetic research on reading and language disorders on the behavioral side, characterizing kids in terms of their academic and neuropsychological abilities. Right now she is also working in Houston on “post adjudicated population and looking at the outcome in terms of reading growth but also in terms of genetics and mentalation, changes in mentalation and changes in electrophysiology. So brain changes.” She also testified that she has a responsibility in her department for assessment, including the “neuropsychological assessment pathway of the students who are coming through the department” (Tr. 1147-48). She in not licensed in clinical psychology (Tr. 1141).
Dr. Hart was engaged by Petitioners and performed a two day evaluation of S.T. in November of 2015, having been supplied various assessment documents from the District. Her report is in evidence as D19.
Dr. Hart employed the Kaufman Assessment Battery for Children as a test of intellectual ability. S.T.’s IQ as measured by that test was generally in the average range with no noted weaknesses (Tr. 1164). Tests also showed that visual motor integration was in average range with S.T.’s perception being much better than the motor output, but it was noted that S.T. was already receiving Occupational Therapy at school, so that was being managed (Tr. 1164). S.T.’s sustained attention was variable, but generally in the average range (Tr. 1165). Also, Dr. Hart found S.T.’s auditory attention and sustained attention and her cognitive flexibility fine (Tr. 1165). As to executive functioning and attention related behaviors, which was based upon interviews with parents and teachers, Dr. Hart said that the teachers had few, if any, concerns and that the parents had more concerns. The parents were not concerned with language functioning. On the Kaufman language tasks, S.T. did fine and had good rapid retrieval of information from memory.
With regard the mathematics, S.T. had fast and accurate retrieval and computation abilities, but was below average in concepts (Tr. 1167).
As for reading, the principal area of concern, Dr. Hart found that S.T. understood how sounds work and was competent without paper, but that she had trouble with written texts. Dr. Hart said that S.T. could not sound out even two letters. Dr. Hart opined that the ability to sound out pseudo words was the best test of ability to decode written words. She concluded that S.T. had no capability to sound out pseudo words using decoding skills (Tr. 1168). She said that S had no letter/sound correspondence and could only apply words that she had memorized or otherwise just guessed. Dr. Hart determined that S.T.’s letter and word recognition was at 2% and word reading was at 5% (Tr. 1167-70).
S’s reading fluency was okay because of her fast retrieval ability, but Dr. Hart predicted that S’s fluency would not keep up going forward because of her deficit in decoding skills (Tr. 1170-71).
S’s writing was regarded by this witness as fine and her writing fluency as far above average. Accordingly, no concerns were expressed regarding S’s writing (Tr. 1172).
Dr. Hart noted that on the Woodcock Johnson tests, S.T.’s core knowledge base was fine. The witness found that S.T. was engaged in the learning process and was a competent student, for which she credited S.T.’s parents.
Adaptive behaviors and social and emotional factors were derived by Dr. from questions and interviews. S.T.’s teachers expressed no concerns with these items, but the parents found adaptive behaviors a little bit problematic and social and emotional issues much more concerning. They reported anxiety, depression and withdrawal in their daughter’s behavior. S.T. self-reported that everything was a problem and that nothing was going well (Tr. 1175).
Dr. Hart concluded that S.T. was a bright, resilient, well behaved child. Her diagnosis of S.T. was that she had a learning disability with an impairment in reading, which, she said, was the equivalent to dyslexia (Tr. 1179-80). She also found S.T. to be anxious and depressed. (Tr. 1180).
It was the opinion of Dr. Hart that, with appropriate interventions, S.T. would be able to utilize helpful tools and have a positive future. She went on to observe that most kids can remediate and that progress could be made by the implementation of rules taught explicitly. Emphasis, she said, should be on decoding and a goal of phonological awareness. This should be done with a tested program that proceeds step by step. Such a program should be taught with fidelity (Tr. 1182-85).
Dr. Hart was asked about the goals contained in S’s IEP of June 8, 2016 (D8). She found them reasonable, but “unspecified” (Tr. 1193-94).
Talking about S.T.’s primary deficit, decoding, Dr. Hart pointed to the low score on the Kaufman testing noting that her testing and that of Dawn Nieman showed S.T.’s decoding skills somewhere between 5% and 9%. A District test that showed a decoding score of 25% was labeled an “outlier” (Tr. 1207-08).
Dr. Hart said that S.T. could learn in a small group setting, but if that does not work, she should have 1:1 instruction (Tr. 1216). She opined that, given a good intervention program, S.T.’s “lines would go up because she needs to narrow the gap between her and other children her age” (Tr. 1212).
Cross-examination by counsel for the school district pointed out that Dr. Hart possessed no licenses or certifications in the fields of psychological services or educational services and that her work had to be done under the auspices of a licensed practitioner (Tr. 1226-29). Dr. Hart also stated in response to questions that she had no training in either the Orton- Gillingham or Wilson methods of teaching reading. Asked whether she had any training with respect to any type of specialized reading instruction, she said “Well, I developed my own program.” That was in relation to the students she was working with in juvenile detention facilities in Houston (Tr. 1230).
Counsel for the District referred the witness to the Woodcock Reading Mastery Test, which had been administered by the District in March of 2014, and to which she had access to at the time of her evaluation of S.T. Dr. Hart acknowledged that the test showed that S.T. was decoding within the average range. She was next directed to the Woodcock Johnson III Test of Achievement, which she said was a test recognized in her field as yielding reliable results. She said that the word attack subtest (word attack is a test of being able to read nonsense words) were relevant to the issue of decoding and said that the test showed that S.T. was performing that test in the average range (Tr. 1247-50).
Dr. Hart said that there was nothing materially different between her assessment and the assessments she had been provided by the parents (Tr. 1267). She said that executive functioning was not a problem in school, but was variable due to attention factors. She said that S.T.’s knowledge base for science, social studies and humanities were all grade appropriate (Tr. 1277).
Dr. Hart found no specific learning disorders in any areas other than reading, but found that disorder to be of “moderate severity” (Tr. 1280). Reference was made to page 5 of Dr. Hart’s report where it was indicated that, due to her conclusion that S.T. had a reading disorder of moderate severity, she would need “more intensive instruction in order to become proficient.” When Dr. Hart acknowledged that she did not know the intensity of instruction that S.T. was receiving at school, she was asked how she could know that S.T. required more intensive instruction. Her response was that she was “not comparing things to S.,” but was comparing things to people with a mild specific learning disorder. So people with a moderate severity specific learning disability need more intensive instruction than children with a mild specific learning disorder” (Tr. 1282).
Dr. Hart stated that the scientifically-based reading programs focusing on phonics that she was recommending could be taught in small groups as long as the child is making appropriate progress; if not, “then you ramp up to one-on-one. (Tr. 1216).
Dr. Hart was next asked about the primary area that informed her about S.T.’s decoding abilities and said that was the nonsense word portion of the Kaufman test (KTEA-3) (Tr. 1285). It was brought out that that portion of the testing was brief; at first she said that test took less than two minutes, but then amended her answer to less than five (Tr. 1286). Then she said that the nonsense word decoding test was very short because S only read one of the words correctly. Next counsel explored possible reasons for poor scores on standard normalized assessments and was told that such factors as attention, lack of motivation, hunger, tiredness, and distraction could affect test results (Tr. 1288). Although, Dr. Hart could not recall the exact circumstances of her testing of S.T. in terms of these factors, she said she is typically alert to such issues (Tr. 1289).
Counsel asked whether Dr. Hart’s report concluding that S.T. had no decoding skills had in it a reconciliation with prior decoding scores on the Woodcock Johnson III, showing her scoring at 64% and the Woodcock Reading Mastery Test showing her in the average range in her word attack skills. She conceded that no such reconciliation was contained in her report (Tr. 1291-92).
Dr. Hart was next cross-examined with respect to her having labeled a 2017 WIAT-III test result showing S.T.’s decoding skills in the average range as an “outlier.” Her attention was called to the consistency of average scores in that test with the earlier average scores in the Woodcock Johnson III and the Woodcock Reading Mastery Test. She acknowledged that consistency (Tr. 1297).
Asked about her familiarity with the Leveled Literacy Intervention method, Dr. Hart said that all she knew about that was what she had seen on the internet (Tr. 1298). Asked about what she knew about the research regarding Orton-Gillinham reading method with regard to frequency and intensity of instruction, she answered that she did not know, nor did she know of the duration, intensity or frequency of the Orton-Gillingham instruction that S.T. had received from Ms. Nieman (Tr. 1299).
Finally, Dr. Hart was asked when objectives are required on IEPs, and she responded that she did not know that they were required to be on IEPs (Tr. 1300-01). Legal Framework
The Individuals with Disabilities Education Act (IDEA) mandates that children with disabilities are entitled to a free appropriate public education (FAPE). Since Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982) FAPE has been regarded as requiring the supplying to such children of special education and related services tailored to meet the unique needs of the child and to be reasonably calculated to enable the child to receive educational benefits.
Rowley, which dealt with a student who was progressing in the general education setting, had articulated a rather modest standard of advancement for such a child. More recently, the United States Supreme Court, dealing with a child who was not able to keep up with classmates, expressed a higher standard for such a child: “… to meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County School District RE-1, 137 S.Ct. 988 (2017). The Court said that careful consideration must be given to the child’s present levels of achievement, disability and potential for growth. It also stated that certain deference is due to the judgment of school authorities who must be able to support their determinations.
Prior to Endrew, New York courts have insisted on a standard of education for disabled children that was greater than Rowley dictated. See, e.g., Cerra v. Pawling Cent. Sch. Dist., 427 Fthird 186 (second Cir. 2005), which held that a child’s IEP to be adequate must be likely to produce progress, not regression, and must afford the student with an opportunity greater than mere trivial advancement. And see Mrs. G. v. Milford Board of Education, 103 F.3d 1114 (second Cir. 1997), holding that the IEP must be reasonably calculated to provide some meaningful benefit.
Since the matter under consideration in this present hearing involves the extent to which an IEP must provide a suitable education program, the following case references are germane. A CSE is not required to specify methodology on an IEP and the precise teaching methodology to be used by a student’s teacher is usually a matter to be left to a quailed teacher. M.M. v. Sch. Bd. Of Miami-Dade County, 437 F.3d 1085, 1102. Under the IDEA a school district is not required to choose a program supported by the optimum level of peer-reviewed research; rather it must choose a program reasonably calculated to enable the child to receive meaningful educational benefits in light of the student’s intellectual potential. Ridley Sch. Dist. V. M.R., 6880 F.3d 260 (3d Cir. 2012). The IDEA does not require school districts to maximize the potential of each child with a disability or provide the best possible program. Walczak v. Florida Union Free School District, 142 F.3d 119, (2d, Cir. 1998). Nor does the existence of a gap in reading level, for example, between a classified student and her same age peers indicate by itself that a school district is not providing FAPE. See H.C. and J.C. ex rel M.C, v. Katonah Lewisboro Union Free School District, 59 IDELR 108 (S.D.N.Y. 2012), affirmed by the 2d Circuit, 61 IDELR 121. Discussion and Analysis
A preliminary observation: Petitioners’ brief cites R.E. v. N.Y.C. Dept. of Educ., 694 F.3d 167 (2d Cir. 2012) as disqualifying any post-IEP evidence retroactively to support an IEP. I note that the findings herein are made on the basis of the information available to the CSE at the time of creation of the IEPs and are not based on retroactive evidence. I also note that, in any event, R.E. is not clearly applicable here. RE dealt with a tuition reimbursement circumstance where the school district attempted to shore up its IEP by introducing evidence to demonstrate what it would have provided if the student had remained in the district. In the present case any post-IEP evidence would reveal what was actually done. In any event, all post-IEP evidence in this matter either appropriately demonstrated what progress was made during a given school year or served as a predicate for future IEPs. (References to the exhibits and transcripts are made in the above sections regarding testimony of the witnesses; a number of those references are not duplicated in the discussion below.) The February 25, 2015 IEP The annual review that normally would have been held at the end of the 2015-16 school year to establish an IEP for the following year was held early, on February 25, 2015, in order to permit the participation of S.T.’s third grade special education teacher who was about to go on leave. It served, instead, to apply to the balance of the 2015-16 school year. Petitioners challenge the February 25, 2015, IEP essentially on the basis that it does not contain goals pertaining to decoding. The District defends this IEP as appropriate given the information available to the CSE at the time.
The comments in the February 25, 2015, IEP did indicate that the parents were concerned about decoding skills. Decoding support was being provided in the AIS instruction, and the parents wanted this AIS support included in the IEP (D7-2).
The question here is whether the CSE produced an appropriate IEP based upon the information that it had at its disposal at the time. The law is clear that an IEP should be judged as a “snapshot” of the student at the time of the CSE meeting. (See SRO No. 03-011, citing Roland M. v. The Concord School Committee, 910 F.2d. 983 (1st Cir. 1990). As of the February 25, 2015, meeting, the CSE had the results of a series of tests that portrayed S.T. as having an overall cognitive profile within the average range and having strength in processing speed, scoring in the high average range. A speech and language test conducted by Speech-Language Pathologist Deidre M. Convery-Bernard in February and March of 2014, concluded that S.T. “demonstrates average ability in listening, oral expression, and vocabulary knowledge at the one-word level,” and recommended that “Academic and/or Special Education support in the area of Language is not indicated” (D12-2).
An academic evaluation was conducted by Kelly Kondras, an education specialist, who administered the Woodcock-Johnson-III ACH Test. After noting that reading fluency was in the low average range, she concluded that S.T. “performed within the average range in reading, mathematics, written language, written expression and phoneme-grapheme relationships” (D14-1). Two of the subtests of the Woodcock-Johnson-III were Letter-Word Identification in which S.T. scored in the 61st percentile and Word Attack in which S.T. scored in the 64th percentile. (Petitioners expert, who was brought in at a later point stated that word attack is a key indication of decoding skills.) Although there was some variation among the other subtests, the results of these specific subtests do not highlight a deficit in decoding skills.
There were some indications of weakness in reading and math early on, but the reasons for weaknesses appeared to the District at the time to be engendered primarily from a noticed inattentiveness and diagnosis of ADHD and a concern for comprehension. From her observation of S.T. in math class, School Psychologist, Kylie Urso, noticed that she was having a hard time sitting still and that, although S.T. was “certainly intelligent,” she was having a difficult time maintaining her attention for extended periods of time whether it be in the classroom or in the 1:1 assessment setting” (Tr. 37, 39). Ms. Urso also testified that the primary focus of the CSE was on comprehension (Tr. 64). Ms. Battle also felt that inattentiveness was a factor in S.T.’s learning and presented hurdles to her progress in reading (Tr. 184). She was concerned too with comprehension and said that that was keeping her from advancing more than any weakness in decoding (Tr. 272). Accordingly, there is reason enough to see why decoding, as such, was not the primary focus of the February 25th IEP.
In light of the testing results and teacher perspectives available to the CSE at its February 25, 2015, meeting I find that the absence of a specific goal dedicated to decoding was not a disqualifying defect in the IEP and that that absence, by itself, is not an appropriate basis for a claim that the District did not provide FAPE for the school year 2015-16.
The IEP did contain acknowledgement of instruction in decoding mentioning specifically that “Her word decoding is improving.” Testimony supported the work that was being done in the area of decoding. Ms. Battle had worked with S.T. on phonics for her decoding (Tr. 181). She was asked about the following comment in the February 25th IEP report: “Reading is working on decoding and special education support is working on comprehension” (D7-1) and replied that AIS was supplying reading support in decoding and that “Mrs. T. really felt like she wanted to keep the AIS reading support in place…” (Tr. 192). The IEP comments also mentioned the parental acknowledgment of decoding instruction: “Parent expresses concern with decoding skills and would like AIS support reflected in the IEP” (D7-2).
Nicole Sheehan, a teacher with a Masters Degree in special education and literacy, taught reading to S.T. four days a week during S.T.’s second grade year. She provided AIS support and worked on phonics and comprehension “consistently for every single lesson” (Tr. 473). She testified to S.T.’s progress in phonics skills and said that that meant progress in decoding (Tr. 500-01, 503).
In addition to the CSE having information that S.T.’s scores placed her generally in the average range of abilities and above average in certain reading subtests, it had reports of S.T.’s teachers that indicated that she had been doing well in her integrated co-teaching class. School Psychologist Urso reported that, at the February 25th CSE meeting, the teachers expressed that S.T. was making gains (Tr. 61, 63). Lynette Battle, S.T.’s special education teacher with a Masters in Literacy, reported that she and the general education teacher in the second grade co-teaching class both were pleased with S.T.’s progress (Tr. 190). Ms. Battle testified that S.T. had a good second grade year and progressed satisfactorily on her goals (Tr. 173-74). She pointed out that S.T. had advanced a full year in reading level from September to February of her second grade and that she was able to read more complex texts (Tr. 185). She saw S.T. as making progress notwithstanding that she was behind her classmates.
Math and writing were also areas in which S.T. had some weaknesses. These areas of concern were adequately addressed by the February 25, 2015, IEP and were not the central focus of Petitioners’ challenge to it.
The February IEP provided for a continuation of the integrated co-teaching services as well as a small group Occupational Therapy (resulting from an OT assessment). S.T.’s program modifications of checking for understanding, refocusing and redirection, breaking down directions into smaller units and special seating arrangements were continued. Both Ms. Urso and Ms. Battle felt that the February 25th IEP was appropriate to the needs of S.T. (Tr. 68, 209- 10).
For the reasons elaborated above and because the consensus at the February 25th meeting was that S.T. had made gains in the co-teaching and AIS services that had been provided in the preceding school year, I find that the February 25, 2015, IEP was reasonably calculated to enable her to make progress that was appropriate in light of her individual circumstances.
Subsequent circumstances do not alter the finding that the IEP was appropriate. I note, nevertheless, that S.T.’s third grade year, the 2015-16 year, was a difficult one for her. In third grade things get more complex and, as Ms. Battle stated, S.T.’s decoding deficit became more apparent during third grade where “she wasn’t making the consistent progress that we would like” (Tr. 272). According to the testimony of Nicole Sheehan, who had taught reading to S.T. in second grade, when S.T.’s third grade reading teacher, Mrs. Davis, called her attention to S.T.’s not making the progress that she had made in second grade, Ms. Sheehan and Ms. Davis met with each other and with S.T.’s third grade co-teachers, Ms. Battle and Mr. Kurdi, to address the matter (Tr. 484-05). Accordingly, in January of 2016, there was a change in emphasis and approach to S.T.’s reading instruction. As noted in the report of the testimony of Ms. Sheehan above, Ms. Battle began to work on phonics for four days a week and Ms. Sheehan, one day a week. Ms. Battle used elements of the Stevenson method that S.T.’s parents had urged, and Ms. Sheehan shifted her attention to phonics, using a multi-sensory phonics approach rather than continue with the leveled literacy intervention program that she had been employing. Ms. Sheehan reported charted progress in phonics and therefore in decoding by the end of S.T.’s third grade year.
I find these efforts to mold teaching methods to fit S.T.’s changing learning circumstances to be appropriate and, since specific teaching methods do not have to be dictated in an IEP, the fact that the IEP itself was not altered as the school year progressed is not a FAPE denying defect. The June 6, 2016 IEP The CSE modified the prior year’s IEP based on testing results, including a parent- obtained report by Dr. Hart of the Yale Academic Skills Clinic, and on teacher and parent input. The June 6, 2016, IEP reclassified S.T. to Learning Disability and made some significant changes that incorporated some of the recommendations of neuroscientist Dr. Hart and reflected the difficulties that S.T. experienced during her third grade year as outlined in the preceding section of this decision. The new IEP added two special classes for ELA, on in a 12:1+1 setting and the other in a resource room 5:1 setting and continued math and science and social studies in co-teaching classes.
The goals set forth now included decoding: S.T. “will apply phonic skills and word analysis skills to correctly decode the words” (D8-13). And they included reading fluency. Her accommodations were continued. Dr. Hart, Petitioners’ expert witness, did not find fault with the decoding goals except to say that they could have been more specific.
I find that the June 6, 2016, IEP was designed to address the special needs of S.T. and did provide a plan that would permit S.T. to advance significantly in light of her disability, and it therefore, did meet the standard set forth in Endrew.
That finding having been made, it is worth noting that the testimony revealed that S.T. did make progress during the 2016-17 school year. Ms. Frischknecht, the fourth grade classroom teacher with a Masters degree in literacy, taught science, social studies, math, and writing in a co-teaching class. As spelled out in the account of her testimony, S.T. fit the profile of a student who would be in an integrated co-teaching classroom and was able to keep up with the other students. She was to understand the content of information presented and “was able to progress through our lessons.” Any extra support that was needed was provided by her or the special education co-teacher. Ms. Frischknecht also said that S.T. “did great” in her writing, although mentioning areas in which she had some difficulties and needed support.
As to how S.T. did in social studies, Ms. Frischknecht said that “She did wonderful. It was not difficult for her to keep pace with her classmates. And she said that S.T. “had no difficulties in meeting the curricular requirements for fourth grade science.” She testified that S.T. did well socially: “… she had lots of friends and was very social, happy, sometimes silly.”
Ms. Frischknecht said she had frequent contact with S.T.’s parents throughout the school year after meeting with them at the beginning of the year to go over the IEP and discuss “what are the best ways that we can best serve S.”
Ms. Frischknecht opined that S.T. “had a successful fourth grade year…based not only on the progress that she made but she seemed to enjoy herself at school and have fun.”
Jennifer Rao was S.T.’s fourth grade reading teacher in a special 12:1:1 class setting. She testified that, at the time, she was being trained in the Wilson reading method, a multi-sensory approach. She used Wilson materials and each day did drills and helped if needed before moving on. She stated that S.T. was moving up in the steps of the Wilson program and gave her opinion that S.T. was making gains in the area of reading.
Angelique Schneider was S.T.’s special education teacher from January of the fourth grade year. She worked on math, social studies and science in the co-teaching class and on math and writing daily in the resource room. She said that S.T. responded really well to her writing program and produced a lot of writing, needing support mostly in the area of organization and getting some redirection and refocusing to keep her on task. Ms. Schneider noted that, with her accommodations, S.T. was able to keep pace with her classmates. It was her view that S.T. had a very successful year in fourth grade and was happy in the fourth grade program.
I find that appropriate progress was made during S.T.’s fourth grade year.
Again, given the information that the CSE had at its June 6, 2016, meeting, I find that the resulting IEP reflected a program that was appropriately tailored to the known needs of S.T. and that it provided a plan that permitted S.T. to make progress that was appropriate in light of her individual circumstance.
I make these findings notwithstanding that the District did not adopt all of the recommendations found in the report submitted by neuropsychologist Hart. The CSE did change the classification to learning disabled on the basis of the Hart report and did embrace her recommendation for more intensive reading support, but declined to embrace her conclusion that S.T. had no decoding skills and required a 1:1 reading program that was limited to a specific reading regimen such as Wilson or Stevenson. (I note that in Dr. Hart’s testimony she stated that her recommended reading program could be taught in a small class and that resort to 1:1 could be made in the event that enough progress was not being made in the small class setting.) Ms. Battle did not agree that S.T. had no decoding skills and the testing that was done supported her view. Nevertheless, the evidence reveals that attention was paid to decoding and that a suitable eclectic, multi-sensory approach was used.
As noted above, there is no requirement that any specific teaching methodology be contained in an IEP and due deference is to be given to experienced teaching staff of a school district. Accordingly, the fact that the CSE did not adopt all of Dr. Hart’s recommendations does not establish that the District disregarded her report or that it failed to provide FAPE because it did not adopt her views entirely.
The testimony of Petitioners’ expert witness on Orton-Gillinham, Dawn Nieman, did not persuade that strict adherence to a specific reading program would have yielded any better results than were obtained by the District’s program for S.T. As the summary of testimony of Dawn Neiman spelled out above indicates, she had not produced any positive results in decoding notwithstanding her concentrated work with S.T. strictly using the Ortan-Gillinham method. (Actually, her testing indicated that negative results were obtained in this area.) Her view as to the importance of administering Ortan-Gillinham regularly and with fidelity was never brought to the attention of the CSE and, therefore, cannot be a basis for inferring that the District did not provide FAPE. The IEP for 2017-18
Petitioners challenge the June 2017-18 IEP asserting that it did not properly address S.T.’s needs in the areas of reading and math.
It is noteworthy that when the June, 2017, IEP was developed by the CSE it had information about S.T.’s fourth grade year that reflected a successful year. See the discussion of the fourth grade year in the preceding section of this decision.
The IEP provided for integrated co-teaching in math, science, social studies and ELA and also provided for special classes in math in a 5:1 setting and ELA, also 5:1. The IEP contained appropriate decoding and math goals. It also continued the supports that had been helpful to S.T.
Based on the information that the CSE had at the time and taking into consideration the report of Dr. Hart --- parts of which the CSE agreed with and parts of which it disagreed with --- I conclude that the IEP did provide for a suitably challenging education plan for S.T. that would permit her to progress in light of her recognized learning disability.
Petitioners assert that S.T. did not make meaningful or measurable progress in 2017-18. The testimony of Cara Wilser, who was the special education teacher in S.T.’s co-teaching class and her reading teacher in S.T.’s pull-out reading class (where S.T. was the only one being taught) credibly recites various areas of progress. Ms. Wilser had been teaching the the Arlington school district for over 20 years and had associate level training in the Orton- Gillingham reading method (although not certified by the O-G Academy) and was being trained in the Wilson reading program.
Summarizing her testimony --- more specifically delineated on previous pages --- she stated that S.T. fit perfectly into the integrated co-teaching class and progressed well in the group of five or six students in the reading portion of that class. She also stated that S.T. did well in the special reading class where she improved in her ability to decode words. Ms. Wilser said that S.T. was having a very successful year and that her reading volume had increased as had her writing.
Ms. Wilser used two systematic approaches to teaching reading using a multi-sensory method. Worth repeating: Asked why she did not follow the Wilson approach exclusively as the Wilson system recommended, she responded, “Because I want to do what’s best for S. and I am in contact with her and I see how she is doing … I have taken parts of [Wilson] that have been successful for my students because my main goal is to help my students. So if I need to use something from a different multi-sensory approach that works with my student, that is what I use” (Tr. 702).
I find that this approach to teaching reading by an experienced, on-the-scene teacher is appropriate and entitled to deference and need not be displaced by the recommendation of an outside expert --- even a qualified one --- who maintains that a specific reading program must be exclusively taught. The CSE cannot be regarded as denying FAPE on the basis of its preferring Ms. Wilser’s approach.
I find that S.T. did in fact make appropriate progress during the 2017-18 school year given her learning disability notwithstanding that she performs below grade level in reading, math and writing. Accordingly, I find that the District did provide FAPE to S.T. for the 2017-18 school year. Conclusion
S.T. is fortunate to have such caring parents, who naturally want the best for her. And it is more than understandable that, if they are informed that a method such as Wilson or Stevenson or Ortan-Gillinham were exclusively used and applied “with fidelity,” such use would help their daughter, they should do what they can to have the District employ such a method.
From the evidence presented, though, it is not apparent that teaching reading strictly with the Wilson or the Orton-Gillingham methods would produce better results than the methods employed by the District. Counsel for Petitioners correctly points out that research-based teaching methods are preferred. In this matter elements of acknowledged peer-reviewed methods --- Wilson, Stevenson, Ortan-Gillingham --- were used and the Leveled Literacy Intervention program developed by Fountas and Pinnell, identified as a research-based program (Tr. 446), was extensively employed by S.T.’s teachers. The teachers’ use of elements from various methods --- including the mentioned peer-reviewed programs --- is within their sphere of educational expertise and is acceptable.
Even if the evidence were persuasive that better results would be had with the systems suggested by Petitioners’ experts, the law has not gone so far as to require that they be in an IEP or that they be employed at all so long as the District has lived up to its obligation to provide a teaching circumstance that is designed to enable meaningful progress in light of S.T.’s established learning disability. See the discussion above regarding legal standards. As desirable as it may be for all students to have the very best programs at their disposal, the law to date has not required the “gold standard” of education --- as Dawn Neiman puts it --- but only such education as meets the current standard set forth in the Endrew case. And Endrew itself, citing Rowley, says that "Any review of an IEP must appreciate that the question is whether the IEP is reasonable, not whether the court regards it as ideal." Endrew, supra. at 999. And here I’ve found that the District has met the Endrew standard.
I note that the District did respond to expressed parental concerns and did conduct the appropriate tests and evaluations. It acted properly on the data that it had at its disposal at each CSE meeting. The teaching staff was diligent in its attempts to address the changing needs of S.T.
Although her teachers were not fully trained in either Wilson or O-G, some were in the process of being trained and used some materials and methods of the Wilson --- and the Stevenson --- programs. The training in Wilson is ongoing for some of the faculty at the District’s expense. Although not strictly necessary, this is an indication, at least now, that the District is attempting to equip its staff with a larger arsenal of teaching methods.
For all of the above reasons, I find that the District did provide FAPE to S.T. for the challenged years of 2015-16, 2016-17, and 2017-18, and hereby deny the relief sought and dismiss the Petition.
Date: August 2, 2018
___________________________
Robert H. Greenwood, IHO